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Randall A. Massey v. Michael J. Astrue

December 3, 2010

RANDALL A. MASSEY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, ELECTRONICALLY FILED COMMISSIONER OF SOCIAL SECURITY, DEFENDANT



The opinion of the court was delivered by: David Stewart Cercone United States District Judge

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff, Randall A. Massey ("Massey"), brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final determination of the Commissioner of Social Security ("Commissioner") denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act ("Act").

42 U.S.C. §§ 401-433, 1381-1382f. Before this Court are cross-motions for summary judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. The record has been developed at the administrative level. For the foregoing reasons, the Commissioner‟s Motion for Summary Judgment (Doc. No. 13) will be DENIED and Massey‟s Motion for Summary Judgment (Doc. No. 11) will be GRANTED. The case will be remanded to the Commissioner solely to calculate the amount of benefits owed to Massey under Titles II and XVI.

II PROCEDURAL HISTORY

Massey protectively filed for DIB and SSI on September 10, 2007, alleging disability as of April 29, 2002*fn1 . (Record of Massey v. Astrue, 91-92, 96)(herein after "R."). Massey alleged disability due to lower back pain. Id. The applications were administratively denied on June 30, 2008. R. 59. Massey responded by filing a timely request for an administrative hearing. R. 32-33. On January 23, 2009, a hearing was held before Administrative Law Judge James Pileggi (the "ALJ"). R. 34-58. Massey, who was represented by counsel, appeared and testified. R. 38-55. Karen Krull, an impartial vocational expert ("VE") also testified. R. 55-58.

In a decision dated July 2, 2009, the ALJ determined that Massey was not "disabled" within the meaning of the Act. R. 12-20. The Appeals Council denied Massey‟s request for review on October 30, 2009, thereby making the ALJ‟s decision the final decision of the Commissioner in this case. R. 5-7. Massey commenced the present action on December 17, 2009, seeking judicial review of the Commissioner‟s decision. Doc. No. 1. Massey and the Commissioner filed motions for summary judgment on July 14, 2010, and August 12, 2010, respectively. Doc. Nos. 11 & 13. The motions are now before the Court.

III. STATEMENT OF THE CASE

Massey sought treatment from pain medicine specialist Edward Heres, M.D., from July 2006 to April 2007 in an attempt to help with back pain he had experienced since an April 2002 fall while lifting a tree on the job*fn2 . R. 207-21. Prior to beginning treatment with Dr. Heres, Massey was taking Neurontin, Amitriptyline, and Fentanyl patches. R. 143, 206, 220-21, 244. Massey‟s pain level in July 2006 was described as "9/10" and was noted to disrupt his sleep. R. 220. Dr. Heres‟ exam revealed that Massey did not have any neurological deficits and was able to walk with a normal gait and independent ambulation. R. 209-10, 212, 215-16, 218, 221. A magnetic resonance imagining ("MRI") revealed "degenerative disk disease of [Massey‟s] lumbar spine." Id. Dr. Heres continued Massey‟s prescriptions and added Lyrica to his medications. R. 220-21.

In October 2006, Massey reported that he had stopped his medicine regime because his insurance company had stopped covering his prescriptions for Lyrica, Oxycodone, and Fentanyl patches. R. 216. Massey complained that his pain had worsened. R. 216. As a result, Dr. Heres prescribed Kadian and continued previous prescriptions for Neurontin and Ultam. R. 217. Review of Massey‟s MRI revealed some mild disk bulging at L3-L4, disk bulge at L4-L5, a generalized disk bulge at L5-S1, and small broad-based right paracentral disk protrusion about the thecal sac. R. 216. Dr. Heres also noted some facet degenerative changes. Id.

Throughout his treatment records, Dr. Heres noted Massey‟s prior unsuccessful treatment history including a discogram, ablations, facet injections, physical therapy, and nerve blocks. R. 208, 210, 218. Despite Massey‟s extensive treatment, Dr. Heres also noted that he had been in persistent pain without improvement. R. 218.

On January 12, 2007, Dr. Heres noted that Massey had difficulty getting seated properly for pain relief and continued to rate his pain as a "9/10." R. 214. Dr. Heres recommended that Massey undergo a discogram in order to obtain additional information. Id. However, the rest of his follow-up evaluations note that Massey‟s insurance company refused to pay for the procedure. R. 210, 212, 218. At the final follow-up treatment of record, Dr. Heres noted Massey had some weakness in his lower extremities bilaterally. R. 208. Massey did not exhibit any overt pain behaviors. R. 208, 210, 218.

In September 2006, Dr. Heres referred Massey to orthopedist Jory Richman, M.D., for back pain management. R. 202-206. Dr. Richman evaluated Massey five times from September 2006 until March 2007. Id. At his initial evaluation, Dr. Richman noted that Massey had four years of "intractable back pain which radiates into both lower extremities, predominately in a S1 distribution." R. 206. Dr. Richman found that straight leg raising reproduced back pain and that Massey‟s right side was more affected than his left. Id. Massey did not have any neurological deficits and had a full range of motion of both hips without pain. Id. Massey appeared "quite anxious" to undergo a surgical fusion, but Dr. Richman advised him that surgery only afforded a fifty percent chance of improvement of his symptoms and carried "considerable risk." Id. Dr. Richman recommended a repeat MRI of Massey‟s lumbar spine in order to re-evaluate his lumbar disks. Id.

Massey‟s subsequent MRI revealed disc degeneration. R. 231-32. The radiologist diagnosed degenerative lumbar changes; a small broad-based right paracentral disc protrusion at the L5-S1 level which did not cause a significant mass effect; degenerative changes causing foraminal narrowing lower lumbar spine, most prominently on the left at L5-S1; and small renal cysts. R. 233.

Shortly thereafter in November 2006, Massey returned to see Dr. Richman. R. 205. Dr. Richman noted that Massey continued to complain of intractable back pain with episodic numbness and burning in his legs. Id. No neurologic deficits were noted and Massey‟s straight leg raising was negative. Id. Dr. Richman recommended an electromyogram ("EMG") and nerve conduction velocity ("NCV") since he was "unsure whether [Massey] had any true neurologic dysfunction." Id. Dr. Richman posited that if Massey‟s EMG and NCV showed neurologic abnormalities that he may have better odds with surgical intervention. Id.

In January 2007, a review of Massey‟s EMG and NCV revealed "some mild paraspinal denervation, which show[ed] no evidence of frank radiculopathy." R. 204. Massey had discogenic pathology at L4-5 and L5, S1, which Dr. Richman believed was "most likely causing his pain." Id. Dr. Richman recommended a repeat discography. Id. However, a repeat discography was denied by Massey‟s workmen‟s compensation insurance carrier. R. 203. Dr. Richman suspected that Massey‟s lower back pain was discogenic in origin, but without the discography‟s results, he was unable to make any further treatment recommendations. Id. Dr. Richman concluded that Massey "was able to do only sedentary work at the present time due to his chronic pain." Id.

By March 2007, Massey‟s discography had still not been approved. R. 202. Dr. Richman noted Massey‟s continued pain without improvement and stated that he would attempt to contact Massey‟s workmen‟s compensation insurance carrier to outline to them that a discogram was necessary. Id. Vicodin was prescribed as a "stop gap measure" until a different pain management specialist could evaluate Massey. Id.

Dr. Garrett Dixon examined Massey on May 2, 2007. R. 223-25. Dr. Dixon found Massey to be a well-developed male experiencing "persistent intractable pain with evidence of mild L5 radiculopathies." R. 225. Dr. Dixon noted that Massey‟s MRI and EMG results supported this diagnosis. Id. During his physical examination, Dr. Dixon observed that Massey shifted positions frequently during his examination and demonstrated "many pain behaviors." R. 224. Massey had bilateral tenderness in the lumbar paraspinals. Id. He also had a slow and antalgic gait, stooped posture, flexed at the waist, and was sparing his right leg. Id. Dr. Dixon found that Massey‟s pain was "exacerbated by sitting (40 minutes), standing and walking ("maybe a half hour)." R. 223. Massey was found to do marginally better with walking than standing. Id. However, ascending stairs was particularly painful. Id. Dr. Dixon also noted that bending and lifting were painful. Id.

Dr. Dixon concluded that because Massey had persistent intractable pain and management would be difficult because he didn‟t know if he had "a lot to offer him." R. 225. Accordingly, Dr. Dixon noted that treatment would be limited given what Massey had already undergone. Id. Massey expressed that in the past medication management had been "helpful."

R. 223. Therefore, Dr. Dixon informed Massey that a new course of lumbar epidurals would be reasonable. Id. However, Massey was informed that "it is unlikely that he will find anything that will bring his pain to an acceptable level." Id.

Beginning in September 2007, Massey was treated by family practitioner Benjamin Shipton, D.O. R. 252, 308. Massey reported being unable to sit, stand, or walk for any length of time secondary to intense pain, which he rated a "9/10". R. 252. On examination, Dr. Shipton found that Massey had a decreased back range of motion because he only presented with twenty degrees of forward flexion and zero to ten degrees of extension. Id. Massey‟s rotation was ten degrees bilaterally, and was painful. Id. Massey also had painful side bending. Id. There was also pain diffusely to palpitation over the entire back. Id. Dr. Shipton assessed lumbar disc disease and completed Massey‟s disability forms. Id.

In November 2007, Dr. Shipton found Massey to be in excruciating pain with any physical activity. R. 251. Massey was noted to be unable to carry out his activities of daily living in any significant capacity. Id. Dr. Shipton noted Massey‟s difficulty with flexion and extension of the lumbar spine and that he walked with a limp. Id. Massey‟s extremity examination showed decreased deep tendon reflexes in the lower extremities and there was tenderness to palpation diffusely over the lumbar spine. Id. Dr. Shipton assessed Massey with chronic pain syndrome with lumbar disc disease and referred him to pain management. Id.

Massey was evaluated by Dr. Shipton again in January 2008. R. 249. Massey presented with a complaint of severe lumbar back pain which prevented him from sleeping at night. Id. Dr. Shipton found Massey to be in obvious distress. Id. Massey had decreased cervical flexion and his straight leg raising was positive bilaterally. Id. Massey‟s strength testing was slightly weak at the hamstrings, but otherwise unremarkable. Id. Massey moved about the exam room with "significant difficulty" and his gait presented with significant antalgia. Id. Dr. Shipton assessed acute severe lumbar strain/sprain and lumbar disc disease. Id. He renewed all of Massey‟s pain medications for six months and referred Massey to pain management. Id.

Pursuant to Dr. Shipton‟s referral, Massey was treated by pain management specialist Evelyn Oteng-Bediako, M.D., whom he saw from February to November 2008. R. 270-278. At the first evaluation, Massey rated his pain as an "8/10." R. 277. Massey complained that his pain was aggravated by increased activity, especially walking and sitting, and that it improved with medication. R. 276. Massey‟s neurological evaluation was positive ...


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