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Croteau v. Colvin

United States District Court, D. South Carolina

April 30, 2014

Edward Croteau, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

KAYMANI D. WEST, Magistrate Judge.

This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. ยง 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB") pursuant to the Social Security Act ("the Act"). For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further administrative action.

I. Relevant Background

A. Procedural History

On February 3, 2010, Plaintiff filed an application for DIB under Title II of the Act, with a disability onset date of November 6, 2006. Tr. 128-29. After being denied both initially and on reconsideration, Tr. 52-55, on February 14, 2011, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), Tr. 64-65. The ALJ conducted a hearing, taking testimony from Plaintiff and a Vocational Expert ("VE"). Tr. 31-51. The ALJ issued an unfavorable decision on February 2, 2012. Tr. 14-25. On February 27, 2012, Plaintiff requested Appeals Council review of the decision, Tr. 7-9, but the Appeals Council declined, Tr. 1-5, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on May 31, 2013. ECF No. 1.

B. Plaintiff's Background and Medical History

1. Background

Born May 15, 1949, Plaintiff was 57 years old on the alleged onset date of November 6, 2006. Tr. 128. Plaintiff completed high school. Tr. 165. Plaintiff has past relevant work ("PRW") as an auto parts store driver, inventory coordinator, and security officer. Tr. 166. Plaintiff identified the following medical conditions that limit his ability to work: hypertension, back spasms, back pain, lumbar disc problem, cervical spine problem, chronic pain, carpal tunnel, PTSD, and stenosis. Tr. 164.

2. Relevant Medical History

a. Eric Woodard, M.D.

On November 6, 2006, Dr. Eric Woodard of Faulkner Hospital, Boston, MA, performed surgery on Plaintiff. Tr. 285-86. Plaintiff's diagnosis was cervical stenosis with secondary cervical spondylotic myelopathy. Tr. 285. The procedure performed was "[p]osterior C3, C4, C5, C6 laminoplasty, open door-type with implantation of midline allograft bone grafts in C3-4 and C5-6." Id. Plaintiff returned for follow up on February 7, 2007, and Dr. Woodard noted Plaintiff had no neck pain, the issues with his hands were resolved, his arm heaviness was gone, and his arm strength was slowly improving. Tr. 287. He also noted that Plaintiff's lower back pain, which was on and off for two years, was becoming more frequent with spasms that lasted two-tothree minutes. Id.

b. Bhavesh R. Patel, M.D.

Dr. Bhavesh R. Patel[1] evaluated Plaintiff on March 26, 2007, in consultation for rightsided back pain and spasms. Tr. 302-04. Plaintiff indicated that he had been treated with Valium but that did not provide him any significant relief. Tr. 302. He also underwent physical therapy for six weeks with some temporary relief. Id. He continued to have symptoms and was placed on Motrin. Id. Plaintiff's main complaint was "right-sided back pain and spasms, " which he rated as nine out of ten on a visual analog scale. Id. Plaintiff indicated his symptoms were worse with sitting, rising from sitting, and lying on his stomach or back. Id. Upon examination, Dr. B. Patel's impression was mechanical low back pain, lumbar spondylosis, and lumbar facet syndrome. Tr. 303. Plaintiff opted to receive lumbar injections as treatment, and received L3-L4, L4-L5 and L5-S1 facet joint blocks. Id., Tr. 315. Plaintiff returned for follow up on April 25, 2007, and reported that the joint blocks gave him complete relief for the first ten days, but then his pain started to regress. Tr. 301. Dr. B. Patel noted that "[u]pon examination, lumbar spine range of motion was restricted with forward flexion to 40 degrees and extension to 10 degrees. Extension and lateral rotation caused pain bilaterally, right greater than left." Id. Dr. B. Patel planned a second set of lumbar facet blocks. Id. On May 2, 2007, Plaintiff underwent right L3-L4, L4-L5 facet joint blocks. Tr. 314. Dr. B. Patel examined Plaintiff again on May 16, 2007 with the same notation as in the April examination. Tr. 301. Dr. B. Patel planned "to order a total body bone scan to rule out for any evidence of osseous pathology attributing to his back pain" and start Plaintiff on physical therapy twice a week "to help improve his back pain and spasms." Id. When Plaintiff returned for follow up on July 26, 2007, he reported that his back pain had been improving and physical therapy helped. Tr. 300. Plaintiff continued to complain of pain at night that would awaken him. Id. Dr. B. Patel noted upon examination that Plaintiff's "lumbar spine range of motion was full with forward flexion and extension." Id. He also noted that extension and lateral rotation caused Plaintiff pain on the right, and there was mild tenderness to palpation of the lumbar paraspinal muscles. Id. Dr. B. Patel continued Plaintiff on Lidoderm patches and a home exercise routine, and started him on Ultram 50 mg. Id. Plaintiff returned on October 3, 2007 and reported he was "doing fairly well since his last visit." Id. Plaintiff noted he continued to have "intermittent right-sided lower back pain." Id. Dr. B. Patel continued treatment with Ultram and Lidoderm patches as needed, and discussed the option of "radiofrequency lesioning of the medial branches of the right-sided lumbar facets to help decrease his pain." Id. Dr. B. Patel's notes of November 27, 2007 indicate Plaintiff "underwent right L3, L4 medial branch radiofrequency lesioning" on November 9, 2007. Tr. 299, Tr. 312. Plaintiff reported no change regarding his back pain and spasms. Tr. 299. Dr. B. Patel instructed Plaintiff to continue doing his home exercises, and to give his treatment "another three to four weeks as his symptoms may still improve." Id.

Plaintiff returned to Dr. B. Patel on June 10, 2008, complaining of increasing pain in his lower back, right buttock, and intermittent right leg pain. Id. Plaintiff reported that his "mid back pain did improve after the radiofrequency procedure." Id. Dr. B. Patel ordered an MRI scan of Plaintiff's "lumbar spine to further evaluate for any evidence of a soft tissue disc herniation attributing to his back and right leg pain." Id. Dr. B. Patel's treatment notes of July 15, 2008, indicate Plaintiff was last seen on June 24, 2008, Tr. 311, and at that time received "right L5, S1 transforaminal epidural steroid injections" after his MRI scan on June 17, 2008 revealed "partial disc degeneration at the L5-S1 level and a broad-based disc protrusion, lateralizing to the right side at the L5-S1 level." Tr. 298, MRI results at Tr. 308. Plaintiff reported his pain was "about 75-80% reduced in his right leg" and he was "quite happy with the results." Id. Plaintiff returned on October 2, 2008 for follow up and reported increasing spasms and back pain. Dr. B. Patel discussed further treatment options. Tr. 297. Dr. B. Patel's November 18, 2008 treatment notes indicated Plaintiff was last seen on November 4, 2008 and "underwent a right L5, S1 transforaminal epidural steroid injection, as his leg pain was worsening." Id., Tr. 310. Plaintiff reported his leg pain was improved, but he continued to have "spasms in his mid back." Tr. 297. Plaintiff "underwent trigger-point injections to the upper, mid and lower thoracic paraspinal muscles." Tr. 296. Dr. B. Patel started Plaintiff on Amrix 15 mg to help decrease spasms and noted that at his next follow-up appointment Plaintiff would have an EMG nerve conduction study of his left lower extremity because of his complaints of paresthesias and pain in his left leg and buttock. Id. Plaintiff reported that "his left leg has occasionally given out on him." Id. On December 4, 2008, Plaintiff returned "for follow-up for EMG nerve conduction evaluation of his bilateral lower extremities." Id. The EMG nerve conduction evaluation revealed "no evidence of a lumbosacral radiculopathy, tibial or peroneal motor neuropathy." Id. Plaintiff was instructed to continue taking Amrix 15 mg as needed and Ultram for breakthrough pain. Id.

c. Medical University of South Carolina ("MUSC")

Plaintiff was examined by Sunil J. Patel, M.D. the MUSC Neurosurgery Clinic on July 21, 2009. Tr. 321-22. Plaintiff was evaluated for increased pain in his neck and recent "exacerbated pain when he looks up or strains himself physically." Tr. 321. Plaintiff was working part-time as a delivery driver and noted occasional increase in pain when he had to make several trips. Id. Dr. S. Patel noted that on exam he "did not detect any deficits." Id. Plaintiff did "have some limitation of flexion and extension, but mobility in his neck [was] quite good. His grips and reflexes [were] normal. Gait and coordination was fine." Id. Dr. S. Patel noted that Plaintiff's MRI scan showed "loss of cervical lordosis, but no canal compromise" and some disc disease. Id. Dr. S. Patel recommended physical therapy with traction, and future consideration of complete decompression with lateral mass fusion if his symptoms worsened or did not get better. Id. Plaintiff was seen again by Dr. S. Patel for a follow-up exam on August 18, 2009. Tr. 320. Dr. S. Patel noted that Plaintiff's neck stiffness was better with physical therapy, but Plaintiff complained that he was "starting to have some severe low back pain." Id. Dr. S. Patel ordered an MRI scan and noted Plaintiff would be seen for follow up by Dr. Ian Johnson, who "was involved in [Plaintiff's] cervical spinal operation when they were both in Boston." Id.

Plaintiff returned to MUSC Neurosurgery Clinic on October 6, 2009. Tr. 318-19. Elizabeth Hapke, PA-C reviewed Plaintiff's May 18, 2009 and September 18, 2009 MRIs. See Tr. 324-25. After "nonfocal physical exam" and review of "radiographic studies" the plan was "to order flexion and extension, AP and lateral x-ray of the lumbar spine." Tr. 319. Hapke noted that Dr. Johnson recommended facet injection with Plaintiff's pain management doctor. Id.

On July 26, 2011, Dr. S. Patel completed a medical statement form regarding Plaintiff's cervical spine disorders for his disability claim. Tr. 481-82. Dr. S. Patel noted that Plaintiff had neuro-anatomic distribution of pain in his hands, shoulders, back, neck, and arms; limitation of motion of the spine; motor loss in deltoids and hands; sensory or reflex loss, numb hands; loss of finger fine motor; severe burning or painful dysesthesia in shoulder, hands, and neck; and the need to change position every 15 minutes. Tr. 481. Dr. S. Patel opined that Plaintiff had severe pain, could work one hour per day, could stand and sit for 15 minutes at one time, could occasionally lift five pounds, could do no frequent lifting, could not rotate his neck to the right or to the left, could elevate his chin to a limited extent, and could not bring his chin to his neck. Id.

Dr. S. Patel performed a C2, C3, and C4 posterior cervical laminectomy on Plaintiff on November 7, 2011. Tr. 485-86. The operative note indicated Plaintiff "recently presented with weakness in his grip and difficulty walking." Tr. 485. An MRI revealed stenosis above his prior laminoplasty at C2, C3, and C4. Id.

d. Strand Regional Specialty Associates

Plaintiff was seen for a neurology evaluation by Barbara L. Sarb, DO on February 24, 2009 for complaints of numbness in his left hand, history of CTS release on the right hand, and chronic low back pain. Tr. 334-36. After examination, Dr. Sarb scheduled Plaintiff for an EMG and nerve conduction study. Tr. 335. She also got him in a TENS unit trial, and gave him a prescription for Lidoderm patches. Tr. 336. Plaintiff expressed concern regarding sleep apnea, and Dr. Sarb scheduled him for a sleep study. Id. Plaintiff returned for follow up on April 28, 2009. Tr. 332-33. His sleep study revealed that he did not have sleep apnea. Tr. 332. Plaintiff did have left carpal tunnel syndrome, and Dr. Sarb referred him to Dr. Everman for evaluation. Id. Plaintiff indicated the TENS unit helped some, but because he was getting muscle spasms in the lumbar region he wanted to try another epidural injection. Id. Plaintiff noted difficulty in using a hammer to pound nails when helping with a friend's addition, and difficulty golfing because of decreased range of neck motion and shoulder pain. Id.

Plaintiff was seen by Dr. David Everman on April 29, 2009, for evaluation of left carpal tunnel syndrome and left index finger stiffness. Tr. 337-38. Plaintiff noted his symptoms were primarily nocturnal, he did not have numbness during the day, and he had occasional symptoms with the use of keyboard. Tr. 337. After examination, Dr. Everman's impression was mild left carpal tunnel responsive to splinting and left index finger stenosing tenosynovitis. Tr. 338. Plaintiff was given an injection of 0.5 mL of betamethasone, 2 mL of 1% lidocaine plain in his left index finger. Id.

On May 1, 2009, and June 22, 2009, Dr. Sarb administered Plaintiff lumbar epidural steroid injections. Tr. 339, 354. Plaintiff returned to Dr. Sarb on October 7, 2009 for follow up for neck and back pain. Tr. 346-47. Plaintiff complained of primarily back pain and Dr. Sarb recommended he consider facet injections and not pursue surgery at that point. Tr. 346. Dr. Sarb administered Plaintiff right and left L2-L3 and L3-4 facet steroid injections on October 12, 2009. Tr. 353.

Plaintiff returned to Dr. Everman on March 1, 2010, complaining of swelling of the DIP joint of his left index finger and deformity of the nail. Tr. 447. Dr. Everman assessed Plaintiff with a mucinous cyst left index finger, recurrent left carpal tunnel syndrome, and diffused osteoarthritis. Tr. 449. Plaintiff declined surgical treatment for the cyst, and Dr. Everman gave him an injection for his carpal tunnel syndrome. Id. On May 13, 2010, Dr. Sarb gave Plaintiff a right and left L2-3 and L3-4 facet steroid injection. Tr. 450. Plaintiff returned to Dr. Everman on June 2, 2010, for evaluation of first, second, and third finger stiffness on his right hand. Tr. 451. Dr. Everman's impression after examination was "[t]enosynovitis of the right hand with catching and locking with stenosing tenosynovitis of the index, long, and ring fingers." Tr. 452. Dr. Everman provided Plaintiff with Voltaren gel samples and provided a refill of Celebrex tablets. Id. On June 16, 2010, Plaintiff complained of stiffness in his right hand. Tr. 454. Dr. Everman gave Plaintiff an injection "into the carpal tunnel of the right wrist to decrease the inflammation within the flexor tendons." Id. On September 9, 2010, Dr. Sarb gave Plaintiff facet steroid injections. Tr. 456.

On January 24, 2011, Plaintiff's spouse expressed concern to Dr. Sarb about Plaintiff's strength and noted he was having difficulty elevating his arms and difficulty painting. Tr. 457. Dr. Sarb ordered a new MRI to check for cervical stenosis. Id. Plaintiff had an MRI of the cervical spine on February 9, 2011. Tr. 459-60. Plaintiff returned to Dr. Sarb on February 18, 2011, for a neurology follow up. Tr. 461-63. Dr. Sarb noted his MRI showed "ossification of posterior longitudinal ligament C2 through C5 for his moderate stenosis at C2-C3, which has progressed slightly with bilateral foraminal stenosis." Tr. 462. She also noted Plaintiff had "moderate-to-severe right stenosis at C4-C5." Dr. Sarb planned to have Plaintiff follow up with Dr. S. Patel who he last saw in 2009. Id. For his carpal tunnel syndrome Dr. Sarb planned to repeat Plaintiff's EMG and nerve conduction study "to see if some of the hand numbness is progression of this versus cervical radiculopathy." Id. She also scheduled Plaintiff for a median branch block and prescribed Ultram 50 mg. for his facet disease. Id.

On June 14, 2011, Dr. Sarb completed two medical statement forms for Plaintiff's disability claim. The first medical statement was for Plaintiff's hand and wrist problems. Tr. 469-70. Dr. Sarb opined Plaintiff was limited to occasional fine manipulation in his right and left hands, and frequent gross manipulation in his right and left hands. Tr. 469. Dr. Sarb indicated Plaintiff's inability to perform fine and gross movements effectively was "absent" and noted Plaintiff's "fine [movement] off due to numbness can do but clumsy." Tr. 470. She opined Plaintiff suffered from severe pain. Id. The second medical statement was for Plaintiff's low back pain. Tr. 472-73. Dr. Sarb indicated the following symptoms were present on examination or testing: neuro-anatomic distribution of pain, limitation of motion of the spine, need to change position more than once every two hours, and inability to ambulate effectively. Tr. 472. Dr. Sarb opined that Plaintiff suffered from pain that was moderate to severe, could stand for 15 minutes at one time, sit for 30 minutes at one time, could work one-to-two hours per day, occasionally lift 20 pounds, frequently lift five pounds, and occasionally bend and stoop. Id.

e. Waterway Family Medicine

On November 9, 2009, Plaintiff saw Dr. Eston E. Williams, Jr. of Waterway Family Medicine as a new patient for treatment of hypertension. Tr. 365. Upon examination, Dr. Williams noted that Plaintiff's hypertension was "under control." Tr. 364. On February 2, 2010, Plaintiff returned for an "acute visit with nasal congestion and cough." Tr. 362-63. Plaintiff also stated that, while playing golf, he tried to feed a squirrel and was bitten and scratched by the squirrel. Tr. 362. Plaintiff was treated with a Zithromax Z-pack and a tetanus shot. Id. Plaintiff returned on June 28, 2010, complaining of pain in his left shoulder. Tr. 360-61. Plaintiff indicated that he played golf the prior week and the pain was worse. Tr. 360. Plaintiff indicated he had no low back pain. Id. On examination, Dr. Williams noted point tenderness and limited range of motion in Plaintiff's shoulder joint, no extreme tenderness over rotator cuff, and mild tenderness over lower lumbar midline. Id. Dr. Williams assessed Plaintiff with bursitis left shoulder and hypertension, and adjusted his medications. Id. On July 14, 2010, Plaintiff returned to Dr. Williams complaining of continued pain in his left shoulder with some radiation down the left arm. Tr. 358. Plaintiff indicated the pain returned after his second golf game. Id. Plaintiff was also evaluated for elevated blood sugar. Id. Dr. Williams' assessment of Plaintiff was bursitis left shoulder, tendonitis left shoulder long head biceps muscle, hypertension under control, and no evidence of diabetes mellitus. Id. Plaintiff was given an injection of 2% Xylocaine and 40 mg DM in his left shoulder, and instructed not to lift weight or play golf for five days. Id. Plaintiff was seen by Dr. Williams on December 1, 2010, complaining of pain in his neck that radiated into the back left shoulder and left arm, and low back pain. Tr. 430. Dr. Williams noted that Plaintiff felt depressed, had decreased energy, decreased ambition, and no interest in doing activities that he had in the past. Id. Dr. Williams provided Plaintiff with Cymbalta samples. Id.

f. Conway Medical Center

On July 21, 2010, Plaintiff underwent x-rays of his cervical and lumbar spine at Conway Medical Center ordered by Vocational Rehab of S.C. Tr. 372-73. The findings of the cervical spine were as follows:

AP and lateral views demonstrate good alignment of the vertebra. There is suggestion of posterior spinous process resection C3-C6. Prominent anterior osteophyte is present C4-C5 C5-C6 as well as C6-C7 which may be partly accounted for a longitudinal ligament ossification. There is linear ossification of the posterior longitudinal ligament C5-C7. Carotid artery calcifications are noted.

Tr. 372. The findings from the lumbar spine series were as follows:

AP and lateral views demonstrate anterior spurring at L2-L3 and L3-L4 as well as T12-L1 and L1-L2 disk space height remains preserved. There is mild facet ...

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