United States District Court, D. Arizona
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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