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Mark Luther Troup v. Michael J. Astrue

April 18, 2012


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



Mark Luther Troup ("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 February 8, 2008, alleging disability since March 1, 2002 due to cervical surgery (AR 104-114; 69-82; 132).*fn1 His applications were denied, and he requested an administrative hearing before an administrative law judge ("ALJ") (AR 46-54; 63-64). Following a hearing held on November 30, 2009 (AR 23-42), the ALJ issued his decision denying benefits to Plaintiff on February 22, 2010 (AR 9-22). Plaintiff's request for review by the Appeals Council was denied (AR 1-4), 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, both motions will be denied and the matter will be remanded to the Commissioner for further proceedings.


Plaintiff was 46 years old on the date of the ALJ's decision and completed school through the ninth grade (AR 129; 139). He has past relevant work experience as an assembler, a lumber delivery driver, a landscape foreman, and a foundry mold pourer (AR 134).

A. Medical evidence

Plaintiff was treated at the Elk Valley Medical Center for complaints of back, neck and wrist pain beginning in July 2002 (AR 189-248). On September 5, 2002, John Flamini, M.D., performed an EMG and nerve conduction studies of the Plaintiff's upper extremities, which revealed minimal changes in the Plaintiff's right wrist, compatible with median neuropathy (AR 182-183). Dr. Flamini recommended a right wrist splint and further cervical diagnostic studies (AR 183). A cervical MRI showed a herniated disc at the C5-6 level with significant compression of the cervical canal (AR 228). On October 9, 2002, Plaintiff was seen in the emergency room for low back pain after lifting pallets at work (AR 231). He was seen by Wes Hilbert, M.D. for follow up on October 10, 2002, who diagnosed him with low back muscle strain and prescribed Motrin and Vicodin (AR 232).

On January 15, 2003, Plaintiff underwent an anterior cervical decompression and fusion with bone grafting without any significant complications (AR 14; 213; 215). On April 24, 2003, Plaintiff had a lumbar MRI which revealed mild degenerative changes at the L2-3 level with no significant stenosis or disc protrusions noted (AR 283). When seen by Dr. Hilbert on July 25, 2003, Plaintiff complained of back and neck pain, and reported that he continued to experience weakness and "clumsiness" in his arms and legs (AR 199). He was diagnosed with residual neck pain and lower back pain, and was prescribed Vicodin and Elavil (AR 200). Dr. Hilbert noted that Plaintiff had an appointment with Dr. Thomas for chronic pain management (AR 200).

When seen by Dr. Hilbert on September 8, 2003, Plaintiff continued to complain of back and neck pain, and reported that Dr. Thomas had suggested water therapy for his low back pain (AR 197). On October 9, 2003, Plaintiff reported that his neck pain was "halfway better" and "livable" since his surgery (AR 195). Dr. Hilbert noted that Plaintiff's pain was "stable" on Vicodin, and he instructed Plaintiff to follow through with a cervical MRI and aquatic physical therapy (AR 196).

On July 20, 2005, Plaintiff began treatment at Community Health Net upon referral from the Department of Public Welfare ("DPW") due to a lack of insurance (AR 274). He complained of lower back pain (AR 274). Plaintiff was assessed with low back pain and was instructed to use over the counter medications until further evaluation (AR 274). Plaintiff continued to complain of low back pain when seen by a nurse on August 2, 2005 (AR 273). A lumbar x-ray of Plaintiff's spine dated August 9, 2005 showed relatively mild chronic changes at the L2-L3 and L4-5 levels (AR 255). When seen at Community Health Net on August 26, 2005, Plaintiff reported low back pain and left groin pain radiating down to his knee (AR 272). His x-rays were reviewed, and it was noted that his MRI in 2003 showed mild disc degeneration with no evidence of significant stenosis or disc protrusions or extrusions (AR 272). Plaintiff was assessed with low back pain, medications were prescribed, and an MRI was scheduled (AR 272). On September 5, 2005, a lumbar MRI of Plaintiff's spine showed degenerative changes isolated to the L2-3 disc level without nerve root impingement or other pathology (AR 281).

Plaintiff was referred for outpatient physical therapy in October 2005 by R. Anthony Snow, M.D., from Community Health Net (AR 251). Upon evaluation, Plaintiff reported intermittent low back pain and left thigh pain for the past one and one-half years (AR 251). He stated that his pain was exacerbated by repeated bending, prolonged sitting and walking distances (AR 251). He indicated that his symptoms were reduced when lying down (AR 251). Physical examination revealed decreased trunk range of motion, decreased tolerance for walking and sitting, and poor sitting posture and body mechanics (AR 253). The therapist recommended Plaintiff undergo three weeks of physical therapy, consisting of a home exercise program, a therapeutic exercise program, modalities for pain management, and posture and body mechanics education (AR 253).

Plaintiff returned to Community Health Net on November 10, 2005 and was seen by Merja Wright, M.D. (AR 270). Plaintiff reported a history of neck surgery, but indicated that his neck was "doing pretty well" with only occasional stiffness (AR 270). Plaintiff's main complaint was chronic back pain due to a work injury in August 2002 (AR 270). Plaintiff reported chronic discomfort with exacerbation radiating to the left groin area (AR 270). On physical examination, Dr. Wright noted that Plaintiff showed "really poor conditioning," however, he was able to bend forward, backwards, and side to side, with some complaints (AR 270). Plaintiff's straight-leg raising test produced pain in his back (AR 270). Dr. Wright assessed Plaintiff with chronic lumbar pain and indicated he was a good candidate for pain management since his pain was "so specific" to his left groin (AR 270).

On November 22, 2005, Plaintiff continued to complain of lower back and leg pain radiating to his groin (AR 269). The nurse noted that Plaintiff looked like he was "in obvious pain" (AR 269). Physical examination revealed that he was unable to walk heel to toe without difficulty and was unable to bend down to touch his toes (AR 269). Straight leg raise testing produced bilateral pain when raised greater than forty degrees (AR 269). He was diagnosed with degenerative disc disease (AR 269).

Plaintiff complained of back pain when seen by Dr. Wright on December 22, 2005 (AR 268). On physical examination, Dr. Wright found he could bend forward, backward, and from side to side, but experienced pain in his groin when bending backward (AR 268). She diagnosed him with lumbar pain and a history of neck surgery, and scheduled him for possible injection therapy with Dr. Carnes (AR 268).

On January 5, 2006, Plaintiff returned to Dr. Wright and reported that his neck was "somewhat uncomfortable" and that he experienced numbness in his fingers upon bending his head towards the left (AR 268). On physical examination, Dr. Wright found Plaintiff was in no acute distress, he was able to get on and off the examination table without any sign of discomfort, and his neck and lumbar range of motion was "better" than his last visit (AR 268). He was diagnosed with, inter alia, neck and lumbar pain (AR 268).

Plaintiff returned to Dr. Wright on February 13, 2006 and reported that he had received an epidural injection to his lower back but was still having problems in his upper neck area (AR 265). He claimed that he still had "a lot of problems," especially left-sided numbness and pain, and requested a referral to a neurosurgeon (AR 265). On physical examination, Dr. Wright noted Plaintiff was in no acute distress, he exhibited a "fairly reasonabl[e]" range of motion in his neck, somewhat limited left arm range of motion, and "surprisingly good" grip strength (AR 265). She diagnosed him with history of herniated disc in his neck, and status post surgery with continued symptoms (AR 265). She ordered an MRI and referred him to neurosurgery (AR 265).

A cervical MRI dated February 24, 2006 revealed an "unremarkable postoperative evaluation" of the cervical spine showing a fusion at the C5-6 level and no evidence of spondylosis or degeneration above or below the fusion site (AR 280).

On March 10, 2006, Plaintiff received a lumbar injection performed by Dr. Carnes (AR 345). When seen by Dr. Wright on March 17, 2006, Plaintiff reported some improvement following the epidural injection, but still complained of significant discomfort (AR 264). On physical examination, Dr. Wright noted Plaintiff was in no acute distress; his neck range of motion was not full due to his previous fusion surgery; his arm range of motion was good; his strength had improved; and there was no sensory loss (AR 264). Dr. Wright further found that Plaintiff's straight leg raising test was negative, observing that he could raise his leg up to almost ninety degrees without any discomfort in his lower back (AR 264). She noted that his cervical MRI revealed "just the old surgery and no new changes" (AR 264). Plaintiff was assessed with lumbar and cervical pain and he was to continue his treatment with Dr. Carnes and a neurologist (AR 264). On April 20, 2006, Plaintiff received a lumbar injection performed by Dr. Carnes (AR 332).

On May 12, 2006, Dr. Wright noted that Plaintiff's lumbar MRI in September showed some degenerative changes but "did not look bad" (AR 263). Plaintiff complained of pain radiating to his groin but indicated it had improved with injection therapy (AR 263). He was diagnosed with chronic lumbar pain with degenerative changes (AR 263). Plaintiff continued to complain of lumbar pain radiating to his testicles and left leg at his office visit on June 21, 2006 (AR 259).

On March 7, 2008, Plaintiff completed a disability function report describing how his impairments limited his activities (AR 155-164). Plaintiff reported that he was independent in his personal care with some difficulty, was able to prepare meals and grocery shop, but was unable to perform household chores or yard work (AR 156-158). Plaintiff indicated he was able to watch television but did so while lying down in order to relieve the pressure on his back (AR 159). Plaintiff claimed the "only way" to relieve his pain was to lie down (AR 162).

Plaintiff underwent a consultative examination on April 29, 2008 performed by Silvia Ferritti, D.O., pursuant to the request of the Commissioner (AR 285-293). Plaintiff relayed his past medical history and reported that he continued to have left low back pain with radiation to his legs (AR 285). He claimed he had difficulty sitting for 15 to 20 minutes, standing for 15 to 20 minutes, and walking for 15 to 20 minutes (AR 285-286). He reported that lying down on his side made him "feel better" and he took Aleve and Advil for pain relief (AR 286).

On physical examination, Dr. Ferretti found Plaintiff's cervical range of motion was mildly decreased on left rotation, his muscle strength was 5/5 bilaterally, his sensation was intact, and his lower extremity reflexes were 2/4 and symmetrical (AR 286). Plaintiff was able to heel and toe walk, his straight leg raising test was negative in both the sitting and supine positions, and his hip, knee and ankle range of motion were within normal limits (AR 286-287). Dr. Ferretti did find paravertebral muscle spasm in Plaintiff's thoracic and lumbar area (AR 287). Dr. Ferretti formed an impression of chronic pain syndrome particularly in the low ...

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