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William E. Sopher v. Michael J. Astrue

August 8, 2011


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



William E. Sopher ("Plaintiff"), commenced the instant action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"), denying his claims for disability insurance benefits ("DIB") and supplemental security income ("SSI) under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401, et seq. and § 1381 et seq. Plaintiff filed his applications on January 4, 2008, alleging disability since July 6, 2007 due to a herniated disc (AR 69-82; 120).*fn1 His applications were denied, and he requested an administrative hearing before an administrative law judge ("ALJ") (AR 52-53; 64). Following a hearing held on August 6, 2009 (AR 22-43), the ALJ concluded, in a written decision dated September 17, 2009, that Plaintiff was not entitled to a period of disability, DIB or SSI under the Act (AR 11-21). Plaintiff‟s request for review by the Appeals Council was denied (AR 1-5), rendering the Commissioner‟s decision final under 42 U.S.C. § 405(g). The instant action challenges the ALJ‟s decision. Presently pending before the Court are the parties‟ cross-motions for summary judgment. For the reasons that follow, the Commissioner‟s motion will be denied and Plaintiff‟s motion will be granted to the extent he seeks a remand for further consideration.


Plaintiff was 48 years old on the date of the ALJ‟s decision and completed school through the eleventh grade (AR 12520). He has past relevant work experience as a blow mold technician and laborer (AR 110; 121).

A. Medical evidence submitted to the ALJ

Plaintiff presented to the emergency room on July 9, 2007 and complained of back pain that radiated to his left thigh and knee (AR 155). He reported an acute onset date of three days prior while walking in a swimming pool (AR 155; 185). Physical examination by Lawrence Newhook, M.D., revealed that Plaintiff was alert but mildly distressed, with vertebral point tenderness and soft tissue tenderness over the lower lumbar spine, and a mildly limited range of motion in his back secondary to pain (AR 155). Dr. Newhook found no evidence of muscle spasms in his back, but his straight leg raising test was positive at fifteen degrees on the left (AR 155-156). No motor or sensory deficits were found (AR 156). Lumbosacral spine x-rays showed some mild degenerative changes and lumbarization of S1 (AR 157). Plaintiff was assessed with acute lumbar strain, acute left-sided sciatica and acute pain (AR 156). He was scheduled for an MRI, prescribed Vicodin and Flexeril and was advised to avoid strenuous activity for three days (AR 156).

Plaintiff‟s lumbar MRI dated July 17, 2007 showed a disc herniation at the L4-5 level with mild central canal stenosis (AR 170). Plaintiff was referred to physical therapy beginning in September 2007, and at his October 1, 2007 session, Plaintiff reported that his back pain had improved (AR 167-168).

Plaintiff was seen by Curtis Helgert, D.O., his primary care physician on October 4, 2007 and complained of back and right leg pain, but reported that physical therapy had been helpful (AR 175). Injection therapy was discussed, but Plaintiff decided he wanted to "hold off" and continue with an exercise program instead (AR 175). On physical examination, Dr. Helgert reported that his straight leg raising test was negative bilaterally but his low back remained "a little tender" (AR 175). He was diagnosed with a herniated L4-5 disc, was to continue off work for two more weeks, and continue with a home exercise program (AR 175). On October 22, 2007, Plaintiff reported having good days and bad days with respect to his back pain (AR 175). Dr. Helgert found no significant tenderness on physical examination, and Plaintiff denied any radiating pain (AR 175). He was assessed with back pain with a herniated disc and released to return to work (AR 175).

On November 2, 2007, Plaintiff reported ongoing back pain (AR 175). He stated that he had returned to work and on some days did "quite poorly" (AR 175). Plaintiff indicated that he engaged in a "fair amount of lifting at work" (AR 175). Dr. Helgert noted some low back tenderness, but found no neurological symptoms (AR 175). He was diagnosed with lumbar strain and referred to physical therapy (AR 175).

When seen for physical therapy on November 15, 2007, Plaintiff reported that he still used pain medication to control his back pain (AR 165). On November 30, 2007 Plaintiff returned to Dr. Helgert and reported ongoing right leg pain (AR 174). He found that Plaintiff‟s legs were "fairly normal" neurologically, but that he had "a little bit of sensory alteration in the lateral aspect but nothing profound" (AR 174). Dr. Helgert further found low back tenderness and ordered a repeat MRI (AR 174). Plaintiff was to remain off work temporarily until January 7, 2008 (AR 174).

On December 3, 2007, Richard Cribbs, DPT, performed a physical work performance evaluation of Plaintiff (AR 160-164). He opined that Plaintiff was capable of performing medium level work for an eight-hour day/forty-hour week (AR 160). Plaintiff complained of pain in his low back during testing, and Mr. Cribbs noted that his statements were consistent with his movement patterns (AR 161). He noted that Plaintiff‟s gait was antalgic compared to his gait pattern upon arriving for the test (AR 164).

Frederic McDermott, M.D., compared an MRI of Plaintiff‟s lumbar spine dated December 7, 2007 to his previous study dated July 17, 2007 (AR 169). At the L3-4 level, Dr. McDermott found a minimal disc bulge that caused no significant impingement upon the thecal sac (AR 169). At the L4-5 level, he found a broad based central disc protrusion that had decreased in size since the prior examination (AR 169). Dr. McDermott found normal alignment of the lumbar spine bones, no marrow signal abnormalities, and his paraspinal soft tissues were unremarkable (AR 169).

At Plaintiff‟s December 12, 2007 physical therapy session, the therapist noted that Plaintiff‟s condition had improved (AR 159). It was reported that he had decreased radiculopathy in the right lower extremity and tolerated increased range of motion exercises (AR 159).

When seen by Dr. Helgert on December 17, 2007, Plaintiff reported that he had completed physical therapy and was "doing better" (AR 174). Dr. Helgert noted that his most recent MRI showed shrinking of the disc and that Plaintiff still complained of some radicular leg pain, but it had improved (AR 174). On physical examination, Dr. Helgert found Plaintiff had normal sensation in his legs bilaterally, his deep tendon reflexes were normal and his strength was "ok" (AR 174). Some palpatory spasm and tenderness of his low back was noted (AR 174). Plaintiff was diagnosed with back pain and a herniated disc, and was directed to continue with his home exercise program (AR 174).

On January 4, 2008, Plaintiff reported that he had ongoing back pain and felt like he had regressed since completing physical therapy (AR 173). He complained of intermittent pain radiating down his legs (AR 173). Dr. Helgert observed that his last MRI "showed actual improvement in his herniated disc" (AR 173). He noted a little tenderness in Plaintiff‟s low back and referred him to physical therapy (AR 173).

Plaintiff continued to complain of back pain on February 1, 2008 and Dr. Helgert noted that he continued to have muscle spasm and tenderness in his paravertebral muscles in his lumbar spine, but his neurological examination seemed "ok" (AR 173). Dr. Helgert diagnosed him with chronic back pain and prescribed Skelaxin and Voltaren (AR 173).

On March 7, 2008, Justin Fridley, a state agency adjudicator, reviewed the medical evidence of record and found that Plaintiff had the medically determinable impairment of a herniated disc (AR 181). He opined that Plaintiff could perform light work, but could only occasionally climb ladders, ropes and scaffolds (AR 176-180). Mr. Fridley noted that Plaintiff claimed limitations in standing, walking, lifting and carrying (AR 181). He found his statements only partially credible however, based on his medical history, character of his symptoms, his daily activities, and the type of treatment he received (AR 181).

Plaintiff returned to Dr. Helgert on June 9, 2008, and complained of back pain and radiating leg pain, which was exacerbated by activity (AR 172). Plaintiff stated that he had lost his job, and did not feel he was able to work due to his ongoing back discomfort (AR 172). Dr. Helgert found "a little" palpatory tenderness in his low back, but there were no neurological changes in his legs (AR 172). He was continued on his medications and was to remain off work until his orthopedic consultation (AR 172).

On August 7, 2008, Plaintiff reported to Dr. Helgert that he could engage in limited amounts of activity if he was "very careful" while lifting or bending (AR 172). He claimed he could only briefly sit before needing to get up and move about, and had to take breaks with any activity (AR 172). Dr. Helgert found spasm and tenderness of his paravertebral muscles, but no neurological changes in his legs (AR 172). He was assessed with low back pain (AR 172).

Dr. Helgert completed a medical source statement for Plaintiff‟s insurance company on August 7, 2008 (AR 183-184). He opined that Plaintiff was totally disabled from performing his previous occupation, but not from working at any other occupation (AR 183). He concluded that Plaintiff could work ten hours per week, and with breaks, stand for two hours, sit for two hours, drive for one hour and walk for two hours, and was limited to sedentary work (AR 183). Dr. Helgert noted that he expected Plaintiff‟s condition to improve (AR 184).

When seen by Dr. Helgert on September 8, 2008, Plaintiff reported that he continued to be limited in his activities (AR 172). He claimed he was able to lift a "fair amount" but had difficulty with anything repetitive (AR 172). He continued to have "good days and bad days" with leg pain that waxed and waned (AR 172). He was diagnosed with back pain and his medications were refilled (AR 172).

On November 17, 2008, Plaintiff was evaluated by James Macielak, M.D., pursuant to the request of Dr. Helgert (AR 185-186). Plaintiff complained of back pain that increased proportionally to the amount of activity he performed (AR 185). He further complained of weakness in his right leg causing his leg to buckle, for which he used a cane (AR 185). Dr. Macielak noted Plaintiff‟s body mass index ("BMI") was 36.8, his gait was mildly antalgic, and he moved slowly from a sitting to a standing position (AR 185). On physical examination, he found Plaintiff had no significant structural spinal abnormalities, and his head compression rotation test and superficial palpation were negative (AR 185). Dr. Macielak found bilateral posterior superior iliac spine tenderness and bilateral sciatic notch tenderness (AR 185). Plaintiff‟s straight leg raising test produced popliteal and calf pain bilaterally, and popliteal compression was positive on the right, negative on the left (AR 185). Dr. Macielak found regional hypothesias in the right foot and no ankle reflex, but found no lower extremity manual motor deficits (AR 185). Plaintiff exhibited a symmetric range of motion in his hips, knees and ankles without irritability or instability (AR 186).

Dr. Macielak ordered x-rays, which showed a transitional segment, a sacralized L5 with a lumbosacral attachment on the left, open to the right, and evidence of retrolisthesis*fn2 at L4 and L5 (AR 186). He reviewed Plaintiff‟s previous MRI films noting his central disc herniation (AR 186). He diagnosed Plaintiff with herniated nucleus pulposis at L4-L5, degenerative disc disease at L4-L5 with retrolisthesis, transitional segment sacralized L5 and obesity (AR 186). Dr. Macielak recommended epidural injections, and, as another option, surgery, involving an instrumented fusion with discectomy decompression (AR 186).

Plaintiff returned to Dr. Helgert on December 8, 2008 and complained of back pain (AR 171). He informed Dr. Helgert he was considering undergoing epidural injections as suggested by Dr. Macielak (AR 171). Dr. Helgert found some sensory alteration in his right leg consistent with his dermatomal herniation (AR 171). He was diagnosed with a herniated ...

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