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BENNETT v. BARNHART

February 25, 2003

ALAN L. BENNETT, PLAINTIFF,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sean McLAUGHLIN, District Judge.

MEMORANDUM OPINION

In this case Plaintiff Alan L. Bennett has appealed the final decision of the Commissioner of Social Security denying his application for disability insurance benefits (DIB) and a period of disability under Title II of the Social Security Act, 42 U.S.C. § 401-33. The Administrative Law Judge (ALJ) determined that Bennett was not disabled within the meaning of the Act inasmuch as there were a substantial number of jobs in the national economy which he was capable of performing, including work as a sales counter worker, unskilled cashier, or unskilled general office clerk.

Plaintiff filed his application for DIB on July 24, 1997, alleging a disability onset date of May 14, 1993 due to back problems and depression. He maintained insured status as of his alleged disability onset date through December 31, 1999. Plaintiff's claim was denied at the initial and reconsideration levels of review. He received a de novo hearing before an Administrative Law Judge ("ALJ") on January 11, 1999. By written decision dated February 26, 1999, the ALJ denied Bennett's claim for benefits. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on November 7, 2001. This appeal was then timely filed. For the reasons set forth below, we will vacate the decision of the Commissioner and remand for further administrative proceedings.

I. BACKGROUND

A. Bennett's Physical Impairments

In February of 1993 Bennett suffered a work-related injury to his lower back. He received conservative treatment thereafter, including physical therapy, work hardening, chiropractic manipulation, and epidural injections. (R. 337-39.) Because of persistent symptoms, including radiating low back pain and intermittent foot numbness, he was referred for a myelography and CT scan in July of 1993 which revealed a central and right paracentral disc herniation at the L4-5 level with mild-to-moderate impression on the thecal sac. (R. 339, 423-24.) Bennett underwent a lumbar laminectomy in July of 1993, which was performed by Brian Dalton, M.D. (R. 120-26.) A subsequent MRI of the spine in September of 1993 was interpreted as showing postoperative changes at the L4-5 level with recurrent central disc herniation and encasement of the right L-5 nerve root by scar tissue. (R. 422.)

By November of 1993, Bennett exhibited an active range of motion in his lower back and had only minimal tightness in his hamstrings, quadriceps and calf muscles. He returned to work for a single day in December of 1993. Nevertheless, he continued to complain of pain in his lower back radiating down his right side as well as pain between his shoulder blades. (R. 336.) In February and March of 1994 he received trigger point injections from Robert Concilus, M.D., with whom he had begun treating in June of 1993. (R. 334-36.) He returned to light duty at work, was prescribed a membership at the YMCA, and underwent further chiropractic treatments. (R. 94, 175, 178, 322-28, 334-36, 419.) As of April 19, 1994, Dr. Concilus noted that Bennett had a fairly good range of motion in his lower back. Extension was normal, there was no tenderness in his mid-thoracic region, and he could stand on his toes and heels. (R. 332.) However, Bennett had terminated his home-exercises and chiropractic treatments because he felt they were not significantly helping him. He also had not used his YMCA membership. Dr. Concilus felt that Bennett needed to take initiative to exercise in order to avoid chronic problems, and he questioned whether this had been occurring. (Id.) On April 28, 1994, Bennett had a confrontation with Dr. Dalton over his continuing symptoms, which resulted in the termination of his employment. (R. 419.)

Two months later, Bennett began treating with his current orthopedic surgeon, James Macielak, M.D. (R. 153, 419-21.) At that time, Bennett was complaining of severe and constant pain. Dr. Macielak referred Bennett for another CT scan in July of 1994, which showed a bulging of the annulus at the L4-5 disc space. There was some suggestion that this bulging was asymmetric into the area of the foramina, consistent with a recurrent foraminal disc herniation. (R. 173-74, 417-18.) An MRI and bone scan of the thoracic spine were performed in September of 1994 and interpreted as normal. (R. 168-69.)

On November 23, 1994, Dr. Macielak performed a revision laminectomy and discectomy in order to relieve compression present at the L-5 nerve root. (R. 151-59.) By January of 1995, however, Bennett was again complaining of nearly constant back pain that worsened with physical activity. He reported experiencing leg shaking and even having his legs give out on him on one occasion. (R. 163.) On examination Dr. Macielak noted moderate paraspinal muscle spasms and exquisite tenderness in and around his incision site, as well as marked limitation in lumber extension and flexion. Straight leg raise testing produced right leg pain to the knee, but was negative on the left. X-rays taken that day showed a laminotomy defect at the L4-5 level without evidence of pars defect; a lateral view indicated a preserved disc space with no erosion. Bennett was continued on Percocet and started on Lioresal to control his back spasms. It was Dr. Macielak's opinion that Bennett was not capable of working at that time. (R. 163.)

In December of 1995, Bennett underwent a consultative evaluation by Garrett W. Dixon, M.D. (R. 181-87.) Although Bennett told Dr. Dixon that his 1994 surgery had improved his leg pain, he still complained of constant pain between his shoulders, accompanied by frequent spasms, and less intense lower back pain radiating to his right leg, accompanied with intermittent right foot numbness. He reported that his pain was aggravated by reaching forward or overhead, standing, lifting and carrying, and mitigated by lying down and taking medication. Bennett acknowledged that he had not been attending the YMCA because he felt it was "too hard on him." He reported that he could lift up to 25 pounds but could not hold it for long and that casual walking was "not bad." (R. 181.) In terms of daily activities, he claimed to be capable of doing a little fishing and tried to work on his car when he could. He also ran errands, shopped and did a little yard work; however, he found repetitious tasks bothersome and had to lie down every day for varying periods of time. At that time, Bennett was taking Talwin NX and Flexeril for his symptoms, which he found helpful. Physical therapy had reportedly made his symptoms worse. Injection therapy and chiropractic treatments had provided no lasting benefits. (R. 181-82.)

On examination, Dr. Dixon noted tenderness in Bennett's upper back, lumbar and gluteal regions. (R. 183-85.) Mild spasms were observed in Bennett's right lumbar area. Mid-calf circumference was symmetrical, sitting straight-leg-raise testing was negative bilaterally, and motor exam showed essentially normal strength in Bennett's shoulders, forearms, wrists, hands, hip, knees and ankles. Sensory testing revealed a slight decrease in the right S-1 dermatome. However, reflexes were 2 bilaterally in Bennett's biceps, quadriceps, hamstrings and Achilles. Lumbar range of motion was limited to 60 degrees flexion, 20 degrees extension, and 15 degrees laterally. He exhibited a normal casual gait, could heel and toe walk and squat without difficulty, and appeared to endure the examination without discomfort. (Id.) Dr. Dixon's impression was: 1. chronic low back pain, failed back syndrome with mild residual right L-5 radiculopathy; 2. depression (chronic); 3. alcoholism. 4. chronic thoracic pain, muscular. Bennett's prognosis for improvement and returning to any work was considered poor. Dr. Dixon wrote, "[Bennett] has failed treatment of his back pain including surgery. His ongoing pain is further complicated by longstanding alcoholism and depression. This gives him a very poor prognosis for improvement physically or functionally." (R. 184.) From a purely physical standpoint, Dr. Dixon felt Bennett could handle sedentary/light level work with breaks as needed. He limited Bennett to carrying, lifting, pushing and pulling no more than 20 pounds on an occasional basis, standing and walking for a period of "2 to less than 6 hours" out of an 8-hour workday, and sitting for less than 6 hours in an 8-hour day with the opportunity to change positions at least every 20 to 30 minutes. (R. 184, 186-87.) In addition, Dr. Dixon opined that Bennett could not crawl and needed to limit his overhead and forward reaching, especially with weighted objects. (R. 186-87.)

Bennett's residual functional capacity was also evaluated by a non-examining state agency physician in December of 1995. (R. 112-19.) The reviewing physician opined that Bennett could occasionally lift, carry, push and pull up to 20 pounds, frequently handle up to10 pounds, stand and/or walk for 6 hours out of an 8-hour workday, and sit for up to 6 hours in an 8-hour day (even without alternating positions). The physician further opined that Bennett could engage in occasional posturing and had no manipulative restrictions or other limitations with regard to his ability to reach. (Id.)

Meanwhile, Bennett continued to treat with Dr. Macielak through 1996 with persistent complaints of lower and upper back pain. On November 22, 1996, Bennett underwent a CT scan of the thoracic spine which was interpreted as normal but which, in retrospect, could be interpreted as revealing a small herniation on the left at T5-6. (R. 403, 523, 548.) The following month, Dr. Macielak ordered a thoracic muscle biopsy, which revealed a mild neurogenic component affecting Bennett's muscle tissue. (R. 390, 395, 549-50.) While the study showed no inflammation to the musculature, it did suggest some abnormal nerve conduction to that area. (Id.) A thoracic myelography with CT scanning was performed on January 20, 1997, indicating a left paracentral and medial foraminal disc herniation at T5-6, causing mild impingement on the spinal cord and thecal sac. (R. 391-92, 515-16.)

In light of these studies, Dr. Macielak recommended that Bennett see a thoracic specialist in either Pittsburgh or Cleveland for possible surgery. (R. 387, 390.) Dr. Macielak acknowledged that there was a risk of spinal cord damage associated with such surgery; however, he felt that the severity and frequency of Bennett's symptoms warranted the risk. Dr. Macielak noted that Bennett was symptomatic on a daily basis, that his pain was proportional to his activity level, and that he had difficulty sleeping and performing activities that require forward reaching (e.g., washing dishes). (Id.) Despite Dr. Macielak's recommendation for further surgery, there is no indication in the record that Bennett has undergone the procedure, evidently because of transportation issues and because of his on-going dispute with his former company's worker's compensation insurance carrier concerning payment for the procedure.

In October of 1997, Plaintiff's case was evaluated by Jay Newberg, M.D., a non-examining state agency physician. (R. 460-67.) In his residual functional capabilities review form, Dr. Newberg essentially approved Plaintiff for light level work. He felt that Plaintiff could occasionally lift, carry, push and/or pull up to 20 pounds, could frequently handle up to 10 pounds, could stand and/or walk for 6 hours out of an 8-hour workday, and could sit for up to 6 hours in an 8-hour day without the need for alternating positions. Aside from limiting Bennett to occasional posturing, Dr. Newberg placed no restrictions on Bennett's manipulative functioning, including his ability to reach in all directions. (Id.)

Throughout late 1997 and 1998, Bennett continued to complain of severe symptoms in his upper and lower back. In November of 1997, Dr. Macielak reported that Bennet was experiencing more intense and frequent thoracic spasms which would "lay him out" from 4 to 7 days at a time. (R. 525.) Plaintiff still complained of low back pain radiating into his right leg, and claimed that he was virtually never pain free. He had reduced his exercise level because of his symptoms and financially was in dire straits, having lost his house, his car and most of his income. (Id.) Bennett returned to Dr. Macielak in May of 1998 with continued complaints of thoracic and lumbar pain, now radiating to the left side. (R. 517, 525.) He was continuing to exercise at the YMCA, despite his symptoms, and was experiencing sleep disturbances. On examination, he moved quite stiffly and exhibited some tenderness in his back. Straight-leg-raise testing was positive for leg pain on the left side but negative on the right and in cross-position. (Id.) On October 28, 1998, Dr. Macielak recorded Bennett's complaints of radiating pain into his left chest area with continued radiation of his lower back pain into the left leg. (R. 518, 567.) Although Bennett had shown some improvement in his exercise program, his symptoms had been aggravated by a recent change in the weather and he was again experiencing significant sleep disturbances. Although he was attempting to do light level tasks in spite of his pain, his symptoms continued to increase proportional to his activity level. Dr. Macielak felt there was little that could be done for Plaintiff in light of his on-going worker's compensation issues; therefore Bennett was simply continued on Talwin NX and Flexeril. (Id.)

Bennett was consultatively examined by Curtis Helgert, D.O. in April of 1998, at which time Bennett reported daily pain in his low back and between his shoulder blades along with right leg pain radiating to the foot, some tingling and numbness, and occasional paresthesias in his left hand. (R. 457-59.) His back pain increased when reaching forward. Bennett advised Dr. Helgert that he could walk a mile and, in fact, could do most anything he wanted to; however, the more activity he undertook, the more pain he would experience. He was having difficulty completing activities of daily living because of his pain. Plaintiff reported that, although he could perform the tasks, he felt miserable from pain as a result. On examination, Dr. Helgert noted the presence of a small umbilical hernia and some generalized hyperflexia. There was no evidence of atrophy in Bennett's extremities and no neurological changes in the upper or lower extremities, aside from some reported numbness in Bennett's left leg, which Dr. Helgert found interesting, considering that Bennett had complained mostly of right leg pain. Lumber flexion was limited to 80 degrees, and his low back showed some palpatory changes consistent with his surgery. However, Bennett did not exhibit much in the way of muscle spasms and Dr. Helgert did not appreciate much in the way of palpatory changes or discomfort in the upper back. Bennett displayed a normal gait, could walk forward and backward on his toes and heels, and exhibited no loss of motor power. Dr. Helgert's impression was chronic back pain. He noted that, based on Bennett's own subjective information, Bennett basically could perform no activity; however, Dr. Helgert's objective findings were rather limited. Dr. Helgert did note the results of Bennett's thoracic muscle biopsy, which suggested to him the presence of a chronic muscle problem without any specific or clear diagnosis. Further, Dr. Helgert observed that Bennett's subjective complaints were borne out consistently in Dr. Macielak's office notes. (Id.)

In connection with his worker's compensation case, Bennett underwent an independent medical examination by Francis T. Ferraro, M.D. on July 27, 1998. (R. 519-24.) During the exam, Bennett appeared to be relatively comfortable. He displayed no tenderness and had a full range of motion in the lumber spine, although forward flexion caused some low back pain. Dr. Ferraro observed some tenderness in Bennett's thoracic spine with pain upon lateral flexion. In the supine position, straight-leg-raise testing caused pulling of Bennett's hamstring at 70 degrees but was negative bilaterally from seated position. Strength was normal in both lower extremities, and Bennett evidenced a normal gait with no difficulty heel or toe walking. Dr. Ferraro noted hyperesthesia to pinprick along the right side of the thoracic spine. Sensation was intact to pinprick in both legs. Bennett's deep tendon reflexes were 2 and symmetrical in both knees and ankles, and Babinski responses were flexor bilaterally. (Id.) In sum, Dr. Ferraro found no objective evidence of radiculopathy and felt that Bennett had most likely reached his maximum medical improvement with respect to his lower back symptoms. With regard to Bennett's complaints of thoracic pain, Dr. Ferraro felt this was more muscular in character; he did not feel the small herniation at T5-6 could explain Bennett's symptoms, nor did he feel that surgery would be beneficial. Instead, Dr. Ferraro recommended that Bennett try to remain as active as possible and undergo some type of chronic pain program to help him learn to live with his symptoms. Dr. Ferraro felt that Bennett would be capable of sedentary-to-light activity, but recommended that Bennett undergo a formal functional capacity evaluation to determine his full functional capabilities. (Id.) Dr. Ferraro also noted that Bennett's depression, which predated his back problems, was "most likely . . . a major factor in his inability to return to work." (R. 523.)

Included in the record is Dr. Macielak's deposition of November 5, 1998, taken in connection with Bennett's worker's compensation claim. (R. 529-89.) Dr. Macielak's diagnosis with respect to Bennett's lower back problems was "residual radiculopathy, right lower extremity post-discectomy times two and lumbar myofascial syndrome." (R. 540-41, 578.) As for Bennett's thoracic complaints, Dr. Macielak diagnosed disc herniation at T5-6 and chronic myofascial problems. (R. 558, 578.) Although Dr. Macielak felt that Bennett's lumbar injury limited him to sedentary type work, he opined that the combination of Bennett's lumbar injury and thoracic symptoms — which were now his primary complaint — rendered Bennett incapable of sustaining any gainful employment. (R. 540-41, 561-62.) As for Bennett's thoracic impairment, Dr. Macielak felt that surgery was Bennett's only other treatment option aside from his current treatment regimen of exercises and medication. (R. 551-53.) The surgery had been recommended in 1997 but never undertaken, partly because of on-going disputes in Bennett's worker's compensation case. (Id.) Dr. Macielak disagreed with Dr. Ferraro's opinion that the T5-6 herniation was neither the source of Plaintiff's pain nor susceptible to successful surgery. (R. 555-56.) According to Dr. Macielak, a symptomatic thoracic disc would result in either myelopathic findings consistent with compression of the spinal cord or radiculopathic pain (i.e., thoracic pain radiating into the chest wall area). While there had been no myelopathic findings in Bennett's case, it was Dr. Macielak's view that Bennett had indeed complained of radiculopathic pain into the chest wall. (R. 555-57.) Dr. Macielak felt that, absent corrective surgery, Bennett would remain symptomatic for the long term, and possibly permanently. He felt that Bennett's thoracic muscles would continue to atrophy and that nothing short of surgery could possibly eliminate his pain. (R. 557-58.)

On December 13, 1998, Dr. Macielak authored a summary of Bennett's treatment history, which recounted his past efforts at both conservative therapy and surgery. (R. 490-91.) At the time of the report, Bennett was still complaining of thoracic and lumbar discomfort on a daily basis. His pain, although essentially restricted to the spinal area, was aggravated by physical activity and was proportional thereto. Examination was consistent with increased paraspinal pain in the left thoracic region and associated muscle spasm. Dr. Macielak observed evidence of sciatic irritability in the right leg; however, Bennett showed no manual motor deficits or dermatomal sensory losses and his reflexes were symmetrical. Dr. Maccielak's final diagnoses were: "1. Lumbar discectomy L4-5, failed. 2. Revision lumbar discectomy and decompression, successful. 3. Thoracic disc herniation T5-6, symptomatic. 4. Chronic pain syndrome." (Id.)

Dr. Macielak still believed that Bennett had a surgical option with respect to his thoracic spine that would hopefully reduce his pain. On the other hand, he felt Bennett's lumbar spine was permanently impaired. In the event of further lumbar deterioration, Bennett might be a candidate for a discogram and possibly lumbar interbody fusion. Dr. Macielak felt that Bennett could not perform substantial gainful work due to his "longstanding, i.e. permanent" condition. (Id.) In his attached Physical Capacities Evaluation Dr. Macielak opined that, in an 8-hour workday, Bennett could sit for no more than thirty minutes at one time and no more than two hours total, stand for no more than 15 minutes at a time and no more than two hours total, and walk for no more than 15 minutes at a time and no more than two hours total. (R. 492-93.) Dr. Macielak restricted Bennett to lifting no more than 20 pounds occasionally and further restricted him from repetitive reaching, pushing or pulling with his hands ...


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