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Rose v. Commissioner of Social Security Administration

United States District Court, D. Arizona

March 27, 2019

Richard Rose, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          Bridget S. Bade United States Magistrate Judge.

         Plaintiff Richard Rose seeks judicial review of the final decision of the Commissioner of Social Security (the “Commissioner”) denying his application for benefits under the Social Security Act (the “Act”). The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and have filed briefs in accordance with Rule 16.1 of the Local Rules of Civil Procedure. For the following reasons, the Court vacates the Commissioner's decision and remands for further proceedings.

         I. Procedural Background

         On April 2, 2014, Plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Act. (Tr. 65.)[1] Plaintiff alleged disability beginning on April 2, 2014. (Id.) After denial on initial review and on reconsideration, Plaintiff requested a hearing before an administrative law judge (“ALJ”). (Tr. 65.) After conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Tr. 65-82.) The Social Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 1-6.) Plaintiff now seeks judicial review of this decision pursuant to 42 U.S.C. § 405(g).

         II. Administrative Record

         The record before the Court establishes the following history of diagnoses and treatment related to Plaintiff's impairments. The record also includes several medical opinions.

         A. Medical Treatment

         On February 4, 2014, Plaintiff was injured at work and went to the emergency room. (Tr. 97-98, 314.) Plaintiff complained of a spasm in his lumbar spine that was worse with movement and better with rest. (Id.) On examination Physician Assistant (“PA”) Mary Matherly found tenderness to palpation in the bilateral lumbar paraspinal muscles and into the bilateral SI joints and significant decreased range of motion secondary to pain. (Tr. 315.) PA Matherly diagnosed Plaintiff with acute chronic lumbar pain. (Id.)

         On February 24, 2014, Plaintiff sought treatment at the Core Institute and complained of low back pain with spasms and right leg pain. (Tr. 320.) On examination of Plaintiff's lumbar spine, Ali Araghi, D.O., found decreased range of motion due to pain, tenderness to palpation, and painful facet loading. (Tr. 322.) Dr. Araghi noted that a June 2013 MRI of Plaintiff's lumbar spine showed “central disc protrusion at ¶ 4-5 with pressure on the bilateral L5 nerve roots and moderate central canal stenosis at ¶ 4-L5.” (Id.) Dr. Araghi prescribed Naproxen and Flexeril and ordered a lumbar MRI. (Tr. 323.) The MRI, performed on March 7, 2014, showed “interval increase in central focal disc extrusion at ¶ 4-5, ” “severe central canal stenosis at ¶ 4-L5 with impingement upon the transiting nerve roots, ” “right paracentral focal disc protrusion at ¶ 5-S1 which . . . contacts the transiting right S1 nerve root, ” and “right lateral disc protrusion at ¶ 2-L3 which may contact the exiting right nerve root.” (Tr. 344.)

         On March 5, 2014, Plaintiff saw Michael Winer, M.D., regarding his low back pain. (Tr. 417.) On examination, Dr. Winer found full range of motion in the cervical spine with “minimal tenderness.” (Tr. 418.) He also observed “lumbar tenderness with right sciatic notch tenderness, ” decreased lumbar range of motion with pain, pain with extension and side bending, positive straight leg test positive bilaterally, and decreased sensory distribution at ¶ 5. (Tr. 419.)

         An x-ray of Plaintiffs lumbar spine, taken May 1, 2014, showed disc space narrowing at ¶ 4-5 and L5-S1 with anterior marginal osteophytes, decrease in disc space height at ¶ 4-5 and L5-S1 and degenerative retrolisthesis of L4 onto L5. (Tr. 44.) That same day, an MRI of Plaintiff's lumbar spine showed increased herniation at ¶ 4-S1 level causing severe lateral recess stenosis and moderate central canal stenosis. (Tr. 46.)

         On May 6, 2014, Dr. Winer noted increased lumbar stenosis and objective findings of lumbar and right leg radicular pain. (Tr. 352.) He administered lumbar epidural steroid injections at ¶ 4-5 and L5-S1. (Tr. 353.) On May 22, 2014, Plaintiff saw Dr. Winer with complaints of low back pain and neck pain with tingling into his right hand. (Tr. 423.) On examination Dr. Winer found tenderness in the paracervical area, restriction in head turning, some tingling and dysesthesia in the right forearm toward the thumb, lumbar tenderness, decreased range of motion with pain, positive straight leg test on the right, decreased muscle bulk in the right calf, and weakness in flexors. (Tr. 424.) Plaintiff reported that the epidural injections provided “good relief” for two to four days before the pain returned. (Id.) Dr. Winer recommended repeating the epidurals in three to four weeks and recommend a cervical MRI and x-rays. (Tr. 424-25.) On June 6, 2014, an MRI of Plaintiff's cervical spine showed “mild disc height loss at ¶ 5-C6 and C6-C7.” (Tr. 345.) There was no spinal stenosis in the cervical spine. (Id.) That same day, an x-ray of Plaintiff's lumbar spine showed “moderate discogenic degenerative changes” at ¶ 5-S1 with “[s]light lower lumbar dextroscoliosis.” (Tr. 346-47.)

         At a July 22, 2014 appointment with Dr. Winer, Plaintiff complained of lower back pain and leg pain. (Tr. 348.) On examination Dr. Winer observed decreased lumbar range of motion, and decreased sensation in the right lower calf with atrophy. (Id.) Dr. Winer gave Plaintiff lumbar epidural steroid injections at ¶ 4-5 and L5-S1. (Tr. 349-50.)

         During an August 14, 2014 appointment with Dr. Winer, Plaintiff complained of continued neck pain. (Tr. 425.) On examination Dr. Winer found cervical tenderness, decreased range of motion, decreased right bicep reflex, significant right bicep weakness, one-half inch of atrophy of the right forearm, and decreased sensation with upper arm extension. (Tr. 425-26.) On referral from Dr. Winer, on September 17, 2014, Plaintiff saw John Jones, M.D., for an evaluation of neck pain with numbness and tingling into his right arm. (Tr. 356.) On examination Dr. Jones found cervical tenderness over the left lower cervical pillar, abnormal cervical range of motion limited on the left lateral rotation, cervical pain with motion, reduced strength, and abnormal Spurling's maneuver. (Tr. 358.) Dr. Jones diagnosed cervical spondylosis, herniated nucleus pulposus, and right C6 radiculopathy. (Tr. 359.) Dr. Jones prescribed physical therapy for the cervical spine. (Id.)

         On September 30, 2014, Dr. Winer performed lumbar decompression and lumbar fusion on Plaintiff. (Tr. 370-73.) In an October 24, 2014 note, Dr. Winer stated that an October 22, 2014 x-ray of Plaintiff's lumbar spine x-ray “look[ed] good.” (Tr. 431.) In a November 2014 treatment note, Dr. Winer noted that Plaintiff was making progress but still complained of back pain. (Id.) On February 25, 2015, Dr. Winer noted that Plaintiff had made some progress but, at four months after surgery, Dr. Winer expected better range of motion and less lumbar pain. (Tr. 511.) Because of lack of progress noted on Plaintiff's x-ray, Dr. Winer ordered a bone growth stimulator. (Id.) During an April 16, 2015 appointment, Dr. Winer found limited mobility in Plaintiff's lumbar spine, and negative straight leg raising, except some hamstring tightness. (Tr. 509.) On June 3, 2015, Dr. Winer found tenderness at ¶ 4-5 and L5-S1, decreased lumbar range of motion, “possible delayed union of the fusion, ” and he noted that Plaintiff was making slow progress with a bone growth stimulator and physical therapy. (Tr. 510.) Dr. Winer recommended continued physical therapy. (Id.)

         During a February 10, 2016 appointment with Dr. Winer, Plaintiff complained of low back pain, right buttock pain, right leg pain, SI joint pain, and persistent stiffness with limited range of motion. (Tr. 434.) On examination Dr. Winer observed that Plaintiff “walk[ed] with apparent stiffness and mov[ed] in a protected fashion.” (Tr. 436.) Plaintiff had a limited cervical range of motion, thoracic and lumbar paraspinal tenderness, SI joint tenderness, “minimal” muscle spasm in the right paraspinal area, limited flexion, focal pain in the right SI joint area with focal tenderness, and positive thigh thrust on the right. (Id.)

         On February 24, 2016, an MRI of Plaintiff's cervical spine showed degenerative disc disease at ¶ 5-6, broad-based disc height, moderate bilateral foraminal stenosis, minimal central stenosis, broad-based central disc bulge with moderate bilateral foraminal stenosis at ¶ 6-7, and “no central stenosis.” (Tr. 584.)

         On June 9, 2016, Plaintiff saw Edward Song, M.D., and complained of worsening neck pain. (Tr. 578.) Plaintiff reported that recent epidural injections provided relief for a few days. (Tr. 578, 595, 603.) On examination, Dr. Song found diminished sensation in the left arm, diminished left grip strength, and diminished left bicep strength. (Tr. 580.) Dr. Song recommended a cervical discectomy and fusion to address Plaintiff's foraminal stenosis at ¶ 5-7. (Id.)

         B. Examining Physicians' Opinions

         1. Terry McLean, M.D.

         On May 9, 2014, Dr. McLean conduced an independent medical examination of Plaintiff for the First Medical Advisory Group. (Tr. 34.) On examination Dr. McLean found that Plaintiff could heel and toe walk and perform a tandem gait. (Tr. 39.) Plaintiff had no tenderness in the cervical or thoracic spine. (Id.) Dr. McLean observed a “trace limp on the right side, ” a shallow knee bend, tenderness in the lower right foraminal area, bilateral lumbosacral tenderness, right sciatic notch tenderness, decreased lumbosacral range of motion, and positive slump test. (Tr. at 39-40.) Dr. McLean stated that Plaintiff had “progression in the size of herniation at the L4-5 level [that had] created more stenosis at the L4-5 level . . . and further injury to the disc.” (Tr. 41.) Dr. McLean opined that Plaintiff was limited to lifting ten pounds but could “more frequently” lift five pounds. (Tr. 42.) Dr. McLean opined that Plaintiff should change positions at least every hour and could “walk upwards of a half hour.” (Id.)

         Dr. McLean examined Plaintiff again on December 1, 2015. (Tr. 25.) On examination Dr. McLean found decreased cervical range of motion, decreased lumbar range of motion, and decreased sensation in the nondermatomal distribution in his entire right leg. (Tr. 29-30.) Dr. McLean noted that Plaintiff's fusion was “solid” and there was “no further compression.” (Tr. 32.) Straight leg raising test was negative and Plaintiff had full strength in all extremities. (Tr. 30-31.) Dr. McLean stated that there were “very little” objective findings. (Tr 32.) Dr. McLean opined that Plaintiff could lift up to forty pounds infrequently and “upwards of 15-20 pounds” “more frequently.” (Id.) Plaintiff must change position “at least every hour with sitting and every 30 minutes with standing and walking.” (Id.)

         2. ...


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