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Western v. Berryhill

United States District Court, M.D. Tennessee, Northeastern Division

February 20, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security,[1] Defendant.



         Pending before the court in this Social Security action is Plaintiff Garry Western's Motion for Judgment on the Administrative Record (Doc. No. 20), to which the Government has responded (Doc. No. 22). Western has filed a reply. (Doc. No. 27.) Upon consideration of these filings and the transcript of the administrative record (Doc. No. 6), [2] and for the reasons given below, the undersigned Magistrate Judge RECOMMENDS that Western's motion for judgment be GRANTED, the decision of the Commissioner be REVERSED, and the cause be REMANDED for further administrative proceedings consistent with this opinion.

         I. Introduction

         Garry Western filed an application for disability insurance benefits (DIB) under Title II of the Social Security Act on February 22, 2010, alleging disability onset as of December 19, 2008, due to a back injury, spinal stenosis, sciatica, and lower leg and back pain. (Tr. 108, 155, 159.) His claim was denied at the initial and reconsideration stages of review by Tennessee Disability Determination Services (DDS). Western requested de novo review of this claim by an Administrative Law Judge (ALJ). The ALJ hearing was held on August 16, 2011, and Western appeared with counsel and gave testimony. (Tr. 25-49.) Western's wife also testified. The ALJ issued a decision in which he found Western not disabled. (Tr. 749-57.) The Appeals Council denied Western's request for review of that decision (Tr. 762-64.) Western subsequently appealed to this court for review of the ALJ's decision. Western v. Social Security Administration, No. 2:12-cv-00025 (M.D. Tenn. 2012). After filing its answer and a transcript of the administrative record, the Government moved for reversal and remand of the agency decision, which was granted without opposition on September 7, 2012.[3] (Tr. 769.)

         On remand, the case was heard by a different ALJ. That hearing was held on August 15, 2013, and Western again appeared with counsel and testified. (Tr. 661-717.) Western's wife testified, as did a vocational expert. A supplemental hearing was held on April 7, 2014, in which Western's treating psychiatrist and a second vocational expert testified. (Tr. 630-60.) At the conclusion of the supplemental hearing, the ALJ took the matter under advisement until October 2, 2014, when she issued a written decision finding Western not disabled. (Tr. 604-17.) That decision contains the following enumerated findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2014.
2. The claimant has not engaged in substantial gainful activity since December 19, 2008, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: obesity, depression, anxiety, bipolar disorder, alcohol dependence in reported remission, degenerative disc disease in the lumbar spine status post herniated disc at ¶ 5-S1 and surgery, coronary artery disease status post unsuccessful attempt to open chronically occluded LAD and RCA (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except standing and/or walking up to 4 hours in an 8-hour day 30-minutes at a time; sitting for up to 8 hours in a day; avoiding hazards, heights, exposure to pulmonary irritants, crawling, and kneeling; avoiding climbing ladders, ropes, and scaffolds; occasionally climbing ramps and stairs; occasionally balancing, stooping, and crouching; occasionally reaching overhead; understanding, remembering, and carrying out simple and detailed but not complex instructions.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on March 11, 1978 and was 30 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from December 19, 2008, through the date of this decision (20 CFR 404.1520(g)).

(Tr. 606-07, 609-10, 615-17.)

         On December 8, 2015, the Appeals Council denied Western's request for review of the ALJ's decision (Tr. 585-88), rendering that decision final. This civil action seeking review was timely filed on February 8, 2016. 42 U.S.C. § 405(g).

         II. Review of the Record

         A. Medical Evidence

         Western was born on March 11, 1978. (Tr. 108.) He dropped out of high school, but got his GED and attended “about three years of college” to become certified as a paramedic. (Tr. 28, 1946.) He was several years into his career as a paramedic when, on November 9, 2005, he experienced “the acute onset of back pain while lifting a patient on the job.” (Tr. 2257.) A lumbar MRI performed on November 15, 2005, showed a “left paracentral disc protrusion L5-S1.” (Tr. 333.) He was treated by neurosurgeon Joseph Jestus, M.D., from December 2, 2005, to April 25, 2006, for what Dr. Jestus diagnosed as a lumbar sprain or strain. (Tr. 2257-2272.) On Dr. Jestus's referral, Western participated in physical therapy at Cookeville Therapy Center from December 6, 2005, to April 17, 2006. (Tr. 2215-2251.)

         Western re-injured his lower back while working as a paramedic on December 19, 2008, the alleged onset date of disability, and was treated at the Smith County Memorial Hospital. (Tr. 230-36.) On January 13, 2009, he was evaluated by Dr. Roy Terry, M.D. (Tr. 270.) Dr. Terry noted the cause of injury as “Mr. Western . . . lifting a 325 to 350 pound patient in the line of his employment at Smith County Ambulance Service.” (Id.) Western reported that he had previously suffered a low back injury in 2005 lifting patients and was told at that time he had a bulging disc. (Id.) In 2005, “he rested for eight to nine months before going back to regular work.” (Id.) He had “had complaints since that time and has been present off and on with his back.” (Id.) The physical exam findings were negative (“negative straight leg raise, ” “no pain or range of motion of the hip bilaterally, ” no motion or strength deficits, etc.) but Western did “have pain, however, down the left side in a pattern consistent with an L5 or S1 area.” (Id.) Dr. Terry prescribed Skelaxin, Celebrex, and Lortab and referred Western to physical therapy. (Id.)

         A lumbar MRI performed on February 17, 2009, by referral of Dr. Terry showed the following:

Impression: L3-S1 multilevel spondylosis including disc protrusions at each of these levels. Findings are greatest at ¶ 5-S1 where there is mild to moderate left posterolateral probable disc protrusion with mild left lateral recess and left foraminal stenosis and slightly left S1 nerve impingement.

Tr. 272-73.) On March 10, 2009, Western received a lumbar epidural steroid injection ordered by Dr. Terry. (Tr. 271.) On March 31, 2009, Dr. Terry reviewed the February MRI and wrote that it “does show evidence of a subligamentous disc herniation per my opinion, and it does show per the prior report that was done in 2005 . . . the gentleman did have a left paracentral disc protrusion at ¶ 5-S1.” (Tr. 266.)

         On May 22, 2009, Western began treatment with Gray Stahlman, M.D. (Tr. 346.) Dr. Stahlman described Western as “a healthy, although heavy-set gentleman in no acute Distress” who was “6 feet and 2 inches tall, and 268 pounds.” (Id.) Dr. Stahlman's examination findings were mostly negative (“no muscular spasm, ” “no motor, sensory, or reflex deficits in his lower extremities bilaterally, ” “hips have full range of motion bilaterally, ” “negative straight leg raise test on the right, ” “good pedal pulses, ” “normal gait”); the positive exam findings were limited to “slight decreased lumbar lordosis, ” some slowness in forward flexion from the waist, and a “positive straight leg raise test on the left with left posterior buttock and thigh pain some back pain.” (Id.) Dr. Stahlman reviewed the February lumbar MRI and, like Dr. Terry, noted that it showed a herniated lumbar disc (“He has a disc herniation at ¶ 5-S1 on the left, which is extruded.”). (Id.) In formulating his recommendations, Dr. Stahlman noted that, “[w]hile he does have radiographic evidence of degenerative change, he has been asymptomatic” and he “presents a difficult challenge because of the predominance of axial back pain.” (Id.) Noting that “lumbar fusion in a gentleman so young is fraught with potential downsides, ” Dr. Stahlman recommended lumbar discectomy at ¶ 5-S1 on the left “to attempt to alleviate his radicular symptoms and help to reduce his back pain symptoms.” (Id.) The discectomy surgery was performed on July 6, 2009, and Dr. Stahlman's operative report confirms the identification and removal of the “disc herniation.” (Tr. 349-50.) Dr. Stahlman further noted that “[t]he disc space was considered degenerative and narrowed, ” “loose fragments” were removed from the disc space, and a “calcified disc annulus was also excised.” (Id.)

         A subsequent trial of a work hardening program, intended to help Western return to his job, caused Western's back pain to recur and brought on persistent left lower extremity radicular pain. (Tr. 341.) Dr. Stahlman ordered a repeat MRI and an epidural steroid injection, which failed to relieve Western's symptoms. (Tr. 327, 338-40, 351.) On December 18, 2009, Dr. Stahlman noted his agreement that Western “could not return safely into the EMS environment”; recommended that Western continue pain management; counseled Western not to pursue “surgical fusion for his progressive disc degenerative changes at the surgical level” at this time; and released him “with a permanent lifting restriction of no more than 30 pounds.” (Tr. 338.)

         On February 25, 2010, Western began receiving pain management treatment at the office of Jeffrey Hazlewood, M.D. (Tr. 531-33.) Dr. Hazlewood's initial impressions were:

1. Chronic low back pain and left lower extremity referred pain with a disc herniation at ¶ 5-S1. He presents primarily with lumbar axial pain status post L5-S1 diskectomy. He does have some referral down the left lower extremity to the mid calf in a S1 distribution probably, and does have evidence on examination of a previous S1 radiculopathy.
2. The repeat MRI after surgery showed some scar tissue and mild bulge off to the left, but again he presents now with primarily mechanical back pain. Overall 40% improved with surgery.
3. S1 joint pain probably referred from the lumbar spine.
4. Does seem to present with very legitimate pain, and did have a full and consistent effort on FCE.
5. Obesity.
6. Opioid dependency in the past, but off of these now. I think his risk for addiction is low.

(Tr. 532.) Dr. Hazlewood ordered a trial of Neurontin and a transcutaneous electrical nerve stimulation (TENS) unit, and he injected the left SI joint region with a total of 40 mg Methylprednisolone/3cc of 0.25% Marcaine/3cc of 1% Lidocaine. (Tr. 533.) Lortab was added to Western's medication regime soon thereafter, and that medicine in combination with the Neurontin greatly helped Western's pain (Tr. 528) until July 2010, when Western reported:

Having some lock up pain lately causing him to fall, and he landed in a split position. He has had increased pain since, and this has been present for about two weeks. He has pain in the low back referring down both lower extremities, right greater than left. He gets tingling in his right posterior thigh with no numbness . . . He describes the pain as a pressure in his low back and buttocks region. He fell yesterday morning in the kitchen because his ‘back locked up'. Average pain is 5/10 with the medication and 9/10 without it. He feels weak in both legs. Pain is worse with prolonged positions and bending.

(Tr. 526-27.)

         On August 3, 2010 Western returned to Dr. Stahlman's office “rather unexpectedly” reporting a “marked increase in his lower back pain after a fall in the yard about a month ago. . . .” (Tr. 1818.) Western said that he was “really having a bad problem. It is predominantly axial pain.” (Id.) Dr. Stahlman had x-rays taken of Western's lumbar spine which showed “disc degenerative changes at ¶ 5-S1.” (Id.) Dr. Stahlman also ordered a lumbar MRI, which was performed that same day and read as follows:

1. New focal central annular scarring seen and associated with a stable 1-2 mm posterocentral disc protrusion at ΒΆ ...

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