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Dalton Watt Bond v. Michael J. Astrue

February 22, 2011

DALTON WATT BOND,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

I.INTRODUCTION

Plaintiff, Dalton Watt Bond ("Plaintiff") brought this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security denying his claim for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. Plaintiff filed an application for DIB claiming disability due to, inter alia, a back impairment (Administrative Record, hereinafter "AR", 117). His application was denied, and he requested and was granted an administrative hearing before an administrative law judge ("ALJ") (AR 63-67; 71-72). Following a hearing held on April 30, 2009 (AR 19-47), the ALJ concluded, in a written decision dated May 8, 2009, that the Plaintiff was not entitled to a period of disability or DIB under the Act (AR 9-18).

Plaintiff filed his Complaint in this Court on October 16, 2009 challenging the ALJ's decision. The case was referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates. Thereafter, cross motions for summary judgment were filed, and the Magistrate Judge filed a report on November 18, 2010, recommending that the Plaintiff's motion for summary judgment be denied and that the Defendant's motion for summary judgment be granted. See Report and Recommendation [ECF No. 12]. Plaintiff filed timely objections [ECF No. 13] and this matter is now ripe for disposition. For the reasons set forth below, the Plaintiff's objections will be sustained, the Defendant's motion will be denied and the Plaintiff's motion be granted only to the extent he seeks a remand for further consideration.

II.FACTUAL BACKGROUND

On August 17, 2004, the Plaintiff suffered a work-related back injury when he fell off of a truck (AR 236; 299). Beginning on October 25, 2004, he was seen by Raymond Bridge, M.D., for complaints of low back pain and "right leg symptoms" (AR 205). An MRI conducted on October 27, 2004 revealed that he had two disc herniations, a small left sided herniation at the L4-5 level, and a large central herniation at the L5-S1 level (AR 176). He also had canal stenosis at both levels with nerve root impingement (AR 176). Based upon his clinical examination and the MRI findings, Dr. Bridge referred the Plaintiff to Jithendra Rai, M.D., a pain management specialist, for consideration of epidural steroid injections, but the Plaintiff's insurance company refused approval (AR 205). Dr. Bridge continued to treat the Plaintiff and his back condition stabilized (AR 205).

On January 3, 2005, the Plaintiff complained that his right leg was tingling and he was continued on Celebrex and home stretches (AR 206). Dr. Bridge reevaluated the Plaintiff's condition on March 3, 2005 and reported a positive straight leg raise testing on the right side at sixty degrees (AR 206). He further reported that a Medrol Dosepak had failed to provide the Plaintiff any significant pain relief (AR 206). On April 4, 2005, Dr. Bridge diagnosed the Plaintiff with lumbar radiculopathy and continued him on Celebrex (AR 210). On April 28, 2005, the Plaintiff reportedly stopped working since he could "no longer perform his job effectively" (AR 299). However, on April 29, 2005, Dr. Bridge opined that, while the Plaintiff was still symptomatic, he was able to continue working with the ongoing use of Celebrex (AR 206). Dr. Bridge stated that there was no indication that the Plaintiff was exaggerating his symptoms and if anything, "he trie[d] to minimize his symptoms" (AR 206).

On May 6, 2005, the Plaintiff reported a significant increase in his back and leg pain (AR 211). Physical examination revealed a positive straight leg raise test on the right side with decreased lumbar range of motion (AR 211). Because of his decreased difficulty with motion, Dr. Bridge recommended that he discontinue working, and diagnosed him with lumbar radiculopathy (AR 211). Dr. Bridge noted that the Plaintiff's treatment options were limited due to insurance issues, and continued him on Celebrex and hydrocodone (AR 211).

When seen by Dr. Bridge on June 16, 2005, the Plaintiff reported continuing low back and right leg pain (AR 200). On physical examination, Dr. Bridge reported that his straight leg raise test was positive on the right side and he exhibited a decreased range of lumbar motion (AR 200). He was diagnosed with lumbar radiculopathy (AR 200). Dr. Bridge compared the Plaintiff's 1994 MRI with his 1995 MRI, and noted that his 2005 MRI was significant for both an apparent increase in the size of the fragment at the L5-S1 level, and a "clear cut" herniation at the L4-5 level (AR 200). Dr. Bridge indicated that Plaintiff had not advanced to the next treatment level due to insurance issues, and that a request for physical therapy, as well as a request for epidural injection therapy by Dr. Rai, had been denied (AR 201). He continued the Plaintiff on Celebrex and prescribed Norco (AR 201).

In connection with his application for workers' compensation benefits, Plaintiff underwent an independent medical examination performed by Mark Foster, M.D. on July 25, 2005 (AR 177-180). Plaintiff reported a history of back and right leg pain which he attributed to his work-related fall in August 2004 (AR 177). Dr. Foster reported that the Plaintiff exaggerated his symptoms and that the pain the Plaintiff described was "at the level at which people are usually seeking suicide or emergency room care," yet his only treatment was the use of Celebrex (AR 178). Dr. Foster noted that he would have expected the Plaintiff to have undergone epidural treatment if he was in such pain (Ar 178-179). Based upon his physical examination and the diagnostic studies, Dr. Foster found no objective basis for his alleged impairment (AR 179). He stated that he "would not recommend any treatment" based upon the Plaintiff's "lack of interest in treatment with epidural" and opined that he could continue working as a truck driver (AR 179).

Plaintiff returned to Dr. Bridge on August 15, 2005, who reported that he had a positive straight leg raise test on physical examination and diagnosed him with lumbar radiculopathy (AR 198). Dr. Bridge instructed the Plaintiff on home exercises since was financially unable to attend physical therapy (AR 198). When seen on August 29, 2005, the Plaintiff reported that he was "trying to do more" and was performing gentle stretches (AR 197). Straight leg raise test was positive and Dr. Bridge found that he had a limited range of motion on extension and on lateral bending on either side (AR 197). He was to continue on Celebrex, and was instructed on advanced home exercises with more aerobic activities (AR 197).

On September 27, 2005, the Plaintiff reported that his back discomfort was fairly constant, both in location and severity, and that it was present most of the time (AR 195). Dr. Bridge noted that "[s]upine continue[d] to be his preferred posture" (AR 195). Plaintiff reported that he exercised on the treadmill for 30 minutes daily and was able to take long walks with appropriate rest breaks (AR 195). He was also going to start using free weights for "upper body work" (AR 195). He claimed that prolonged sitting continued to be a problem, and that a six hour trip to Kentucky had resulted in foot numbness (AR 195). On physical examination, Dr. Bridge reported that the Plaintiff had an antalgic gait, with minimal external hip rotation (AR 195). His straight leg raise test was positive on the right side, negative on the left side (AR 195). Dr. Bridge prescribed Celebrex and hydrocodone (AR 195). He noted that because the Plaintiff now had "the luxury of some insurance," he would be rescheduled for an appointment with Dr. Rai (AR 195). Plaintiff informed Dr. Bridge that his former job was no longer available to him (AR 195).

Plaintiff was evaluated by Dr. Rai on October 27, 2005 and reported low back pain with frequent radiation down the right lower leg to the right ankle (AR 193). Plaintiff indicated that prolonged activities bothered him and that lying down and resting afforded some relief (AR 193). He reported that pain medications and physical therapy had helped some, but "not a whole lot" (AR 193). On physical examination, Dr. Rai found lumbar tenderness, limited flexion, and a positive straight leg raise on the right side (AR 194). He formed an impression of lumbar radiculopathy, lumbar disc displacement and degenerative disc disease (AR 194). He recommended lumbar epidural steroid injection therapy (AR 194).

Plaintiff returned to Dr. Bridge for follow up on November 2, 2005 and continued to complain of right leg and low back pain (AR 192). He reportedly exercised 30 minutes a day on the treadmill and performed flexion-based low back stretching exercises (AR 192). Plaintiff stated that he re-injured his back on October 31, 2005 when he "move[d] more quickly than his back was ready to allow," and since that time, had experienced more buttock and thigh pain (AR 192). On physical examination, Dr. Bridge reported that he was able to walk on his heels and toes, but walked "stiff-legged" and had some difficulty with tandem gait (AR 192). His sciatic notch punch tenderness was positive on the right side only, and he had no paravertebral spasm (AR 192). Dr. Bridge diagnosed lumbar radiculopathy, one year post injury, unimproved (AR 192). It was noted that the Plaintiff was scheduled for an epidural injection, had adequate medication and was "using them appropriately" (AR 192).

On December 9, 2005, Plaintiff had an epidural injection performed by Dr. Rai which reportedly helped with the intensity of his pain (AR 181). When seen by Dr. Rai for follow-up on January 6, 2006, his straight leg raise test was negative bilaterally (AR 181). He was scheduled for another injection (AR 181).

Plaintiff returned to Dr. Bridge on January 10, 2006 and reported that the injection had not alleviated his pain (AR 191). He stated that he was spending time on the exercise bike and walking, but was not driving professionally and was limiting his personal driving due to discomfort (AR 191). Physical examination revealed a L4-5 sensory deficit on the right compared to the left, and he had a positive straight leg raise on the left (AR 191). He was diagnosed with lumbar disc herniation with lumbar radiculopathy, and Dr. Bridge referred him for a neurosurgical evaluation (AR 191).

Plaintiff was evaluated by James D. Kang, M.D. on February 27, 2006 (AR 299-300). Plaintiff complained of low back pain with pain radiating into his right posterior thigh down to his right lateral shin and stated that he had stopped working on April 28, 2005 (AR 299). Plaintiff reported that home physical therapy and epidural steroid injections had not provided any significant relief (AR 299). On physical examination, his lower extremities revealed 5/5 strength bilaterally with hip flexion and knee extension (AR 299). Dr. Kang found the Plaintiff had some weakness on the right side, was unable to do a single leg toe raise, had difficulty performing heel walking on the right side, had a positive straight leg raise on the right, and had a diminished Achilles tendon reflex on the right (AR 299). Dr. Kang reviewed the Plaintiff's previous MRI's from 2004, and noted that his disc herniation at the L4-5 level was small, but the herniation at the L5-S1 level was large and causing significant foraminal stenosis on the right side (AR 300). He was assessed with a herniated nucleus pulposus at L5-S1 with radiculopathy (AR 300). Dr. Kang ordered a new MRI in order to formulate a treatment plan (AR 300). This MRI, conducted on March 14, 2006, revealed a central and left paracentral disc herniation at the L4-5 level, and a central and slightly rightward disc herniation at the L5-S1 level (AR 305).

Plaintiff returned to Dr. Bridge for follow up on March 16, 2006 and reported that he was unable to walk on the treadmill due to right leg pain (AR 190). He was using Norco, Celexa and hydrocodone (AR 190). On physical examination, straight leg raise on the left was positive at 60 degrees and positive on the right at 30 degrees, standing on the toes of a single foot was difficult on the right side, and he had positive sciatic notch punch tenderness bilaterally with some symptoms crossing the midline (AR 190). He was diagnosed with lumbar radiculopathy (AR 190).

Plaintiff had a lumbar laminectomy of the L4-5 level and bilateral foraminotomies at the L4-5 and L5-S1 levels on May 16, 2006 performed by Dr. Kang (AR 297-298). When seen by Dr. Kang on June 9, 2006, Plaintiff reported that overall, his pain was "much better" but that he still suffered from numbness in his right foot area (AR 295). Dr. Kang reported that his x-rays showed a stable laminectomy and he was neurologically normal on physical examination (AR 295). Dr. Kang stated that the Plaintiff was doing "very well" and started him on a course of physical therapy (AR 295). Dr. Kang expressed the hope that the Plaintiff could return to work, which the Plaintiff was considering (AR 295).

Plaintiff began physical therapy on June 21, 2006 (AR 229). Throughout June and July of 2006, the Plaintiff complained of parasthesias in his right lower extremity (AR 222-228).

On July 6, 2006, the Plaintiff reported to Dr. Bridge that he was doing well after surgery (AR 189). He was walking approximately five miles a day and was undergoing physical therapy (AR 189). He was on no medications, having discontinued the Celebrex due to tinnitus (AR 189). Dr. Bridge prescribed Celebrex (AR 189). By the end of July 2006, physical therapy progress notes reflect that the Plaintiff reportedly had less pain (AR 222).

Plaintiff returned to Dr. Bridges on August 7, 2006, and stated that he was doing "reasonably well" and that he was walking five miles a day on dirt roads (AR 187). He indicated that his back was still sore on occasion, that he still had L4-5 pattern radicular symptoms on the right side, and that driving and prolonged sitting bothered him (AR 187). Dr. Bridge prescribed Neurontin along with the Celebrex (AR 188). Physical therapy progress notes for the month of August 2006 indicate that the Plaintiff had no specific complaints and he consistently reported improvement in his condition (AR 220-221).

When seen by Dr. Kang on September 11, 2006, Plaintiff had no major complaints, but still had some right foot numbness (AR 294). His physical examination was unremarkable and Dr. Kang reported that he was doing "reasonably well" (AR 294). Dr. Kang noted that the Plaintiff was eager to return to his job as a truck driver, and Dr. Kang was of the view he would be able to do so within two to three months (AR 294). Physical therapy progress notes for September 2006 show no specific complaints, and when seen on October 25, 2006, the Plaintiff stated that was gradually improving (AR 217-218).

On February 7, 2007, the Plaintiff was seen by Stephen Hardy, D.O., who felt that the Plaintiff should return to Dr. Kang for his complaints of back and leg pain (AR 231).*fn1 Plaintiff reported that he had performed some lumber-cutting work and that it had been a "bad choice" (AR 231).

Plaintiff returned to Dr. Kang on March 9, 2007, and reported that he was driving tractor trailers and performing some work, but was experiencing increased numbness and tingling pain in his right leg (AR 293). On physical examination, his lumbar flexion/extension was supple and he was neurologically normal (AR 293). Dr. Kang stated that he was "doing well" and that his increased activities were "probably" stressing the epidural scar and nerve roots, suggesting there were not "any major issues ongoing" (AR 293). He prescribed ...


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