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Palestro v. Colvin

United States District Court, D. South Carolina

December 15, 2016

Frank Palestro, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          Shiva V. Hodges United States Magistrate Judge

         This 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].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff 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.

         2. Medical History

         a. Evidence Before ALJ

         Marc 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.

         Plaintiff 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.

         On June 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.

         Plaintiff 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.

         Plaintiff 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.

         On July 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.

         On 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.

         On 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.

         On 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.

         Plaintiff 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 weeks. Id.

         On 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 tub. Id.

         Dr. 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.

         On 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.

         Plaintiff 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.

         On July 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.

         Dr. 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.

         On July 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.

         Weigle 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.

         On 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.

         On 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.

         Plaintiff 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[1]; continue home exercises; continue using a Transcutaneous Electrical Nerve Stimulation (“TENS”) unit; reduce his stress; and follow up with Dr. Olsewski. Id.

         Plaintiff 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.

         Plaintiff 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 weights.” Id.

         Plaintiff 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.

         Plaintiff 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.

         On June 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.

         On 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 months. Id.

         On 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.

         On 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.[2] 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 min.” Id.

         Plaintiff 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 spondylolisthesis. Id.

         Plaintiff 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.

         On June 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. ...


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