United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION & ORDER
Kathleen B. Burke United States Magistrate Judge.
Jeffery Abel (“Plaintiff” or “Abel”)
seeks judicial review of the final decision of Defendant
Commissioner of Social Security (“Defendant” or
“Commissioner”) denying his application for
social security disability benefits. Doc. 1. This Court has
jurisdiction pursuant to 42 U.S.C. § 405(g). This case
is before the undersigned Magistrate Judge pursuant to the
consent of the parties. Doc. 16.
reasons explained herein, the Court finds that, without a
more thorough explanation by the ALJ as to how the state
agency reviewing physicians' opinions were entitled to
the greatest weight even though their opinions were not based
on more detailed or comprehensive information than was
available to Abel's treating sources, the Court is unable
to assess whether the ALJ's decision is supported by
substantial evidence. Accordingly, the Court REVERSES
and REMANDS the Commissioner's decision for
further proceedings consistent with this Memorandum Opinion
April 19, 2016, Abel protectively filed an application
for disability insurance benefits (“DIB”). Tr.
12, 79, 93, 182-183. Abel alleged a disability onset date of
February 23, 2016. Tr. 12, 182, 202. He alleged disability
due to back surgery, spinal stenosis, diabetes, depression,
and degenerative disc disease. Tr. 79, 111, 119, 206.
initial denial by the state agency (Tr. 111-114) and denial
upon reconsideration (Tr. 119-125), Abel requested a hearing
(Tr. 126-127). A hearing was held before the ALJ on January
23, 2018. Tr. 12, 28-78. On March 26, 2018, the ALJ issued an
unfavorable decision (Tr. 9-27), finding that Abel had not
been under a disability within the meaning of the Social
Security Act, from February 23, 2016, through the date of the
decision (Tr. 13, 22). Abel requested review of the ALJ's
decision by the Appeals Council. Tr. 181. On October 10,
2018, the Appeals Council denied Abel's request for
review, making the ALJ's decision the final decision of
the Commissioner. Tr. 1-6.
Personal, vocational and educational evidence
was born in 1969. Tr. 35, 79, 182, 202. He was 48 years old
at the time of the hearing. Tr. 35. Abel is divorced and has
one adult daughter. Tr. 36. At the time of the hearing, Abel
lived in a ranch-style home with a roommate with whom he had
resided for 12 years. Tr. 37. Abel graduated from high school
and attended school to obtain a CDL -commercial driving
license. Tr. 40-41. Abel last worked in February 2016. Tr.
41. He left work to have surgery. Tr. 41. He received
short-term disability for six months. Tr. 41. His past work
includes work as a machinist and tool room supervisor (also
referred to as tool crib attendant). Tr. 42-49, 70-71.
had back surgery in February 2016 and again in May 2017.
Prior to these surgeries, Abel complained of back and leg
pain as well as problems with his neck and upper extremities.
See e.g., Tr. 491-493 (4/20/2015, neurosurgeon Dr.
Michael A. Healy, M.D., office notes); Tr. 391 (12/14/2015,
primary care physician Dr. Phillip H. Fisher, M.D., office
notes). Prior to surgery in February 2016, Abel had multiple
injections with some relief. See e.g., Tr. 349, 351,
353, 391, 455, 457, 459-460. Per Dr. Fisher's order, a
lumbar MRI was taken on March 23, 2015. Tr. 318-319.
an April 20, 2015, visit, Dr. Healy reviewed the lumbar MRI
results, noting the MRI showed a disc herniation at the L5-S1
and some degenerative changes and stenosis at ¶ 4-L5 and
L3-L4. Tr. 491. Dr. Healy did not see any issues higher up in
Abel's spine that could be causing proximal lower level
extremity weakness. Tr. 491. Dr. Healy ordered a cervical
spine MRI and an EMG/NCV of Abel's bilateral upper and
lower extremities. Tr. 492.
was performed on May 4, 2015. Tr. 403-404. Dr. Peter P.
Zangara, M.D., who performed the EMG indicated that the only
abnormal neurophysiologic feature was in the left lower limb
and related to an atrophic left extensor digitorum brevis
muscle and lack of muscle effort. Tr. 403. There was
inadequate criteria for a diagnosis of acute radiculopathy,
plexopathy, or more specific neuropathy aside from the left
common peroneal nerve. Tr. 403.
cervical MRI was performed on May 16, 2016. Tr. 355-356. It
showed early degenerative disease and acquired canal
narrowing at the C5-C6 and C6-C7 levels that was mild to
moderate; there was a focal disc protrusion at the C6-C7
level further narrowing the right lateral recess; and there
was no direct cord impingement or critical disease. Tr. 356.
Healy ultimately recommended surgical intervention due to
failure of conservative treatment. Tr. 430. On February 23,
2016, Dr. Healy performed an L4-L5 Gill decompression
followed by an interbody posterior lateral fusion. Tr.
an April 13, 2016, visit with Dr. Healy, Abel relayed that he
had been terminated from work even though Dr. Healy noted
that he saw nothing that would have precluded him from
returning to work after a legitimate rehab period. Tr. 499.
Also, Abel's insurance had been terminated so he was
unable to get any physical therapy. Tr. 499. Dr. Healy
continued Abel's short-term disability and recommended
that he continue with therapy. Tr. 499. Dr. Healy indicated
that Abel's x-rays looked good and he could be removed
from his brace. Tr. 499.
saw Dr. Fisher on April 19, 2016, for his back pain. Tr.
379-381. Abel complained of muscle aches and back pain. Tr.
380. Dr. Fisher's musculoskeletal examination findings
were “normal overall joint exam, no spinal
abnormalities detected, [and] no gross swelling[.]” Tr.
381. Dr. Fisher prescribed Oxycontin. Tr. 380.
Abel saw Dr. Healy the following month on May 18, 2016, Abel
complained of horrible back and leg pain. Tr. 498. Dr. Healy
noted Abel had no insurance and therefore could not attend
therapy or obtain any studies. Tr. 498. Healy did not see any
profound weakness, sensory loss, or reflex changes. Tr. 498.
Abel was tender in his back but there was no clear swelling.
Tr. 498. Dr. Healy also noted that Abel had applied for
disability and Dr. Healy found that to be “quite
reasonable.” Tr. 498. Abel also saw Dr. Fisher on May
18, 2016. Tr. 376-377. Abel was taking Oxycontin for pain.
Tr. 377. Abel relayed that Percocet did not “touch the
pain[.]” Tr. 377.
the remainder of 2016 and throughout 2017, Abel continued to
see Dr. Fisher for follow up regarding his back pain. See
e.g., Tr. 376-379, 558-568, 604-608, 614-647. During a
June 15, 2016, visit with Dr. Fisher, Abel complained of
severe back pain with numbness down his leg. Tr. 374. He
relayed that he was unable to afford Oxycontin. Tr. 374. Once
he had insurance, Abel wanted to start pain management. Tr.
374. Dr. Fisher prescribed Percocet and noted that he would
write Abel's prescriptions for pain medications and
notify Dr. Healy. Tr. 376.
Abel saw Dr. Healy on June 22, 2016, he had Medicaid coverage
so Dr. Healy was able to order a lumbar spine MRI that they
had been holding off on due to the expense. Tr. 497. Dr.
Healy noted that he was continuing to hold Abel off from
work. Tr. 497. Dr. Healy planned to reassess following the
MRI. Tr. 397. Abel had the lumbar MRI performed on July 15,
2016. Tr. 438-439. It showed normal alignment; some mild
edema in the posterior soft tissues without evidence of fluid
collection; and postoperative and multilevel degenerative
changes, including facet degenerative changes at the L1-2 and
L2-3; at the L3-4 - a circumferential disc bulge immediately
adjacent to the L3 nerve roots, impingement of the lateral
recesses at the L4 nerve roots, facet degenerative changes
and thickening of the ligamentum flavum with moderate canal
stenosis and mild neural foraminal narrowing; at the L4-5 -
epidural fibrosis and facet degenerative changes with mild
canal stenosis and mild bilateral neural foraminal narrowing;
and at the L5-S1 - circumferential disc bulge with a central
and left paracentral protrusion immediately adjacent to the
left S1 nerve root, facet degenerative changes, and
thickening of the ligamentum flavum with no canal stenosis.
saw Dr. Mark D. Hammerly, Ph.D., on September 2, 2016, for a
psychological consultative evaluation. Tr. 547-556. Dr.
Hammerly diagnosed major depression, recurrent, moderate and
anxiety disorder, NOS. Tr. 553. Dr. Hammerly observed that
Abel's physical medical issues appeared tied to his
psychological issues and he felt that mitigation or
alleviation of the physical symptoms was likely necessary in
order for there to be significant psychological progress. Tr.
saw Dr. Fisher on September 7, 2016. Tr. 558-562. Abel was
taking Percocet and Oxycontin for his back pain. Tr. 558. He
described the severity of his pain as moderate. Tr. 558. Once
Abel's insurance was in place, he was planning a second
surgery with Dr. Healy - a microdiskectomy. Tr. 558. Physical
examination findings were unremarkable. Tr. 560.
Abel saw Dr. Fisher on October 5, 2016, he was still having
back pain and needed a refill of his Percocet as well as
Gabapentin, which he was also taking. Tr. 563. Abel described
the severity of his pain as mild-moderate. Tr. 563. Abel had
twisted his left ankle a few weeks earlier and he relayed it
was painful to walk. Tr. 563. On examination, Dr. Fisher
noted musculoskeletal tenderness. Tr. 565.
a November 2, 2016, visit with Dr. Fisher, Abel complained of
chronic back pain that shot into his buttock and leg on the
left and sometimes on the right. Tr. 604. Abel described his
pain as severe. Tr. 604. Abel noted some relief with
Percocet. Tr. 604. Physical examination findings were
unremarkable. Tr. 606. Dr. Fisher provided Abel with a
prescription for Percocet. Tr. 607.
January and February 2017, Abel saw a pain management
physician, Elizabeth Fowler, M.D., at St. Luke's
Hospital. Tr. 667-675. During his pain management visits,
Abel had abnormal physical examination findings, including
positive straight leg raise, limited lumbar range of motion,
paraspinal tenderness bilaterally, and antalgic gait to the
left. Tr. 670, 673-674. Dr. Fowler discussed various
interventions, including increasing Abel's Neurontin, a
trial of Zanaflex, an EMG, and lumbar injections. Tr. 670,
674. Abel was considering a second surgery. Tr. 670, 674. At
the February 2017 visit, Dr. Fowler noted that Abel was
reluctant to proceed with the suggested interventions and he
should follow up with Dr. Healy. Tr. 670.
Dr. Healy had recommended a second surgery at the L5-S1
level, in February 2017, Abel sought a second opinion from
Dr. David D. Lewis, M.D. Tr. 786-787. On examination, Dr.
Lewis observed that Abel was in no apparent distress;
strength was equal in his upper extremities; strength was 4
out of 5 on plantar flexion of his left lower extremity;
reflexes were normal and symmetric; toes were
“downgoing”; Hoffman sign was negative; and gait
was normal. Tr. 787. Dr. Lewis reviewed Abel's lumbar MRI
and noted that there was evidence of a fusion at ¶ 4-5
and evidence of degenerative disc disease at the L5-S1 level
with a disc bulge to the left causing left lateral recess
stenosis. Tr. 787. Dr. Lewis informed Abel that he agreed
with Dr. Healy's recommendation. Tr. 786.
saw Dr. Healy for follow up on April 4, 2017, regarding his
low back pain and left leg pain. Tr. 595. Dr. Healy noted
that following the fusion surgery at the L4-5 level, Abel
started to develop symptoms down his left leg that were
different. Tr. 595. Dr. Healy observed a tight foraminal area
over the left L5-S1 level; positive straight leg raise and
absent ankle jerk on the left side; and slight gastrocnemius
weakness. Tr. 595. Dr. Healy noted that Abel had been treated
conservatively since his surgery in 2016 but he now
recommended a hemilaminectomy and microdiskectomy at the left
L5-S1 level. Tr. 595.
11, 2017, Dr. Healy performed a left L5-S1 hemilaminectomy
miscrodiskectomy with foraminotomy. Tr. 765-766. Following
his surgery, Abel attended physical therapy from May 31,
2017, through July 3, 2017. Tr. 707-764. Physical therapy was
put on hold in July 2017 pending further evaluation by a
neurologist. Tr. 764.
saw Dr. Fisher on May 30, 2017, for his lower back pain. Tr.
642. Abel was tender at the surgical site and described his
pain level as moderate. Tr. 642. Abel was using a 72-hour
fentanyl Duragesic patch which provided him with more
consistent pain relief. Tr. 642-643. Dr. Fisher's
physical examination findings were unremarkable. Tr. 644-645.
Healy's order, on July 10, 2017, Abel had an EMG and NCV
performed due to bilateral radicular S1 pain, numbness and
tingling that were worse in the left lower extremity than
right lower extremity. Tr. 648. The impression from the
testing was “mostly unremarkable”; there was an
“[a]bsence of left Peroneal motor to EBD possibly due
to EBD atrophy”; “mild, chronic Right, and
possibly left L5-S1 radiculopathy”; and “[n]o
motor units recorded in left thigh muscles at all (severe
upper lumbar plexopathy, L2-3-4?)[.]” Tr. 648.
saw Dr. Fisher on July 25, 2017, for a medication check,
review of his EMG and his back pain. Tr. 683-686. Abel
described his pain level as moderate to severe. Tr. 683. He
explained that his fentanyl patching was wearing off by the
third day and not providing him much relief on that third
day. Tr. 683. Physical examination findings were
unremarkable. Tr. 685. Abel had anxiety and reported having a
panic attack the day before his visit. Tr. 683, 686.
26, 2017, Abel saw Dr. Healy, complaining of persistent
bilateral lower extremity radicular type pain. Tr. 768. Dr.
Healy noted that Abel had not improved with therapy following
his surgery. Tr. 768. On examination, Dr. Healy observed no
specific weakness, reflex pathology or sensory loss. Tr. 768.
Dr. Healy reviewed an MRI and noted that there were some mild
changes at the L5-S1 and some mild degenerative changes above
the fusion but nothing that looked surgical. Tr. 768. Dr.
Healy noted that the EMG showed chronic changes. Tr. 768. Dr.
Healy did not feel further surgical intervention was
required. Tr. 768. Dr. Healy noted that Abel might require a
referral to the pain clinic and he recommended a functional
capacity evaluation to see what Abel could and could not do.
Tr. 768. Dr. Healy did not feel that Abel would be able to
return to his work as a tool and dye maker. Tr. 768.
saw Dr. Fisher on August 22, 2017, for a medication check,
depression, anxiety and back pain. Tr. 688-692. Abel was
having an increase in panic attacks. Tr. 688. He described
his pain level as severe. Tr. 688. Abel relayed that he was
going to be getting a functional capacity evaluation per Dr.