United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. Hodges United States Magistrate Judge
appeal from a denial of social security benefits is before
the court for a Report and Recommendation
(“Report”) pursuant to Local Civ. Rule
73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action
pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to
obtain judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”)
denying his claim for Disability Insurance Benefits
(“DIB”). The two issues before the court are
whether the Commissioner's findings of fact are supported
by substantial evidence and whether she applied the proper
legal standards. For the reasons that follow, the undersigned
recommends that the Commissioner's decision be reversed
and remanded for further proceedings as set forth herein. I.
Relevant Background A. Procedural History On February 27,
2013, Plaintiff protectively filed an application for DIB in
which he alleged his disability began on February 6, 2013.
Tr. at 74 and 157-58. His application was denied initially
and upon reconsideration. Tr. at 85-88. On February 20 and
May 7, 2014, Plaintiff had hearings before Administrative Law
Judge (“ALJ”) Dennis G. Katz. Tr. at 27-43 and
44-60 (Hr'g Tr.). The ALJ issued an unfavorable decision
on June 17, 2014, finding that Plaintiff was not disabled
within the meaning of the Act. Tr. at 11-26. Subsequently,
the Appeals Council denied Plaintiff's request for
review, making the ALJ's decision the final decision of
the Commissioner for purposes of judicial review. Tr. at 1-6.
Thereafter, Plaintiff brought this action seeking judicial
review of the Commissioner's decision in a complaint
filed on March 4, 2016. [ECF No. 1].
Plaintiff's Background and Medical History
was 50 years old at the time of the hearings. Tr. at 21. He
completed high school. Id. His past relevant work
(“PRW”) was as a police officer and a security
guard. Tr. at 49. He alleges he has been unable to work since
February 6, 2013. Tr. at 30.
Evidence Before ALJ
Samolsky, M.D. (“Dr. Samolsky”), administered
epidural steroid injections to Plaintiff's lumbar spine
on May 4 and June 1, 2011. Tr. at 369 and 370. On June 3,
2011, Plaintiff reported he was injured on May 14, while
attempting to break up a fight. Tr. at 318. He complained of
pain that radiated down his left leg, as well as tingling and
partial numbness in his left first, second, and third toes.
Id. Dr. Samolsky refilled Plaintiff's
prescription for Hydrocodone and prescribed 750 milligrams of
Relafen. Id. He cleared Plaintiff to return to work
on June 5 and instructed him to follow up by telephone after
consulting with a spine surgeon. Id.
presented to Seth L. Neubardt, M.D. (“Dr.
Neubardt”), on June 13, 2011. Tr. at 368. Dr. Neubardt
observed Plaintiff to ambulate with a normal gait; to have no
scoliosis or kyphotic deformity; to be non-tender to
palpation; to have no paravertebral spasm; to have range of
motion (“ROM”) reduced by 25%; to have intact
motor, sensory, and reflex examinations; to be able to
perform heel and toe walks; and to have a negative
straight-leg raising (“SLR”) test. Id.
He recommended Plaintiff obtain a new MRI scan and continue
receiving pain management treatment. Id.
20, 2011, magnetic resonance imaging (“MRI”) of
Plaintiff's lumbar spine showed lumbosacral spondylosis
with multilevel disc disease and neuroforaminal narrowing, as
well as facet hypertrophy at ¶ 4-5 and L5-S1, with
narrowing of the lateral recesses bilaterally at these
levels. Tr. at 271-72.
presented to John M. Olsewski, M.D. (“Dr.
Olsewski”), for a consultation regarding pain in his
low back and pain and paresthesias in his left lower
extremity on June 24, 2011. Tr. at 277. He endorsed a
two-year history of low back pain, but indicated his pain was
exacerbated on May 14, 2011, when he restrained two prisoners
who were fighting. Id. He indicated he had received
epidural steroid injections that had not improved his
symptoms. Id. Dr. Olsewski indicated Plaintiff had
normal gait and station; positive SLR test at 40 degrees in
the sitting and supine positions on the left; 5/5 strength in
the bilateral upper and lower extremities; and no pain with
ROM testing. Tr. at 277- 78. He reviewed Plaintiff's
imaging studies and assessed two-level lumbar stenosis,
spondylosis, and possible instability. Tr. at 278. He
referred Plaintiff to physical therapy and recommended a
neurology consultation to determine the level of nerve-root
involvement in his lower extremity. Id.
complained of continued pain that radiated from his back
through his legs on June 29, 2011. Tr. at 365. He indicated
his pain radiated to his lateral calf and to the sole of his
foot and that he experienced occasional numbness, tingling,
and weakness. Id. Dr. Neubardt noted that Plaintiff
was out of work because of his pain. Id. He
indicated there were no changes between the June 20, 2011 MRI
and another MRI performed on May 3, 2010, and stated he would
not recommend surgery. Id.
22, 2011, Jerry G. Kaplan, M.D. (“Dr. Kaplan”),
conducted electromyography (“EMG”) and nerve
conduction studies of Plaintiff's bilateral legs. Tr. at
395. Plaintiff reported his symptoms were worsened by
standing and walking, but noted that “sitting for any
period of time” was most likely to exacerbate his
symptoms. Tr. at 396. The testing was strongly suggestive of
lumbar radiculopathy and revealed L5 and S1 denervation that
was worse on the left than on the right. Tr. at 395 and 397.
Dr. Kaplan stated in a letter that Plaintiff's
radiculopathy was exacerbated by sitting. Tr. at 394. He
indicated Plaintiff was unable to return to work earlier than
August 26, 2011. Id.
August 18, 2011, Dr. Olsewski stated Plaintiff had evidence
of spinal stenosis with instability at ¶ 4-5 and L5-S1
and had not responded to non-surgical measures. Tr. at 274.
He explained to Plaintiff that surgery was necessary to
prevent further neurological deterioration and that there was
a 70-80% chance his leg pain would improve and a 70% chance
his back pain would improve. Id. He discussed with
Plaintiff the risks of surgery and recommended Plaintiff
engage in acute postoperative rehabilitation. Id.
August 25, 2011, Dr. Olsewski noted that Plaintiff had
received medical and cardiology clearance for surgery and
that Dr. Kaplan had found evidence of denervation of both the
L5 and S1 nerve roots bilaterally. Tr. at 268.
September 13, 2011, Dr. Olsewski performed decompression and
posterior spinal fusion surgery at Plaintiff's L4-5 and
L5-S1 levels. Tr. at 263-65.
followed up with James McGaughan, RPA-C (“Mr.
McGaughan”), in Dr. Olsewski's office for a wound
check on September 28, 2011. Tr. at 291. Mr. McGaughan
replaced Plaintiff's bandages and positioned an external
bone stimulator. Id. He referred Plaintiff to Mark
R. Weigle, M.D. (“Dr. Weigle”), for outpatient
physical therapy and instructed him to follow up in two
October 26, 2011, Dr. Olsewski noted that Plaintiff's
surgical wound was clean and dry and that Plaintiff was
engaging in physical therapy on his own because he could not
afford his copayments. Tr. at 289. He indicated
Plaintiff's paresthesias had improved and that his motor
strength had nearly returned. Id. He stated
Plaintiff was capable of driving, swimming, and bathing in a
Olsewski noted Plaintiff was making slow, but steady
improvement on December 7, 2011. Tr. at 287. He indicated
Plaintiff continued to complain of radicular symptoms, but
that x-rays showed consolidation of his fusion. Id.
He stated Plaintiff was not capable of returning to his
previous level of occupation at the time of the evaluation.
Id. Dr. Olsewski indicated Plaintiff was incapable
of traveling to and from job duties, bending, twisting,
lifting, changing clothes, putting on shoes and socks, or
dressing himself. Tr. at 298.
January 25, 2012, Mr. McGaughan indicated Plaintiff's
back pain was greatly improved following surgery, but that he
had had experienced some muscular discomfort after returning
to his job as a police officer. Tr. at 284. Mr. McGaughan
observed Plaintiff to have 5/5 motor strength in his upper
and lower extremities; 1 deep tendon reflexes
(“DTRs”); a well-healed surgical scar; negative
SLR test; negative Patrick and Fabere maneuvers; and negative
Hoffman, Babinski, and clonus signs. Id. X-rays of
Plaintiff's lumbar spine showed his instrumentation to be
in excellent position and his bone graft to be consolidating.
Id. Mr. McGaughan and Dr. Olsewski recommended
Plaintiff continue to use a bone stimulator and begin active
ROM exercises. Tr. at 285.
reported back pain and a shooting pain down his legs on April
4, 2012. Tr. at 279. He stated his pain had improved since
his surgery, but that it continued to be exacerbated by his
work as a police officer. Id. Mr. McGaughan observed
Plaintiff's back pain to be reproduced by hyperextension
on forward flexion. Id. He indicated Plaintiff had
5/5 motor strength; 1 DTRs; negative SLR test; negative
Patrick and Fabere maneuvers; and a well-healed surgical
scar. Id. He recommended Plaintiff continue physical
therapy and obtain a prescription for Lyrica from Dr.
Samolsky. Tr. at 280.
12, 2012, Plaintiff reported some improvement in his back and
leg pain following surgery, but indicated his pain was
exacerbated by standing for long hours in his job as a police
officer. Tr. at 275. Mr. McGaughan observed Plaintiff to have
5/5 motor strength in his lower extremities; 1 DTRs;
negative SLR test in the seated and supine positions;
negative Patrick and Fabere maneuvers; a well-healed surgical
scar; and negative Hoffman, Babinski, and clonus signs. Tr.
at 275. X-rays showed instrumentation from L4 to S1 that was
in excellent position with a solid fusion. Id. Mr.
McGaughan and Dr. Olsewski signed a statement that indicated
Plaintiff “should still be considered 100% disabled
from his previous level occupation as a police
officer.” Tr. at 276.
Olsewski completed a Workers' Compensation summary on
July 11, 2012. Tr. at 269-70. He stated Plaintiff was forced
to return to work against his medical advice just four months
after his surgery. Tr. at 269. He indicated this contributed
to the slowing of Plaintiff's healing process and that
Plaintiff “was not even close to having completely
fused” when he returned to work. Id. He stated
Plaintiff was “incapable of returning to full-time
police officer duties”; was “incapable of
returning to police officer duties of any capacity, including
light, limited, or restricted duty”; and was
“incapable of wearing a gun belt.” Id.
He further indicated as follows:
As in my initial consultation note of June 24, 2011, the
patient is unable to return to full time police officer
duties, and I do not feel that he is safe to either protect
himself nor the public in his present state. He is 100%
impaired from any police officer duties including light,
limited, or restricted duty. This condition will be
permanent, he has had a 2 level lumbar arthrodesis.
Tr. at 270.
23, 2012, Plaintiff continued to report severe back spasms
and pain radiating to his lower extremities. Tr. at 416-17.
He complained of persistent radicular symptoms and difficulty
sitting or standing for long periods of time. Tr. at 417. Dr.
observed Plaintiff to have normal and symmetric reflexes;
diminished sensation below the knee on the left side and in
the right anterior thigh; difficulty with lumbar ROM;
palpable spasms in the upper to mid-lumbar paraspinals;
limited ROM with 15-20 degrees of extension and 60-70 degrees
of flexion; and good motor power throughout his lower
extremities. Id. He indicated Plaintiff was unable
to perform full duty as a police officer and may be unable to
tolerate limited or restricted duty. Tr. at 418. He stated
Plaintiff was likely to have problems with riding on a train
and sitting for prolonged periods. Id.
August 1, 2012, Dr. Olsewski stated nonsurgical measures had
proven ineffective to reduce Plaintiff's back pain and
symptoms and that surgery had been recommended. Tr. at 273.
He indicated the June 20, 2011 MRI report did not comment on
the retrolisthesis at ¶ 4 on L5 and spondylolisthesis of
L5 on S1, but that it was not uncommon for an MRI to fail to
detect such findings. Id. He sent a letter to New
York City Police Commissioner Raymond W. Kelly on September
8, 2012, regarding Plaintiff's condition, medical care,
and prognosis. Tr. at 316. Dr. Olsewski explained that
Plaintiff had undergone surgery for lumbar fusion and
decompression of three nerve-roots bilaterally. Id.
September 26, 2012, Plaintiff complained of lower extremity
pain that was worse on the left than the right; numbness in
the bottom of his foot and the top of his toes; and increased
pain in his back and lower extremities while working. Tr. at
411. He also endorsed increased numbness and pain on rainy
days. Id. Dr. Weigle observed Plaintiff to have a
depressed ankle jerk on the left; decreased sensation more in
the left than the right L5-S1 distribution; and limited
lumbar ROM. Id. He diagnosed polyradiculpoathy
involving the left S1 and bilateral L5 nerve roots without
electrodiagnostic evidence of polyneuropathy. Tr. at 412.
followed up with Dr. Weigle for a reexamination on October
17, 2012. Tr. at 408. He complained of severe pain that
radiated to his lower extremities and was worse on the left
than the right. Id. He indicated his pain was
worsened by standing on his feet to work. Id. He
stated he was unable to take Gabapentin while working because
it affected his ability to think. Id. Dr. Weigle
indicated Plaintiff's EMG results were essentially
unchanged from the prior testing. Id. He observed
Plaintiff to have forward flexion limited to 30 degrees;
extension limited to 15-20 degrees; tenderness in his
bilateral lumbar paraspinal musculature; pain with internal
rotation of his hips; positive SLR test on the left; and
decreased sensation in the L5 and S1 distribution on the
dorsum of his bilateral feet and in the lateral aspect of his
calf. Tr. at 409. He indicated Plaintiff had deficits in
mobility and activities of daily living and persistent
polyradiculopathy in the left S1 and bilateral L5 nerve roots
with slight improvement in amplitude, but prolongation of the
bilateral tibial H reflexes. Id. He advised
Plaintiff to stop work because of his inability to tolerate
prolonged standing or ambulation; recommended Plaintiff
resume use of Gabapentin, if he was not working; continue home
exercises; continue using a Transcutaneous Electrical Nerve
Stimulation (“TENS”) unit; reduce his stress; and
follow up with Dr. Olsewski. Id.
reported doing well from a neurological standpoint on
December 5, 2012. Tr. at 267. Dr. Olsewski indicated
Plaintiff was neurologically intact and had minimal back pain
on range of motion (“ROM”) testing. Id.
He stated Plaintiff was “[n]ot capable of performing
police duties.” Id. He indicated Plaintiff had
returned to work before his spine had fused, which had slowed
his healing process and exacerbated his pain level.
Id. He stated Plaintiff was incapable of returning
to full time work in any capacity, including on light,
limited, or restricted duty. Id.
complained of pain with repetitive activity on February 20,
2013. Tr. at 266. Dr. Olsewski observed Plaintiff to be
neurologically intact and to demonstrate minimal back pain on
ROM testing of his lumbar spine. Id. He stated
Plaintiff was “[n]ot capable of performing these
duties” and “would also be subject to increased
back pain with repetitive motion, even with light
presented to Jose Corvalan, M.D. (“Dr.
Corvalan”), for an orthopedic examination on May 31,
2013. Tr. at 299-301. He reported he had continued to
experienced pain since his surgery. Tr. at 299. He stated his
pain was aggravated by sitting, standing, walking, bending,
climbing stairs, lifting, and carrying heavy objects.
Id. Dr. Corvalan described Plaintiff as favoring his
right side while ambulating. Tr. at 300. He indicated
Plaintiff was unable to walk on his heels or toes; could
squat to 50 degrees; had normal station; used no assistive
device; needed no help getting on or off the exam table; and
was able to rise from a chair without difficulty.
Id. He described Plaintiff as having reduced ROM of
his lumbar spine to 40 degrees of flexion, 40 degrees of
extension, 20 degrees of lateral flexion, and 20 degrees of
lumbosacral rotation. Id. He noted Plaintiff was
tender to palpation of the lumbar spine and had a positive
SLR test at 20 degrees on the right and 30 degrees on the
left in the sitting and supine positions. Id. He
indicated Plaintiff had reduced ROM of his bilateral hips and
knees, but full ROM of his bilateral ankles and normal
strength, reflexes, and sensation. Tr. at 301. He diagnosed
low back pain radiating to the bilateral lower extremities
that was more severe on the right than the left. Id.
Dr. Corvalan stated Plaintiff “has marked limitation
sitting and standing for long period[s] of time, walking long
distance, bending, squatting, climbing stairs, lifting, or
carrying heavy objects.” Id.
reported doing well on June 5, 2013, but indicated his back
continued to bother him with repetitive activity. Tr. at 308.
Dr. Olsewski described Plaintiff as being neurologically
intact and having minimal back pain on ROM testing of the
lumbar spine. Id. He stated Plaintiff was not
capable of performing police duties and would “be
subject to increased back pain with repetitive motion, even
with light weights.” Id.
6, 2013, state agency consultant C. Pipino reviewed
Plaintiff's records and assessed his physical residual
functional capacity (“RFC”). Tr. at 69-71. He
indicated Plaintiff's RFC was as follows: occasionally
lift and/or carry 10 pounds; frequently lift and/or carry
less than 10 pounds; stand and/or walk for a total of two
hours in an eight-hour day; sit for a total of about six
hours in an eight-hour day; never stoop, crouch, crawl, or
climb ramps, stairs, ladders, ropes, or scaffolds; and
occasionally balance and kneel. Id.
November 27, 2013, Dr. Olsewski noted that Plaintiff
continued to complain of pain in his back and leg. Tr. at
307. He indicated Plaintiff was neurologically intact, aside
from a left-sided facial droop caused by Bell's palsy.
Id. He instructed Plaintiff to follow up in three
January 15, 2014, Dr. Olsewski noted Plaintiff was
“doing reasonably well, ” but would have
significant limitations on bending and twisting and would be
limited to lifting five pounds. Tr. at 306. He completed a
patient functional assessment check-off form. Tr. at 427-28.
April 16, 2014, Dr. Olsewski indicated Plaintiff had
“continued with the same level of constant pain.”
Tr. at 423. He stated Plaintiff would have “lifetime
significant limitations on bending, twisting, and a 5 pound
weight lifting limit.” Id. b. Evidence
Presented to Appeals Council On December 31, 2012, Dr. Weigle
completed a disability benefits questionnaire for the
Department of Veterans Affairs. Tr. at 449-54. He indicated
Plaintiff's diagnoses included L5 spondylosis, L5
herniated disc, chronic low back pain, and lumbar
radiculopathy. Tr. at 449. He assessed Plaintiff as having 50
degrees of forward flexion; 15 degrees of extension; 25
degrees of right lateral flexion; 25 degrees of left lateral
flexion; 15 degrees of right lateral rotation; and 15 degrees
of left lateral rotation. Tr. at 449-50. Dr. Weigle noted
Plaintiff was unable to perform repetitive-use testing
because of pain. Tr. at 450. He indicated Plaintiff had less
movement than normal, excess fatigability, and pain on
movement. Id. He assessed Plaintiff as having 3/5
strength with bilateral hip flexion, 4/5 strength with left
knee extension, and 5/5 strength with right knee extension,
bilateral ankle plantar flexion, bilateral ankle
dorsiflexion, and bilateral great toe extension. Tr. at 451.
He indicated Plaintiff had hypoactive DTRs in his bilateral
knees and ankles. Id. He stated Plaintiff had normal
sensation to light touch, except in his left lower leg/ankle
and foot/toes. Tr. at 452. He noted that the SLR test was
negative bilaterally. Id. Dr. Weigle denied that
Plaintiff had constant pain in his lower extremities.
Id. He indicated Plaintiff had mild intermittent
pain in his bilateral lower extremities and moderate
paresthesias, dysesthesias, and numbness in his left lower
extremity. Id. He noted that Plaintiff's
bilateral L4, L5, S1, S2, and S3 nerve roots were involved.
Id. He stated that Plaintiff had experienced at
least six weeks of incapacitating episodes over the prior
12-month period. Tr. at 453. He indicated Plaintiff
occasionally used a cane. Id. He cited MRIs of
Plaintiff's lumbar spine in May 2010 and June 2011 and
EMG results from 2011 and 2012. Tr. at 454. He stated
Plaintiff “cannot sit or stand, especially sitting 10
minutes makes pain severe, standing painful after 15
presented to Allan Brook, M.D. (“Dr. Brook”), for
a consultation on March 8, 2013. Tr. at 429. Dr. Brook
reviewed Plaintiff's x-ray films from June 29, 2011, and
stated that he agreed with Dr. Olsewski's assessment of
followed up with Dr. Weigle on June 18, 2014. Tr. at 431. He
complained of back pain that radiated into his left more than
his right lower extremity with burning dysesthesias.
Id. He rated his pain as a nine on a 10-point scale
and stated he was unable to sit or stand for any length of
time. Id. Dr. Weigle observed Plaintiff to have
symmetric reflexes in the lower extremities, but diminished
sensation to pinprick in the L4 and S1 distribution in his
left lower extremity and along the dorsum of his right foot.
Tr. at 432. He indicated Plaintiff had normal muscle bulk
with slight weakness limited by pain in his left lower
extremity and very limited lumbar ROM. Id. He
assessed left L4 and S1 and bilateral L5 radiculopathy with
abundant denervation potentials and polyphasic motor units,
but no polyneuropathy. Id.; Tr. at 436-37. He
indicated Plaintiff had severe deficits in mobility and
activities of daily living (“ADLs”) and stated
“[p]atient cannot tolerate any work including sedentary
work because he cannot sit or stand for any period of
time.” Id. He recommended a spinal cord
stimulator for pain management. Id.
25, 2014, Dr. Weigle noted that Plaintiff had a severe
exacerbation of his back pain; radicular pain that was worse
in his left lower extremity; severe numbness and tingling in
his left lower extremity; moderate tingling and mild numbness
in his right lower extremity; a feeling of heaviness; and
intermittent problems with standing and ambulating. Tr. at
433. He observed Plaintiff to have normal muscle bulk, but
diminished strength of 3+4/5 in his left hip girdle, 3+4/5
in his left knee extensors, and 4/5 in his left knee flexors.
Tr. at 434. Plaintiff had 3+4/5 dorsiflexion and eversion on
the left. Id. He had mild weakness of 4/5 in his
right hip girdle, but his strength was otherwise 5/5 on the
right. Id. He had diminished sensation to pinprick
and light temperature in his left L4 to S1 dermatomes.
Id. He had reduced sensation in the lateral aspect
of his distal right foot. Id. He had depressed
reflexes to left ankle jerk. Id. He had a severe
muscle spasm in his back that resulted in “essentially
no range of motion in his lumbar spine.” Id.