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Evanitus v. Berryhill

United States District Court, M.D. Pennsylvania

February 28, 2018

STEVEN J. EVANITUS, Plaintiff
v.
NANCY A. BERRYHILL, [1]Defendant

          CONNER, C.J.

          REPORT AND RECOMMENDATION

          KAROLINE MEHALCHICK, UNITED STATES MAGISTRATE JUDGE

         This is an action brought under Section 205(g) of the Social Security Act, 42 U.S.C. §405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying the claim of Plaintiff Steven J. Evanitus ("Mr. Evanitus") for Disability Insurance Benefits under Title II of the Social Security Act. This matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommended disposition, pursuant to the provisions of 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, and upon detailed consideration of the arguments raised by the parties in their respective briefs, it is respectfully recommended that the Commissioner's decision be VACATED, and that the case be REMANDED to the Commissioner to conduct a new administrative hearing pursuant to sentence four of 42 U.S.C. §405(g).

         I. Background and Procedural History

         Mr. Evanitus completed his GED and has prior work experience as a machinist and a maintenance worker. (Admin. Tr. 141; Doc. 7-6 p. 7). On November 9, 2005, while performing his regular duties as a maintenance worker, Mr. Evanitus was injured in a workplace accident. (Admin. Tr. 260; Doc. 7-7 p. 69). As Mr. Evanitus lifted a motor onto a machine, he heard a pop in his back. Id. After he heard the pop, he experienced immediate severe low back pain, as well as pain in his right leg. (Admin. Tr. 336; Doc. 7-8 p. 67).

         In connection with his workplace accident, Mr. Evanitus has endured a long course of medical care, consulting with many physicians and specialists, and attempting a wide range of treatments.[2] On November 17, 2005, approximately two weeks after his workplace accident, Mr. Evanitus underwent a MRI of his back, which revealed mild narrowing of the L5-Sl disc space with moderate disc desiccation, a moderate central herniation at ¶ 4-5 with mild stenosis, and a shallow disc bulge at ¶ 5-Sl.[3](Admin. Tr. 252;Doc. 7-7 p. 61). On November 23, 2005, Mr. Evanitus presented to Dr. Scinico at Northeastern Medical Center for a follow up and discussion of his MRI. (Admin. Tr. 456; Doc. 7-9 p. 75). Dr. Scinico examined him and observed his range of motion was limited in all directions and his right sciatic notch was mildly tender. Id. Dr. Scinico referred Mr. Evanitus to Dr. Griver for an epidural steroid injection, and also referred him for physical therapy. Id. Dr. Scinico noted that Mr. Evanitus reported that he tried to return to work on a light duty basis but he could not tolerate it, and was sent home. Id.

         On December 13, 2005, Mr. Evanitus presented to Dr. Griver at Advanced Pain Management Specialists, complaining of back pain. (Admin. Tr. 354-356; Doc. 7-8 pp. 85-87). Mr. Evanitus reported that his back pain was constant and his leg pain worsened when he bends. (Admin. Tr. 354; Doc. 7-8 p. 85). Dr. Griver recommended that Mr. Evanitus undergo a series of transforaminal epidurals (L5-Sl) under x-ray guidance, and in the event he still experienced pain, surgery could then be considered. (Admin. Tr. 356; Doc. 7-8 p. 87). On December 22, 2005, Mr. Evanitus underwent his first transforaminal epidural, and received two more epidurals thereafter. (Admin. Tr. 357-359; Doc. 7-8 p. 88-90).

         On March 14, 2006, Mr. Evanitus presented to Dr. Nakkache for a neurosurgical opinion. (Admin. Tr. 350; Doc. 7-8 p. 81). Mr. Evanitus reported to Dr. Nakkache that physical therapy did not help him, and actually made his back pain worse. Id. He also reported that medication only temporarily helped, and that the epidural injections did not help either. Id. Dr. Nakkache recommended Mr. Evanitus undergo a series of trigger point injections, as well as consider electromyography and nerve conduction studies of the lower extremities. (Admin. Tr. 351; Doc. 7-8 p. 82). Dr. Nakkache determined surgery was not recommended at that time. Id.

         On May 30, 2006, Mr. Evanitus followed up with Dr. Griver. (Admin. Tr. 360-362; Doc. 7-8 pp. 91-93). Dr. Griver recommended that Mr. Evanitus strongly consider surgery because the disc herniation is small and he may be a candidate for nucleoplasty. (Admin. Tr. 362; Doc. 7-8 p. 93');">8 p. 93).

         On July 19, 2006, Dr. McConnell performed an orthopaedic evaluation, at the request of Mr. Evanitus's insurance company, in connection with a second spinal surgical opinion. (Admin. Tr. 366-368; Doc. 7-8 pp. 97-99). After examining Mr. Evanitus, Dr. McConnell recommended that he work on his core, and strengthen his upper and lower extremities, as well as lumbar stabilization. (Admin. Tr. 368; Doc. 7-8 p. 99');">8 p. 99). Dr. McConnell referred Mr. Evanitus for physical therapy, and determined that if his symptoms do not improve after physical therapy, he would need to undergo further evaluation. Id.

         On August 3, 2006, Mr. Evanitus presented to Dr. De Luna for yet another evaluation, from a referral from Dr. Scinico. (Admin. Tr. 378-379; Doc. 7-8 pp. 109-111). After an examination, Dr. De Luna advised Mr. Evanitus to undergo a CT myelogram of the lumbar spine, and once that was completed, Dr. De Luna would reassess him and provide a recommendation. (Admin. Tr. 379; Doc. 7-8 p. 110');">8 p. 110). Mr. Evanitus underwent a CT myelogram on September 5, 2006, and followed up with Dr. De Luna on September 8, 2006. (Admin. Tr. 380; Doc. 7-8 p. 111');">8 p. 111). Dr. De Luna determined that Mr. Evanitus was a candidate for surgery, as he exhibited signs of a neurologic deficit, and failed conservative treatment. Id.

         On September 19, 2006, Mr. Evanitus presented to Dr. Fisher for a pre-operative physical. (Admin. Tr. 396-397; Doc. 7-9 pp. 15-16). Dr. Fisher noted that Mr. Evanitus was dismissed from Dr. De Luna's practice because he had concerns about insurance coverage. (Admin. Tr. 397; Doc. 7-9 p. 16). Dr. Fisher observed that Mr. Evanitus had limited range of motion. Id.

         On December 18, 2006, Mr. Evanitus followed up with Dr. Scinico, who recommended that Mr. Evanitus try chiropractic care. (Admin. Tr. 464; Doc. 7-9 p. 83). Dr. Scinico advised Mr. Evanitus that if chiropractic care did not improve his symptoms, he should not continue with that care. Id. Mr. Evanitus treated at Hoch Chiropractic from December 19, 2006 through January 23, 2007. (Admin. Tr. 383-389; Doc. 7-9 pp. 2-8).

         On February 19, 2007, Dr. Sedor conducted an Independent Medical Evaluation ("IME") of Mr. Evanitus, at the request of Mr. Evanitus's employer.[4] (Admin. Tr. 260-262; Doc. 7-7 pp. 69-71), (Admin. Tr. 278; Doc. 7-8 p. 9). After an exam, Dr. Sedor opined that Mr. Evanitus would have an approximate 60-70% chance of significant pain relief with surgery. (Admin. Tr. 261; Doc. 7-7 p. 70). Dr. Sedor opined that at that time, Mr. Evanitus could work a light to medium duty job as long as he was able to change positions throughout the course of the day from sitting to standing.[5] Id.

         On June 4, 2007, Mr. Evanitus presented to Dr. Fisher for a follow up. (Admin. Tr. 399; Doc. 7-9 p. 18). Dr. Fisher noted that Mr. Evanitus was interested in surgery for pain relief, and that he wanted to return to his previous position, but his limitations in lifting and bending have prevented that thus far. Id.

         On June 12, 2007, a lumbar MRI revealed Mr. Evanitus's right L5-Sl hemilaminectomy with scarring and a moderate collapse of the disc at ¶ 5-Sl. (Admin. Tr. 254; Doc. 7-7 p. 63). Dr. Sedor referred Mr. Evanitus to Dr. Welch, who ultimately determined that Mr. Evanitus would benefit from surgery. (Admin. Tr. 230; Doc. 7-7 p. 39). On August 24, 2007, Dr. Welch performed a decompressive lumbar laminectomy of L5 andSl, discectomy ofrightL5-Sl, and bilateral latera fusion of L5-Sl on Mr. Evanitus. (Admin. Tr. 208; Doc. 7-7 p. 17). After the surgery, on September 24, 2007, Mr. Evanitus followed up with Dr. Welch, who assessed that he was doing well, and that he may potentially return to work in February 2008. (Admin. Tr. 219; Doc. 7-7 p. 28).

         On February 4, 2008, Mr. Evanitus followed up with Dr. Welch, who recommended that Mr. Evanitus engage in physical therapy, work hardening, and a functional capacities evaluation. (Admin. Tr. 216; Doc. 7-7 p. 25). Dr. Welch wanted Mr. Evanitus to follow up in six months. Id. Dr. Welch observed that Mr. Evanitus's symptoms were consistent with post-laminectomy syndrome.[6] Id.

         On February 6, 2008, Dr. Feinstein conducted an IME. (Admin. Tr. 401-407; Doc. 7-9 pp. 21-26). Dr. Feinstein opined that Mr. Evanitus could work a full time job if he were provided the opportunity to sit and stand at his own discretion. (Admin. Tr. 406; Doc. 7-9 p. 25). Dr. Feinstein limited Mr. Evanitus to sedentary work and determined that in an eight hour work day, Mr. Evanitus could sit for 1-3 hours; could stand/walk for 1-3 hours; could work for 2-6 hours, and could never bend, squat, climb, kneel, or crawl. Id. On March 17, 2008, Dr. Feinstein drafted a letter that addressed an x-ray of Mr. Evanitus's spine dated February 1, 2008. (Admin. Tr. 408; Doc. 7-9 p. 27). Dr. Feinstein concluded that the result of that x-ray did not change his opinion and conclusion from the IME. Id.

         From February 11, 2008 through April 11, 2008, Mr. Evanitus followed up with Dr. Scinico. (Admin. Tr. 472-476; Doc. 7-9 pp. 91-95). At each follow up, Mr. Evanitus complained of back pain. Id. Dr. Scinico ultimately opined that Mr. Evanitus was capable of modified activity levels, including no lifting over 10 pounds, no bending more than 5 times per hour, no reaching above the shoulders, and no squatting, kneeling, or climbing. (Admin. Tr. 475-476; Doc. 7-9 pp. 94-95). Dr. Scinico determined that these modified activity levels were sedentary in demand and could be permanent, and that the medium demand level would be the highest level of functional activity that Mr. Evanitus may be able to achieve at some point. (Admin. Tr. 476; Doc. 7-9 p. 95).

         From March 17, 2008 through April 25, 2008, Mr. Evanitus participated in physical therapy at Cawley Physical Therapy. (Admin. Tr. 409-428; Doc. 7-9 pp. 28-47). On August 7, 2008, Mr. Evanitus underwent another MRI of his back, which revealed mild disc narrowing at ¶ 4-5. (Admin. Tr. 429-432; Doc. 7-9 pp. 48 -51).

         On November 14, 2008, Mr. Evanitus underwent an Impairment Rating Evaluation in connection with his workers' compensation claim. (Admin. Tr. 433-440; Doc. 7-9 pp. 52-59). Dr. Wolk conducted a clinical evaluation of Mr. Evanitus, as well as reviewed his medical records. Id. Dr. Wolk noted that Mr. Evanitus had decreased range of motion and walked with a limp. (Admin. Tr. 437; Doc. 7-9 p. 56). Ultimately, Dr. Wolk rated Mr. Evanitus's final whole person impairment at 3%. (Admin. Tr. 438; Doc. 7-9 p. 57).

         Mr. Evanitus followed up with Dr. Sedor from April 7, 2008 through April 9, 2012, where he continuously complained of back pain. (Admin. Tr. 263-270; Doc. 7-7 pp. 72-79); (Admin. Tr. 324-333; Doc. 7-8 pp. 55-64). OnApril29, 2OO9, Dr. Sedor testified at a deposition hearing, in lieu of his live appearance at Mr. Evanitus's workers' compensation hearing. (Admin. Tr. 271-313; Doc. 7-8 pp. 2-44). At the hearing, Dr. Sedor explained that as of April 2008, Mr. Evanitus could not work because he suffered from continued mechanical back pain, radiculopathy, and chronic nerve pain. (Admin. Tr. 307; Doc. 7-8 p. 38). On July 8, 2010, Dr. Sedor opined that Mr. Evanitus remained unable to work in any capacity, even sedentary jobs. (Admin. Tr. 329; Doc. 7-8 p. 60). Dr. Sedor noted that Mr. Evanitus must change positions often and at will throughout the course of the day to achieve any comfortable position. Id. On January 11, 2011, Mr. Evanitus returned to Dr. Sedor, who noted that Mr. Evanitus was having difficulty with sitting, standing, walking, and that he has to be supine at will. (Admin. Tr. 330; Doc. 7-8 p. 61).

         On March 19, 2012, Mr. Evanitus underwent a second Impairment Rating Evaluation in connection with his workers' compensation claim. (Admin. Tr. 314-323; Doc. 7-8 pp. 46-54). Dr. Pande conducted a clinical evaluation of Mr. Evanitus, as well as reviewed his medical records. Id. Palpation revealed diffused spasms in bilateral lumbar paraspinal regions and his range of motion was decreased. (Admin. Tr. 319; Doc. 7-8 p. 50). Ultimately, Dr. Pande rated Mr. Evanitus's final whole person impairment at 12%. (Admin. Tr. 320; Doc. 7-8 p. 51).

         On March 11, 2013, Mr. Evanitus protectively filed a Title II application for SSI alleging a disability onset date of November 9, 2005, the date he was injured at work. (Admin. Tr. 111-112; Doc. 7-5 pp. 2-3). In his application, he alleges he is disabled due to chronic lumbar radiculopathy, back injury, arthritis, chronic pain, depression, anxiety, numbness in right leg and right side of buttocks, and herniated disc stenosis at ¶ 4 and L5. (Admin. Tr. 140; Doc. 7-6 p. 6). Mr. Evanitus was born on June 8, 1967 and was forty-three years old on the alleged disability onset date.[7] (Admin. Tr. Ill; Doc. 7-5 p. 2). Mr. Evanitus's date last insured was on March 31, 2011, and as such Mr. Evanitus must prove that he became disabled on or before that date in order to be eligible to receive benefits under Title II of the Social Security Act.

         On May 29, 2013, Mr. Evanitus's claim was denied at the initial level of administrative review. (Admin. Tr. 91-94; Doc. 7-4 pp. 2-5). During the initial evaluation of Mr. Evanitus's claim, the disability examiner determined that Mr. Evanitus had the following severe impairments: disorders of back-discogenic and degenerative and other and unspecified arthropathies, as well as the non-severe impairment of affective disorder. (Admin. Tr. 87; Doc. 7-3 p. 5). The disability examiner concluded that Mr. Evanitus's impairments did not significantly limit his physical or mental ability to do basic work activities, and ultimately found that he was not disabled. (Admin. Tr. 88; Doc. 7-3 p. 6). Mr. Evanitus filed a timely request for a hearing before an administrative law judge ("ALJ") on June 20, 2013. (Admin. Tr. 95; Doc. 7-4 p. 6).

         On October 13, 2014, Mr. Evanitus presented to Dr. Bell, complaining of back pain. (Admin. Tr. 334-338; Doc. 7-8 pp. 65-69). After reviewing Mr. Evanitus's record and performing an examination, Dr. Bell diagnosed Mr. Evanitus with low back pain with right radiculopathy, lumbar degenerative disc disease, lumbar facet syndrome, failed back surgery syndrome, and myofascial pain. (Admin. Tr. 338; Doc. 7-8 p. 69). Dr. Bell noted that Mr. ...


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