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Soto v. Astrue

July 28, 2009

RUBEN S. SOTO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: SOCIAL SECURITY APPEAL

Plaintiff, Ruben S. Soto, seeks judicial review of the decision by the Commissioner of the Social Security Administration ("Defendant") denying his application for Social Security disability insurance benefits and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act ("the Act"). For the reasons described below, the Court will reverse the decision of the Administrative Law Judge and award benefits to Plaintiff.

I. Factual Background

A. Procedural History and the ALJ Decision

Plaintiff first applied for disability insurance and SSI benefits on October 26, 2004, alleging disability beginning March 23, 2004 due to a work-related injury. (R. 73-75). The Administration denied Plaintiff's application on January 24, 2005 (R. 29-32), but Plaintiff did not appeal that decision. Plaintiff filed new applications on June 24, 2005 (R. 78-89), which were again denied by the Administration on October 31, 2005 (R. 35-38). Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"). (R. 41-42). The hearing was held before ALJ Paula Garrety on July 20, 2007. (R. 57, 602-44). At the hearing, the ALJ heard testimony from Plaintiff, Plaintiff's wife, Plaintiff's friend, and a vocational expert. (R. 602-44).

In a written decision on August 24, 2007, the ALJ denied Plaintiff's application for benefits. (R. 19-24). The ALJ first concluded that Plaintiff suffered from medically determinable impairments, namely degenerative changes of the lumbar spine, obesity, and myofascial pain syndrom, that limited his ability to work. (R. 21). The ALJ also found that Plaintiff's testimony regarding his injury and his limitations was generally credible and that the recognized impairments could reasonably be expected to produce the symptoms alleged. (R. 22). However, the ALJ then concluded that, based on the entire record, Plaintiff could perform light work that allowed for Plaintiff to alternate between sitting and standing positions. (Id.). The vocational expert had testified at the hearing that such jobs did exist in the national and local economy, and the ALJ held that Plaintiff was therefore not disabled. (R. 24).

In reviewing the record, the ALJ chose not to give controlling weight to the opinion of Plaintiff's treating physician, explaining that the opinion was "inconsistent with other credible medical opinion evidence and . . . with the clinical findings on examination and diagnostic imaging studies." (R. 23). Instead, the ALJ emphasized the opinion of the examining physician hired by the state agency as well as the RFC assessment performed by a state medical consultant.

(R. 22). The ALJ also described Plaintiff's treatment as "conservative." (Id.). Plaintiff filed a Request for Review by the Commissioner's Appeals Council on September 9, 2007, which was denied on July 30, 2008. (R. 6-8). Plaintiff then timely filed this action pursuant to § 405(g) of the Social Security Act, 42 U.S.C. § 405(g).

B. Evidence in the Record

1. Initial Diagnosis and Treatment

Plaintiff has had several treating physicians since he was first injured in March 2004. Plaintiff initially saw Dr. Dolphin at HealthWorks from April 2004 until August 2004. (R. 187-204). Dr. Dolphin ordered an MRI of Plaintiff's spine, taken in April 2004, which showed mild disk bulging at L2-L3, mild disk bulging at L4-5 with some neural foramina on the left, and mild desiccation of the L5-S1 disk. (R. 213). At the same time, Plaintiff also saw Dr. Wertz, a pain management consultant, who gave Plaintiff several epidural injections to help alleviate the pain in his back and buttocks. (R. 206-11). After examining the MRI results, Dr. Wertz noted that Plaintiff's "low back pain may indeed be discogenic, but it does not appear to be severe enough to warrant . . . surgery." (R. 207). Dr. Wertz concluded, "I am concerned that [the injection] will only provide him with temporary benefit and that he is going to simply need to come to terms with the fact that he may well indeed have some degree of ongoing low back pain . . ." (R. 207). After another examination, Dr. Wertz opined that Plaintiffs low back and leg pain "is likely generated from his degenerative changes in the L5-S1 disk and perhaps by the bulging of the L4-L5 disk." (R. 208).

Because Plaintiff continued to experience pain in his back despite the epidurals, Plaintiff saw Dr. Lueddeke, a chiropractor, from August to September 2004. (R. 219). Dr. Lueddeke requested another MRI in August 2004, which produced similar results to the previous test. (R. 215). Plaintiff also saw Dr. Sewards, an orthopedist, from September 2004 until December 2004. (R. 243-50). In his examination notes, Dr. Sewards referred to Plaintiff's "low back spasm and active scoliosis" as well as an "antalgic type gait" and "degeneralized deconditioning of both lower extremeties." (R. 244). Dr. Sewards also observed that Plaintiff's "back is straight with severe bilateral paralumbar spasm." (R. 245). As a result, Dr. Sewards ordered a "fairly aggressive active physical therapy program with core conditioning therapeutic exercise, [and] neuromuscular training . . ." (R. 246). However, Dr. Sewards noted that "prognosis for recovery is somewhat guarded and the possibility of surgery although not presently recommending [sic] cannot be ruled out in the future." (Id.).

2. Treatment by Dr. Stolz

In September 2004, upon referral by Dr. Sewards, Plaintiff also began seeing Dr. Ralph Stolz, who provided the bulk of Plaintiff's pain management treatment over the next several years. (R. 238, 296-362, 392-414, 423-551). Dr. Stolz saw Plaintiff two to three times each week, (R. 522), and the record contains extensive treatment notes by Dr. Stolz for each visit he had with Plaintiff. According to Plaintiff's brief, between September 21, 2004 and May 25, 2007, Plaintiff received intramuscular injections from Dr. Stolz on 169 different dates, and on 75 of those visits, Plaintiff also received trigger point injections in the L4-5 region. (Pl.'s Brief at 5n.5). Dr. Stolz's initial treatment note indicates that "plaintiff could hardly walk," "he has a loss of his normal lumbar lordotic curve," and he "presents with marked exquisite pain on palpation, severe myospasm, and an almost complete loss of range of motion of the dorsolumbosacral spine with any movement." (R. 411). Throughout his treatment of Plaintiff, Dr. Stolz made similar findings during his examinations, emphasizing Plaintiff's pain and tenderness in his back and lower right extremity. (See, e.g., R. 297, 301, 305, 318, 326, 438, 444, 449, 451, 456, 480, 487, 501, 510, 514, 531, 532, 535, 549).

Pursuant to his treatment with Dr. Stolz, Plaintiff was admitted to the hospital for osteopathic manipulative treatments under general anesthesia and/or intravenous muscle relaxant and steroid treatments on multiple occasions from 2005 though 2007. (R. 238, 259-60, 276-77, 388-91, 557-60). During his hospital stays, Plaintiff was seen by several consulting physicians, including Dr. Nathanson, a neurologist, and Dr. Fellechner, a physiatrist. Dr. Nathanson's notes indicate a "straightening of normal LS curve" with "muscle spasm" (R. 263) and tenderness along the spine with muscle spasm (R. 269). A radiology report from May 2005 also notes "unchanged straightening of the normal lumbar lordosis, but otherwise vertebral structure, alignment and disc heights are normal." (R. 293).

In an opinion letter from February 2007, Dr. Stolz stated that he sincerely felt Plaintiff would like to return to work, but the pain in his back and lower extremities had not improved.

(R. 521). Dr. Stolz explained that Plaintiff had also developed restless leg syndrome, obesity, and hypertension and that despite the continual injections, Plaintiff's pain and radiculopathy remained quite strong. (R. 522-23). Dr. Stolz wrote "I do feel with a reasonable degree of medical certainty that this patient is fully and completely disabled and will not be able to return to a meaningful form of employment due to the extreme nature and extensiveness of his post-traumatic pain syndrom." (R. 522-23). He further concluded that Plaintiff's "prognosis for life is fair at best and that his condition at this time is fair." (R. 523).

Dr. Stolz responded to several interrogatories regarding his conclusions about Plaintiff's disability. In his answers, Dr. Stolz conceded that the laboratory diagnostic studies did not confirm his findings of lumbar herniated disc disease with compression of associated nerve roots.

(R. 572). However, he explained that the loss of a normal lumbar lordotic curve, as indicated in the diagnostic studies, combined with his clinical findings of severe muscle spasm, pain in response to light palpation, ambulatory dysfunction, and inability to change position supported his diagnosis. (Id.). Dr. Stolz also noted that he did not believe Plaintiff was exaggerating or malingering his condition or symptoms. (R. 574).

3. Other Treatment and Medical Evidence

Plaintiff also participated in a physical therapy program at Good Shepard for a period of time in mid 2005 (R. 363-75), though Plaintiff apparently stopped therapy after he over exerted himself, causing additional pain (R. 521). The notes from the initial therapy sessions indicate problems with Plaintiff's gait, which had decreased trunk rotation, as well as with Plaintiff's posture. (R. 372-73). ...


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