United States District Court, M.D. Pennsylvania
STEVEN J. EVANITUS, Plaintiff
NANCY A. BERRYHILL, Defendant
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK, UNITED STATES MAGISTRATE JUDGE
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
Background and Procedural History
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).
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. 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.(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.
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).
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.
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).
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.
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.
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
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
February 19, 2007, Dr. Sedor conducted an Independent Medical
Evaluation ("IME") of Mr. Evanitus, at the request
of Mr. Evanitus's employer. (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. Id.
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
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).
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. Id.
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.
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.
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).
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).
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).
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).
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. (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.
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).
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. ...