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Jones v. Astrue

United States District Court, D. Delaware

July 20, 2015

HOWARD T. JONES, Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

MEMORANDUM

GREGORY M. SLEET, District Judge.

I. INTRODUCTION

On May 8, 2012, the plaintiff, Howard T. Jones ("Jones"), filed this action against the Defendant Michael J. Astrue, Commissioner of Social Security (the "Commissioner"), [1] for review of the final decision denying Jones disability insurance benefits ("DIB") under Title II of the Social Security Act. (D.I. 2; D.I. 10 at 19.) Jones brought this civil action under 42 U.S.C. §405(g) as incorporated by 42 U.S.C. §1383(c)(3). (Id.)

Jones applied for disability and DIB on March 9, 2006. (D.I. 10 at 198.) Jones' claims were denied initially and on reconsideration. (Id. at 136-41, 145-49.) Subsequently, Jones filed a request for a hearing before an Administrative Law Judge ("ALJ"). (Id. at 150-51.) The claimant appeared and testified before ALJ, Judith Showalter, on May 15, 2008. (Id. at 44-48.) On June 26, 2008, the ALJ issued an unfavorable decision against Jones. (Id. at 124-25, 128.) Jones filed an appeal to the Appeals Council. (Id. at 132.) The Appeals Council remanded on September 9, 2009, for further assessment of Dr. Kamali's opinion, assessment of the February 2006 MRIs of lumbar and cervical spine, and assessment of the severity of Jones' degenerative disc disease. (Id. at 132-33.) A second hearing was held before ALJ Showalter on May 6, 2010. (Id. at 89-115.) On July 10, 2010, the ALJ issued a second opinion denying disability benefits to Jones. (Id. at 19-43.) The Appeals Council denied review of the ALJ's second opinion and the ALJ's determination became final. (Id. at 2-8.) See C.F.R. §§404.955, 404.981 (2012); Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001).

Before the court are the parties' cross-motions for summary judgment. (D.I. 12; D.I. 13.) For the reasons that follow, the court will remand-in-part and deny-in-part Jones' motion for summary judgement. The court will affirm-in-part and remand-in-part the decisions of the ALJ and the Appeals Council. The court's reasoning follows.

II. BACKGROUND

Howard T. Jones was born September 2, 1956. (D.I. 10 at 49.) He has a high school education. (Id. at 50.) Jones' previous employment was a network analyst and an ATM machine servicer. (Id. at 50, 52.) Jones is claiming disability from March 1, 2004 to December 31, 2008. (Id. at 227, 233.)

1. Medical History

a. Objective Medical Evidence

Jones has a history of neck and low back pain dating back to 1992. (D.I. 10 at 370.) Jones experienced a sharp snapping in his lower back while working in his yard in 1992. (Id.) Jones was involved in multiple minor motor vehicle accidents which re-injured his back in 1996, 1999, 2004, and 2005. (Id.) During the relevant time period Jones began seeing Dr. Stephen Levine, D.C., chiropractor, on May 4, 2005, for neck and back pain. (Id. at 332-37.) At this primary visit, Dr. Levine ordered x-rays of Jones' neck and back. (Id.) In Dr. Levine's review of the x-rays, he found Jones was suffering from degenerative disc disease in the cervical and lumbar spines. (Id. at 318-19.) Additionally, he found disc narrowing and spondylosis at L3-L5. (Id.) From these findings Dr. Levine treated Jones for three months with chiropractic manipulation and manual therapy. (Id. at 338-69.)

In December 2005, Jones began treatment with Kenneth DeGroot, D.C. for daily neck and low back pain. (Id. at 387-94.) During physical examination, DeGroot found that Jones was experiencing distortion and muscle spasms in the cervical, thoracic, and lumbar spine, as well as limited range of motion in the cervical and lumbar spine. (Id. at 389.)

In February 2006, Jones began seeing an orthopedic specialist, William Barrish, M.D., for neck and back pain. (Id. at 396-97.) At that time Jones was experiencing muscle spasms, as well as, neck and back pain which radiated into his right leg causing him difficulty sleeping. (Id. at 397.) During Jones' physical examination, Dr. Barrish found mild tenderness to palpation at the cervical and lumbar spine, decreased sensation in the right S1 distribution, and positive straight leg raising on the right. (Id.) From these results Dr. Barrish ordered an MRI of the cervical and lumbar spine. (Id. at 396.)

An MRI of the cervical and lumbar spine was completed on February 6, 2006. (Id. at 314-15.) The lumbar spine presented multi-level degenerative disc disease, including severe central canal stenosis and bilateral neural foraminal stenosis at L4-L5 with large disc protrusion and significant facet arthropathy, as well as central and paramedian disc bulges at L3-L4 and L5-S1, causing severe right-sided neural foraminal stenosis, particularly at the L5-S1 level. (Id.) The cervical spine presented multi-level degenerative disc disease, with disc osteophyte complex and spondylitic changes, most marked from the C4-C5 to the C6-C7 level, with mild central canal stenosis at that level. (Id. at 316-17.)

An EMG/nerve conduction study was taken on February 13, 2006, and was consistent with acute right L5-S1 radiculopathy. (Id. at 466.) Dr. Barrish recommended further chiropractic treatment, pain medications, and steroid injections for pain reduction. (Id. at 396.) Jones did not want to take prescription pain medications or receive steroid injections. (Id.) Additionally, Dr. Barrish referred Jones to see pain management specialist Mohammad Mehdi, M.D. (Id. at 398-99.)

Jones had follow-up appointments with Dr. Barrish on June 15, 2006, July 20, 2006, April 17, 2007, and August 13, 2008. (Id. at 458-60, 498.) During these appointments Dr. Barrish found restricted cervical and lumbar range of motion and positive straight leg raising. (Id.) At Jones' most recent appointment on January 7, 2009, the physical exam remained unchanged. (Id. at 517.)

In August 2006, Jones began seeing Dr. Mehdi for his neck and back pain. (Id. at 398-99.) Dr. Mehdi confirmed Jones was suffering from spinal stenosis, cervical spondylosis, and radicular pain on the right side. (Id. at 399.) Dr. Mehdi, also recommended anti-inflammatories and steroid injections for pain management. (Id.) Jones was not interested in pursuing steroid injections. (Id.) Dr. Mehdi recommended Jones return for steroid injections if the pain became unbearable and during the insured time period Jones did not return for injections.[2] (Id.)

Jones underwent a course of twenty physical therapy sessions between May 15, 2006, and July 17, 2006. (Id. at 427-40.) Physical therapy notes document improvement with treatment. (Id.) On July 25, 2007, Jones began treatment with orthopedic specialist, Mohammed Kamali, M.D. (Id. at 445-48.) On physical examination Dr. Kamali found mild tenderness to palpation on the right side of the neck and back with tightness, muscle spasms, and decreased range of motion in the neck. (Id. at 446.) The straight leg raising tests were positive and numbness was found in the right foot. (Id.) Additionally, Dr. Kamali reviewed Jones' MRIs of the lumbar and cervical spines. (Id.) He found severe central canal stenosis at L4-L5, large disc protrusion and significant facet arthropathy, resulting in severe central canal and bilateral neural foraminal stenosis in the lumbar spine. (Id.) Additionally, he found cervical spondylolytic changes C4-C5 to C6-C7, resulting in significant mass effect on the ventral subarachnoid space. Further, there was a mild foraminal central canal stenosis at C6-C7 in the cervical spine MRI. (Id.) Dr. Kamali confirmed Dr. Barrish's findings in the EMG study from February 2006 which revealed the presence of right L5-S1 radiculopathy with acute features. (Id. at 447.) Dr. Kamali determined Jones was suffering from a sprain of the neck and low back, with spinal canal stenosis of the cervical and lumbar spines and protruded discs. (Id.)

On October 3, 2006, Beshara Helou, M.D. evaluated Jones for State Disability Determination Services. (Id. at 400-02.) Dr. Helou performed a consultative physical exam. (Id.) She determined Jones suffered from myofascial back pain and mild degenerative disc disease with no neurological implications. (Id.) Dr. Helou opined that Jones was experiencing a mild form of degenerative disc disease and no neurological implications were present. (Id.)

On December 20, 2006, Jones saw his primary care physician, Julie Holman, M.D. (Id. at 442.) Jones suffers from Type II Diabetes. (Id.) Dr. Holman prescribed Jones medication to control the diabetes. (Id.) During this exam Jones complained of neck pain, fatigue, and tingling in his feet, right arm and right leg. (Id. at 420.) Dr. Holman noted Jones did not appear uncomfortable during the exam and that he was able to bend over and completely remove his boot unassisted. (Id. at 442.)

After Jones' last insured date, Dr. Barrish referred Jones to Ronald Sabbagh, M.D. for further evaluation. (Id. at 517.) Dr. Sabbagh ordered new MRI studies. (Id. at 518.) The January 2009 MRI of Jones' cervical spine showed mild central spinal canal stenosis at C4-C5, C5-C6, and C6-C7 and a small central disc protrusion at C4-C5. (Id.) The MRI of the lumbar spine showed a medium-sized central L4-L5 disc extrusion with moderate stenosis involving both L5 nerve roots and a small broad-based right paracentral, posterolateral, and foraminal L5-S1 disc protrusion. (Id. at 519.) Dr. Sabbagh reviewed the MRIs with Jones, on January 29, 2009, and recommended surgery to deal with the pain associated with the spinal issues. (Id. at 566.) Jones is considering surgical options for pain relief. (Id.)

b. Opinion Evidence

During the insured period Jones was seen by two treating physicians Dr. Barrish and Dr. Kamali-both orthopedic specialists.

Dr. Barrish opined that Jones was suffering from degenerative disc disease in the cervical and lumbar spine. (Id. at 397.) He recommended Jones undergo further chiropractic treatment and steroid injections. (Id. at 396.) Dr. Barrish completed Spinal Impairment Questionnaires on January 19, 2007, and November 19, 2009. (Id. at 412-18, 520-26.) On these questionnaires he opined that Jones was able to sit for eight-hours in an eight-hour work day, stand/walk for one hour in an eight-hour workday, with a sit/stand option, could occasionally lift/carry up to ten pounds, was limited in his ability to push, pull, and should avoid kneeling, bending, and stooping. (Id.) Dr. Barrish further opined that Jones would be able to sit for eight hours "with frequent position changes, " more specifically that he needed to get up and move around every thirty minutes, during the eight-hour workday, for five minutes. (Id.)

Dr. Kamali found Jones' chiropractic, medication, and physical therapy treatments had not caused significant improvement in Jones' condition. (Id. at 447.) He opined Jones was unable to tolerate "low stress work" and was "unable to do full time competitive work and has been unable to do so since early 2005." (Id. at 446-48, 475-76.) Dr. Kamali's clinical findings included limited range of motion of the cervical and lumbar spine, tenderness, muscle spasm, right facet sensory loss in the lumbar spine, hypoactive reflexes, mild lumbar muscle weakness, and numbness in the right foot. (Id. at 446.) These findings were based on physical examinations and review of the MRIs and EMG study taken by Dr. Barrish. Jones saw Dr. Kamali approximately once a week for two years. (Id. at 471.) Dr. Kamali further opined that Jones' pain would "interfere with attention and concentration" making work very difficult for Jones to perform. (Id. at 475-76.) Dr. Kamali completed a Spinal Impairment Questionnaire on July 25, 2007, where he opined that lifting, bending, standing, and sitting for too long caused Jones pain. (Id.) In Dr. Kamali's opinion, Jones could sit for three hours, stand/walk for two hours, with a sit/stand option, occasionally lift/carry up to five pounds, and perform no pushing, pulling, kneeling, bending, or stooping. (Id. at 474-75.) He further opined that Jones would need to get up three to four times a day for approximately fifteen minutes each time. (Id.)

In October 2006, Dr. Helou filed a report for the State Disability Determination Services based on her examination of Jones. (Id. at 402-408.) Dr. Helou observed that Jones did not have difficulty getting on and off the exam table, was able to perform heel-toe walking, and tandem walking. (Id. at 401.) She further observed that Jones' motor and ...


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