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Preble v. Astrue

February 25, 2009

STEWART E. PREBLE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court are defendant's objections (Doc. 12) to Magistrate Judge J. Andrew Smyser's Report and Recommendation (Doc. 11) in this social security disability case, which proposes that we grant the plaintiff's appeal and remand the case to the Administrative Law Judge (ALJ). The matter has been fully briefed and is ripe for disposition.

Background

This case arises out of Plaintiff Stewart J. Preble's application for social security disability benefits. Plaintiff, who is presently 39 years old, first filed a claim for social security disability insurance on October 25, 2005. (See Application for Disability Insurance Benefits, Record (hereinafter "R.") at 39). He contended that he had become unable to work on April 13, 2004. (Id.). As the cause of his disability, plaintiff complained of left leg sciatica, surgery on a hip, and lower back pain. (Disability Report--Adult, R. at 56). He asserted that he could not stand for more than 15-20 minutes, could not shift his weight to the right, bend down to the floor to pick anything up, and had difficulty walking. (Id. at 56-57). He moved slowly, and with a limp. (Id. at 57). These problems made lifting items impossible. (Id.). Plaintiff's condition made driving difficult, and he fell frequently while walking due to leg problems. (Id.). Nerve pain forced him to carry a portable device to ease that problem. (Id.). He alleged that he suffered these injuries after he fell onto his buttocks while making a delivery in February 2004. (Id. at 81). Plaintiff attempted to work for several weeks after his initial injury, but eventually found the pain too sharp to continue. (Id. at 115).

Plaintiff provided his work history to administrators evaluating his claim. Plaintiff had worked in a variety of jobs in the fifteen years before his alleged disability prevented further work. He worked as a quality inspector in a television plant, owned a retail fishing tackle business, fabricated truck and auto upholstery, managed an auto parts store, sold auto parts, and delivered uniforms and supplies such as rugs and towels to various businesses. (Id. at 65-71). All of these jobs had required frequent walking and standing from the plaintiff, and also forced him occasionally to lift 100 pounds or more, and lesser weights frequently. (Id.).

In his disability filings, plaintiff claimed that his physical condition presented great limits to physical activity. In a November 2005 filing, plaintiff complained that he could do little more during a day than move from his bed to the couch, where he was forced to lie on his back to limit sciatica pain. (Id. at 74). Plaintiff's pain made sleeping difficult, as pain from lying in the wrong position caused him to wake up. (Id.). He had difficulty dressing himself, and was forced to set up a chair in the shower to bathe, as he could not climb in or out of the tub and feared slipping and falling in the shower. (Id.). Difficulties with standing for a long period of time made cooking impossible. (Id. at 75). Plaintiff had formerly enjoyed this activity. (Id.). An inability to bend over prevented plaintiff from engaging in house and yard work, and plaintiff found he could not shop because of his limitations. (Id. at 76). Though he formerly loved outdoor activities like hunting, fishing, gardening and riding all-terrain vehicles, plaintiff's pain had led him to cease all such activities. (Id. at 77).

The record contains a number of medical reports from various treating physicians and evaluators. Plaintiff's physical therapist, who treated him for sixteen weeks following his initial injury in April 2004, reported that plaintiff had shown no progress over this course of treatment, and that at his last visit he continued to drag his left foot while walking and had "absent" reflexes in his left achilles. (Id. at 98).

Dr. Matthew Brand, MD, began treating plaintiff for his pain and injuries here in question in 2004. On July 22, 2004, Dr. Brand examined plaintiff, diagnosing him with lower back pain and left sciatica. (R. at 189). He found that plaintiff had "some slight tenderness over the left paraspinal musculature and mildly positive straight leg raise on the right, positive on the left." (Id.). The doctor suggested a referral to pain management for an epidural steroid injection. (Id.). Plaintiff returned to Dr. Brand on October 15, 2004. (Id. at 187). The doctor found him "really not doing a whole lot better." (Id.). The steroid injection had not provided any relief. (Id.). An exam again showed a positive straight leg raise on the left and a mildly positive one on the right. (Id.). A magnetic resonance imaging (MRI) exam revealed some bulging disks, but Dr. Brand considered plaintiff's sciatic nerve more problematic. (Id.). Plaintiff had not responded to conservative treatment, and Dr. Brand had begun to discuss surgical options with him. (Id.). On December 15, 2004, Dr. Thomas E. Borman, MD, examined plaintiff's back as a second opinion. (Id. at 185). Dr. Borman found no surgical treatment of the spine necessary, finding "full and painless" hip rotation with "some guarding and ratcheting when I attempt to rotate his left hip." (Id.). Walking from heel to toe was somewhat difficult, and plaintiff had to hold onto the exam table to maintain balance. (Id.). Dr. Borman diagnosed "left sciatica neuronegative." (Id.).

Dr. Brand's treatment of plaintiff continued into 2005. (Id. at 183). He saw plaintiff on January 4, 2005, reporting that plaintiff still suffered from "sciatica type pain from his left buttock posterior thigh, knee, posterior calf, and down to his foot." (Id.). Plaintiff had a "negative straight leg raise" and "[g]ood internal and external rotation of his hips." (Id.). Still, Dr. Brand reported that he had informed plaintiff that "just the fact that he is not a surgical candidate does not necessarily mean he is not having a problem, just there is no obvious disc herniation causing his sciatica." (Id.). Brand suggested that plaintiff undergo nerve conduction studies to help diagnose his problem. (Id.). After plaintiff underwent these studies, he saw Dr. Brand again. (Id. at 179-181). Dr. Brand reported that the nerve conduction study showed "some abnormality in the peroneal nerve as well as the tibial nerve. (Id. at 179). He suggested that plaintiff undergo a closed MRI to determine whether disc damage was involved. (Id.). Examinations on March 18 and May 2, 2005 revealed that plaintiff continued to suffer similar symptoms. (Id. at 177). For the first time, however, Dr. Brand began to suspect that plaintiff suffered from piriformis syndrome, which could only be treated by "releas[ing] the piriformis to see how much improvement he gets." (Id.). Plaintiff was then treated by David L. Mevorach, M.D., who administered a "diagnostic nerve block." (Id. at 153). Plaintiff reported to Dr. Brand on May 26, 2005 that his symptoms had improved for three days after this procedure. (Id. at 174). Most of the discomfort returned within a few days, however. (Id.). After Dr. Brand explained the risks and potential rewards of surgery, plaintiff decided to have an operation. (Id.).

Plaintiff saw Dr. Brand again on August 10, 2005 to discuss his impending operation. (Id. at 173). Dr. Brand explained that the operation did not guarantee improvement in plaintiff's condition. (Id.). At the same time, plaintiff reported that his condition worsened every day, and discomfort was spreading to the right side. (Id.). Understanding these risks, plaintiff determined to go forward. (Id.). On August 15, 2005, plaintiff was admitted to St. John's Hospital in Elmira, New York under the care of Dr. Brand. (Id. at 147). Dr. Brand performed this operation on August 15, 2005. (Id. at 149). Reports after the surgery indicate that plaintiff recovered fully from the surgery, but that he got little to no relief from his pain. (Id. at 169). By October 5, 2005, plaintiff reported to Dr. Brand that he was in constant pain. (Id. at 168). Dr. Brand suggested that he continue with physical therapy in hopes of improvement. (Id. at 168).

When Dr. Brand saw plaintiff on March 10, 2006, he reported that another physician, Dr. Kung, had examined plaintiff and concluded that there was no evidence of disc herniation. (Id. at 228).*fn1 Plaintiff would not benefit from any surgical intervention. (Id.). Dr. Kung and Dr. Brand agreed that "Stewart is totally disabled." (Id.). Dr. Brand diagnosed plaintiff with a "piriformis decompression" and concluded treatment could best be achieved through activity modification and antiinflammatory medications. (Id.). He had reached "maximum medical improvement" and had a "permanent partial disability." (Id.). Dr. Brand saw plaintiff again on December 12, 2006. He reported that he had rechecked plaintiff's left sciatica, and that his condition was "same as always." (Id. at 227). Dr. Brand was forced to explain that he was "not sure there are any other options at this time." (Id.).

Dr. Brand completed a medical report for the Social Security Administration in May 2007. (Id. at 229-233). He reported that he had treated plaintiff since June 2004. (Id. at 229). Brand diagnosed plaintiff with left sciatica, primiforma syndrome. (Id.). Plaintiff's response to treatment and prognosis were both "poor." (Id.). In assessing plaintiff's ability to work, Dr. Brand reported that he could occasionally lift up to twenty pounds, but could never carry more than ten. (Id. at 230). Even plaintiff's lifting of ten pounds could only be occasional. (Id.). Though plaintiff could frequently reach and push and pull with both hands and frequently handle and finger with them, he could not sit for more than thirty minutes at any one time. (Id. at 231). He also could not stand for more than thirty minutes at a time. (Id.).

Other physicians examined plaintiff in connection with his disability claims. Dr. David P. Roeltgen, M.D., conducted an independent medical evaluation (IME) on March 7, 2005. Dr. Roeltgen found that "patient does not have significant neurological deficits, I believe he does have significant disability. He cannot sit, stand or walk for significant periods of time because of the severe discomfort. I do not think he can drive for any significant periods of time. He cannot lift our [sic] bend." (Id. at 143). Dr. Pranab Datta, employed by the Division of Disability Determination, examined plaintiff on December 5, 2005. (Id. at 196). Dr. Pratta reported that the "[c]laimant appeared to be in no acute distress." (Id. at 197). His gait was "abnormal," and he limped "a little and drags his left foot while walking." (Id.). Plaintiff also "appeared to be in pain while walking." (Id.). Though plaintiff had difficulty rising from his chair and walking on his heels and toes, he did not need assistance to move around the operating room or to get on and off the exam table.

(Id.). Datta diagnosed plaintiff as suffering from "low back pain probably secondary to [a] herniated disk." (Id. at 198). Plaintiff's prognosis was "stable." (Id.). While plaintiff suffered no limitations in relation to his speech, hearing, or upper extremities for fine and gross motor activities, plaintiff could not lift or carry heavy objects. (Id.). He also ...


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