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McLaughlin v. Colvin

United States District Court, D. Arizona

September 26, 2014

JOHN LEE MCLAUGHLIN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.

DECISION AND ORDER

SHARON L. GLEASON, District Judge.

John Lee McLaughlin initiated this Social Security action in federal district court after exhausting his administrative remedies. The matter has been fully briefed by Mr. McLaughlin and Carolyn Colvin, Acting Commissioner of the Social Security Administration.[1] Mr. McLaughlin requested oral argument, but it was not necessary to the Court's determination of this matter. For the reasons set forth below, the ALJ's decision will be reversed and remanded for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. McLaughlin is currently 41 years old.[2] He has a high school education and a commercial driver's license. His past relevant work includes approximately five years as a garbage truck driver[3] and work as a day laborer, an aluminum siding assembler, and a convenience store operator.[4] He alleges a disability onset date of August 20, 2007.[5]

I. Mr. McLaughlin's Application for Disability Insurance Benefits and Supplemental Security Income.

On March 5, 2008, Mr. McLaughlin filed an application for disability insurance benefits ("DIB") and an application for supplemental security income ("SSI").[6] He was 34 years old at that time. He listed the following conditions as limiting his ability to work: back injury, spinal stenosis, and bulging and ruptured discs.[7] The Social Security Administration denied his initial applications for benefits, and also denied his applications upon reconsideration.[8]

In January 2009 Mr. McLaughlin requested a hearing before an administrative law judge ("ALJ").[9] The hearing took place on March 28, 2011 in Phoenix, Arizona before ALJ Ronald C. Dickinson. The ALJ, Mr. McLaughlin, his attorney, and vocational expert ("VE") Marilyn Kinnier were present at the hearing. Mr. McLaughlin and VE Kinnier testified.[10]

II. The Administrative Record.

The administrative record before the ALJ reflects the following:

A. Medical Evidence.

1. Urgent Care in December 2007 and January 2008.

On December 28 and 31, 2007, Mr. McLaughlin was treated in the emergency room at Banner Desert Medical Center. On December 28, he reported low back pain radiating to his left leg, and on December 31, he reported pain "deep in the buttocks area radiating down the back of the leg" but "denie[d] any back pain."[11] His medical records indicate discharge with "sciatica, low back pain, and medication refill."[12] On January 17, 2008, Mr. McLaughlin was treated at an urgent care facility for left side pain in his back, hip, thigh, leg, ankle, foot, and toe.[13] He was prescribed Percocet, Prednisone, and Neurontin.[14]

2. Treatment at Mission Family Medical Center with Colleen McCarter, FNP, between January and March 2008.

On January 25, 2008, Mr. McLaughlin began treatment for chronic low back pain with Colleen McCarter, Family Nurse Practitioner, at the Mission Family Medical Center. Mr. McLaughlin reported his low back pain first began after a 2004 work injury but the recent onset had been "sudden following no specific incident."[15] He reported that the pain was "severe, sharp [and] stabbing, " "aggravated by lifting, sitting, standing, and walking, " and "relieved by bedrest."[16]

A February 2008 MRI revealed "mild spinal canal stenosis at the L5-S1 level, " "disc extrusion with caudal migration of the fragment at the L5-S1 level, " "disc protrusion [at the] L4-5 level, " and "[d]isc desiccation... at the L4-5 and L5-S1 levels."[17]

On March 20, 2008, Mr. McLaughlin again saw Nurse McCarter. Mr. McLaughlin reported that his back pain was controlled with Lyrica and Percocet. Nurse McCarter prescribed an anti-depressant "to satisfy [an] insurance plan requirement, although clinically, he is not depressed."[18] Nurse McCarter also noted that Mr. McLaughlin presented her with disability paperwork for completion. She completed a medical assessment on that day opining that Mr. McLaughlin was not able to sit, stand, or walk for more than one hour in each position in an eight-hour workday, and could not lift or carry more than ten pounds.[19]

3. Treatment, including surgery, with F. David Barranco, M.D., at Barrow Neurosurgical Associates and follow up with Nurse McCarter.

In March 2008, Mr. McLaughlin had a neurosurgical consultation with F. David Barranco, M.D. Mr. McLaughlin reported to Dr. Barranco that he injured his back while working in a hurricane cleanup. After seeing a physician, obtaining pain pills, and taking several weeks off from work, Mr. McLaughlin indicated that he had returned to work for three more years in the garbage hauling business, during which time his pain continued on and off, before he stopped working and moved to Arizona.[20] Mr. McLaughlin reported that in December 2007 he "awoke with severe stabbing pain in the back that then began radiating down his left" leg.[21] Since then, he reported that his leg pain had been constant, accompanied by tingling and numbness, but that the pain was palliated by medications and sitting or lying down. At the time of the hearing, Mr. McLaughlin reported he was taking Oxycodone three times per day and Lyrica.[22] Dr. Barranco's impression was "Chronic back pain with disk desiccation at L4-5, L5-S1" and "Large left L5-S1 herniated disk with S1 radiculopathy."[23] Dr. Barranco recommended a lumbar microdiscectomy for the left L5-S1 disk, a type of back surgery.[24]

On April 9, 2008 Mr. McLaughlin had back surgery pursuant to Dr. Barranco's recommendation.[25] Dr. Barranco's notes of May 9, 2008 stated the following:

Postoperatively, [Mr. McLaughlin] states the pain is not as bad, but he still has discomfort unless he takes his medications. It bothers him the most in the morning, then when he takes his medications it feels much better, and in comparison to what he had before surgery he can tell the difference when he takes his medications.[26]

Dr. Barranco noted that he "encouraged Mr. McLaughlin "to increase a walking program and begin some water walking."[27] A note from Dr. Barranco later that month indicates that Mr. McLaughlin's pain "is dramatically better" but that "his weakness and numbness persists."[28] Also in May 2008, Mr. McLaughlin reported to Nurse McCarter that he "ha[d] improved mobility" and "[m]inimal pain in his back, but residual parathesia"; that Lyrica "really helps" his nerve pain; that he had started walking therapy; and that he was "feeling much better-not so depressed and stressed."[29]

In June 2008, Mr. McLaughlin reported to Nurse McCarter that he "now has more good days than bad days and is experiencing decreased pain with increased [range of motion]."[30] In July 2008, Mr. McLaughlin reported to Nurse McCarter that he had problems with his left ankle, he wanted to discontinue narcotic pain medication, and was "considering going in to computers as a job change."[31] Later that same month, Mr. McLaughlin reported to Nurse McCarter that he was no longer taking any narcotic pain medication. He also stated that he had a "mild exacerbation of low back pain" as a result of assisting police officers in capturing someone who jumped into his backyard.[32]

Mr. McLaughlin had 17 physical therapy sessions between June and September 2008. The therapist noted that Mr. McLaughlin declined further therapy because he "was not making much progress" and had stated "it was going to be hard to get into PT because of other commitments."[33]

4. Continued treatment at Mission Family Medical Center with Nurse McCarter and Stacie Kagie, M.D., between August 2008 and February 2011, May 2009 treatment with Paul Lynch, M.D. at Arizona Pain Specialists, and December 2010 consultation with Dr. Barranco.

In August 2008, Mr. McLaughlin reported to Nurse McCarter that he had experienced increased anxiety over the past two months.[34] In September 2008, Mr. McLaughlin reported he had continuing back pain and that he had increased pain when he skipped Lyrica dosages. He also indicated that he had increased anxiety and emotional stress despite his medications.[35] However, he also reported that he could walk for about a mile before his legs started to get tired.[36]

In February 2009, Nurse McCarter's notes state that Mr. McLaughlin had gained ten pounds due to decreased activities and had not consistently been doing his back exercises.[37] That same month, her notes state that Mr. McLaughlin was "unable to exercise due to pending SS disability" and was "afraid to exercise much due to fear of injuring his back."[38] In March 2009, Nurse McCarter's notes state that Mr. McLaughlin reported "his left side radicular pain [wa]s slowly increasing."[39] In April 2009, her notes state that Mr. McLaughlin reported left leg spasming and intense radicular pain.[40] Mr. McLaughlin saw Nurse McCarter again in May 2009 when she completed another disability medical assessment, opining that Mr. McLaughlin could sit, stand, and walk for less than one hour in an eight-hour workday, could lift ten to twenty pounds, and could carry less than ten pounds.[41]

On May 22, 2009, Mr. McLaughlin was seen by Paul Lynch, M.D., at Arizona Pain Specialists.[42] At that time, Mr. McLaughlin rated his lower back pain as a 6 on a scale of 0-10. Dr. Lynch evaluated Mr. McLaughlin for placement of a spinal column stimulator and found that Mr. McLaughlin was a good candidate. Dr. Lynch found tenderness to palpation over the facet joints and decreased range of motion, but normal strength in the extremities.[43]

In June 2009, Mr. McLaughlin reported to Nurse McCarter that he would not proceed with placement of a spinal column stimulator because he was afraid of the potential side effects and because he had "about 90% pain relief at th[at] time and want[ed] to continue on his narcotic pain med."[44]

Between November 2009 and August 2010, Nurse McCarter's notes reflect that Mr. McLaughlin described his pain as "a dull ache, " but that he had "good relief" with pain medications.[45] In June 2010, Nurse McCarter noted that Mr. McLaughlin's treatment would be transferred to Stacie Kagie, M.D., because of Nurse McCarter's pending departure from the practice.[46] She also noted that Mr. McLaughlin "has been extremely compliant with his narcotic ...


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