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Spear v. Astrue

United States District Court, W.D. New York

September 30, 2014



MARIAN W. PAYSON, Magistrate Judge.


Plaintiff Michael Allen Spear ("Spear") brings this action pursuant to Section 205(g) of the Social Security Act ("SSA"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying his application for Disability Insurance Benefits ("DIB"). Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States Magistrate Judge. (Docket # 13).

Currently before the Court is Spear's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket # 10). Spear requests that the Court reverse the judgment of the Commissioner and remand for calculation of benefits or for further administrative proceedings. ( Id. ). Also pending before the Court is the Commissioner's motion for judgment on the pleadings. (Docket # 7). For the reasons set forth below, I hereby vacate the decision of the Commissioner and remand this claim for further administrative proceedings consistent with this decision.


I. Procedural Background

Spear applied for DIB on August 24, 2009, alleging disability beginning on May 25, 2005, due to a herniated disc contacting a nerve root, post-traumatic stress disorder ("PTSD"), anxiety disorder, high blood pressure, acid reflux and degenerative disc disorder. (Tr. 97, 102, 119).[2] On February 9, 2010, the Social Security Administration denied Spear's claim for benefits, finding that he was not disabled. (Tr. 61-64). Spear requested and was granted a hearing before Administrative Law Judge Michael W. Devlin (the "ALJ"). (Tr. 65-66, 77-93). The ALJ conducted a hearing in Rochester, New York on April 28, 2011. (Tr. 38-53). Spear was represented at the hearing by his attorney, Kelly Laga, Esq. (Tr. 38, 96). In a decision dated July 8, 2011, the ALJ found that Spear was not disabled and was not entitled to benefits. (Tr. 20-29).

On November 26, 2012, the Appeals Council denied Spear's request for review of the ALJ's decision. (Tr. 1-5). Spear commenced this action on January 9, 2013 seeking review of the Commissioner's decision. (Docket # 1).

II. Non-Medical Evidence

A. Spear's Application for Benefits

Spear was born on January 7, 1971 and is now forty-three years old. (Tr. 115). Spear graduated from high school in 1990 and attended BOCES in 1990. (Tr. 124). Spear previously worked as a maintenance technician in the military from 1995 through 2005. (Tr. 120). At the time of his application, Spear was taking Atenolol to control his high blood pressure, Ambien to assist his sleep, Cymbalta to address his PTSD, anxiety and depression, Methadone and Salsalate to alleviate his pain, and Omeprazole and Doccusat to address digestive issues. (Tr. 123). According to Spear, the Methadone made him drowsy. ( Id. ).

At the time of his application, Spear reported that he spends his days watching television, reading, or using the computer. (Tr. 127). Spear reported that he enjoys reading, watching television, playing video games, assembling and painting plastic car models, and playing musical instruments. (Tr. 130). According to Spear, he is able to prepare simple meals daily and goes grocery shopping once a month for approximately one hour. (Tr. 127-28). Spear is able to care for his personal hygiene, although he experiences pain while shaving if he stands for too long. (Tr. 127-28). In addition, Spear is able to complete simple household chores including laundry, but needs assistance to complete more involved household chores such as vacuuming, mopping, sweeping or yard work. (Tr. 129).

Spear leaves his house three to four times per week or as needed to attend medical appointments. (Tr. 129, 131). Spear reports that he is not very social because he has difficulty going places due to his walking limitations and his difficulty traveling in automobiles. (Tr. 131). According to Spear, he has a driver's license, but is unable to drive because of his anxiety traveling in automobiles. (Tr. 129). Spear reported that he experiences occasional anxiety or panic attacks when traveling in automobiles. ( Id. ).

According to Spear, he is unable to walk, stand or sit for long periods of time, frequently experiences pain and has difficulty sleeping, often awakening two to six times each night. (Tr. 127). Spear reports that he has trouble lifting anything heavier than ten pounds and has difficulty climbing stairs, kneeling, squatting and reaching. (Tr. 131). According to Spear, he uses a cane to ambulate, and when his pain is very bad, he uses a walker that was prescribed by his doctor. (Tr. 132). Spear reports that he can walk approximately 100 yards before needing to rest for ten minutes. ( Id. ). According to Spear, he does not have any problems getting along with others, but has difficulty dealing with stress. (Tr. 132-33).

Spear reports that he began experiencing pain in his back in August 2003. (Tr. 134). According to Spear, the pain is centered in his lower back, but radiates to the sides of his back, up his spine and down his left leg. ( Id. ). Spear described the pain as sharp, stabbing, burning and "like electricity flowing." ( Id. ). Spear also experiences numbness, pain and pressure in his left leg. ( Id. ). According to Spear, he experiences pain that varies in intensity without identifiable triggers. (Tr. 135). Spear takes Methadone, but reports that it does not alleviate his pain. ( Id. ). According to Spear, the Methadone does not cause any side effects. ( Id. ).

B. The Disability Analyst's Assessment

On January 25, 2010, disability analyst C. Cusmano ("Cusmano") completed a Physical Residual Functional Capacity ("RFC") Assessment. (Tr. 54-59). Cusmano opined that Spear could occasionally lift twenty pounds and could frequently lift ten pounds. (Tr. 55). According to Cusmano, Spear could stand or walk for about six hours during an eight-hour workday and could sit for about six hours in an eight-hour workday. ( Id. ). According to Cusmano, Spear had no limitations in his ability to push or pull. ( Id. ). Cusmano opined that Spear did not have any further physical limitations. (Tr. 56-57).

III. Relevant Medical Evidence[3]

A. Physical Health Treatment Records

On September 12, 2007, Spear attended an appointment with physician's assistant Laurie Thiele ("Thiele") at the Veteran's Affairs Medical Center ("VAMC"). (Tr. 202-03). During the appointment, Spear requested an increase for his 40% service-connected spine condition, reporting "pain all the time, usually a 9/10, " and appeared unable to stand erect. ( Id. ). The treatment record reflects that Spear was being treated at the pain management clinic by Jackie Coates ("Coates"), a nurse practitioner, who had prescribed Percocet to manage Spear's pain. ( Id. ). According to Spear, he had been experiencing increased back pain for the past year and one-half and had decreased mobility. ( Id. ). Spear reported experiencing "flareups" five to ten times per day that could last anywhere from seconds to fifteen minutes, which were occasioned by grabbing, and intense pain in the middle back, prohibiting him from walking. ( Id. ). Spear had started using a walker to compensate due to an increased weakness in his left leg and to prevent himself from falling. ( Id. ). Spear reported that he could bathe and dress himself, but could only walk 100-200 feet before having to stop and rest. ( Id. ). According to Spear, his painful condition prevented him from performing any occupation that required sitting, standing, lifting, twisting or bending. ( Id. ).

Thiele reviewed a September 7, 2006 MRI that revealed a "slight disc bulge at L4-L5" and a "moderate disc protrusion S1." ( Id. ). Upon examination, Thiele noted that Spear walked "flexed forward in obvious discomfort." ( Id. ). Thiele observed an "obvious left paravertebral spasm at L3 to sacrum level" and limited range of motion due to pain. ( Id. ). Although Spear could flex forward to 70 degrees, he did so in pain. ( Id. ). Spear reported decreased sensation over his entire left leg. ( Id. ). Thiele diagnosed Spear with a lumbar strain. ( Id. ). Thiele further noted that the generalized location of numbness in Spear's left leg was inconsistent with lumbar radiculopathy, which causes specific areas of the leg to be affected. ( Id. ).

On April 2, 2008, Spear attended a pain management appointment with Coates. (Tr. 254-56). During the appointment, Spear stated that he experiences some periods of improved pain and that he was not currently experiencing any leg pain. ( Id. ). Spear rated his current continuous back pain as a ten out of ten and described the pain as "burning and tingling." ( Id. ). According to Spear, his pain gets worse in cold weather, and affects his sleep, appetite, emotions, physical activity, concentration and social relationships. ( Id. )

Coates noted that Spear suffers from chronic lower back pain and degenerative and herniated L5-S1 disc. ( Id. ). According to Coates, Spear reported worsening symptoms despite the absence of EMG findings and two neurosurgical opinions that Spear was not a surgical candidate. ( Id. ). According to Coates, Spear continued to use a walker to ambulate and reported that his pain prohibited him from walking without the assistance of the walker. ( Id. ). Coates prescribed Capsaicin cream for pain. ( Id. ). At the time, Spear's pain medications included Duloxetine, Salsalate and Morphine, and he was taking Prednisone for inflammation. ( Id. ). Over the course of the next eight months, Spear regularly renewed his Morphine prescription.[4] (Tr. 313-35).

On January 6, 2009, Spear returned to the pain management clinic for an evaluation. (Tr. 228-32). Spear was evaluated by Igor W. Rosien ("Rosien"), MD. ( Id. ). Spear reported that his back pain began in 1998 when he awoke and was unable to get out of his bed. ( Id. ). According to Spear, he was treated with injections for Lidocaine. ( Id. ). Two years later, Spear experienced a similar incident which resolved after approximately ten days. ( Id. ). In August 2003, when he was in the Navy, he was in a motor vehicle accident which re-injured his back. ( Id. ).

Spear reported chronic, continuous pain and that he was unable to tolerate driving or cold weather. ( Id. ). Since his last appointment at the pain management clinic in April 2008, Spear claimed that his pain had been more or less the same, with some periods of improved pain during the day. ( Id. ). He said the pain was still centered in his lower back and was occasioned by episodic "jolts" of pain that were intense and severe and would radiate down his left leg if he attempted to straighten his back. ( Id. ). Spear reported that repositioning did not help reduce the pain and rated his sleep quality as poor. ( Id. ). Spear rated his pain as a seven out of ten at the time of the evaluation. ( Id. ).

Rosien reviewed the results of a November 2006 MRI of Spear's spine. ( Id. ). According to Rosien, the images revealed loss of normal lordotic curvature of the lumbar spine with straightening, and desiccation of disc material at L5-S1. ( Id. ). In addition, there was a slight disc bulge at L4-L5 with a "slight mass effect over thecal sac and slight narrowing of neural foramina with a moderate size left posterolateral disc protrusion with posterior and central extension causing mild compression of the left S1 nerve root." ( Id. ). According to Rosien, there had been "mild progression in size of the protruded disc" and "mild bilateral narrowing of neural foramina at L5-S1" compared with previous examinations. ( Id. ). Upon examination, Spear exhibited visible pain behavior, including difficulty when trying to stand, sit, or ambulate, but also appeared to have a steady gait. ( Id. ). Rosien noted that Spear used a cane to ambulate. ( Id. ). Rosien's plan for Spear was to continue on his current analgesic regimen and recommended that Spear purchase Melatonin over the counter to help with sleep. ( Id. ).

On May 5, 2009, Spear attended an appointment with Rebecca A. Drayer ("Drayer"), MC, M.Sc. (Tr. 221-24). Treatment notes indicate that Spear previously received treatment from Dr. Eckert, but had been reassigned to Drayer for primary care. ( Id. ). Spear's chief complaint was back pain resulting from an automobile accident that occurred in 2003. ( Id. ). Spear reported that his pain medications were not managing his pain and that he had previously attempted physical therapy and chiropractic treatments, but that they had aggravated his pain. ( Id. ). Spear was still having issues sleeping and walking. ( Id. ). During the appointment, Spear used a cane and appeared to be in some discomfort. ( Id. ). Drayer suggested that Spear may have to begin taking Ambien to help him sleep, and concluded that another evaluation by Rosien was necessary to reevaluate his pain medication. ( Id. ).

Spear met with Rosien six days later on May 12, 2009. (Tr. 216-20). Spear reported that he had not improved since his last visit and that the Morphine was ineffective and was not "touching the pain." ( Id. ). Spear was not interested in increasing the dosage of the Morphine and reported more issues sleeping despite using Melatonin. ( Id. ). Spear rated his pain as an eight out of ten at the time of the appointment and demonstrated difficulty in standing and sitting. ( Id. ). Unlike his last appointment with Rosien, where his gait appeared steady, Spear exhibited an antalgic gait. ( Id. ). Rosien recommended an acupuncturist and substituting Methadone for Morphine to manage Spear's pain. ( Id. ). The treatment notes provide a rating for service connected impairments. ( Id. ). The notes indicate a forty percent lumbosacral or cervical strain rating, a ten percent hypertensive vascular disease rating, a zero percent hiatal hernia rating, and a thirty percent major depressive disorder rating, concluding with a sixty percent total service connection rating. ( Id. ).

On the same date, Spear met with registered nurse Lynn M. Bement ("Bement") for a comprehensive pain examination. (Tr. 215-16). Spear reported that his pain began in 1998 and rated it to be a ten out of ten, at worst, and an eight out of ten, at best. ( Id. ). He claimed he could live with pain at a level of five out of ten. ( Id. ). Spear described the pain as "aching, burning, pressure, shooting, stabbing, throbbing." ( Id. ). According to Spear, nothing alleviates his pain, which interferes with his ability to work, concentrate, sleep and perform physical activities. ( Id. ). The next day, May 13, 2009, Coates prescribed a conversion from Morphine to Methadone, at a rate of 5mg every eight hours. (Tr. 220).

Spear attended a follow-up appointment with Rosien on June 23, 2009 to monitor his progress since beginning Methadone. (Tr. 210-14). Spear reported no improvement despite taking Methadone and continued difficulty sleeping. ( Id. ). Spear reported his pain as a seven out of ten. ( Id. ). Upon examination, Spear demonstrated difficulty standing and sitting, exhibited an antalgic gait, and used a cane. ( Id. ). Rosien increased Spear's Methadone dosage to 10mg, recommended that Spear attend an appointment with a PTSD therapist, and referred Spear to Behavioral Sleep Medicine. ( Id. ). He also referred Spear to an acupuncturist. ( Id. ).

On October 30, 2009, Spear met with Francis E. Skea, RN, for a comprehensive pain assessment. (Tr. 207-08). Spear rated his pain at six out of ten, claiming it was at its worst at eight out of ten and its best at five out of ten. ( Id. ). Again, Spear rated the pain he could live with as a five and claimed his pain was continuous, made worse when he moved, and inhibited his physical activity, relationships with others and enjoyment of life. ( Id. ).

That same day, Spear met with Coates and reported that acupuncture and medicine had been helpful in counteracting the pain. (Tr. 205-07). Coates increased Spear's Methadone dosage to 15mg in the morning, 10mg eight hours later, and 10mg at bedtime. ( Id. ). In addition, she referred Spear for a sleep study and EKG. ( Id. ).

Spear met with Rosien for a pain management evaluation on January 12, 2010. (Tr. 412-17). Spear reported that the acupuncture had provided improvement, but that he was unable to maintain attendance due to "other commitments." ( Id. ). Spear claimed there had been no improvement with his pain management since October 2009 and rated his pain at eight out of ten. ( Id. ). He stated that he was experiencing increased pain involving the lower lumbar, midline, and left paraspinal regions. ( Id. ). His left leg was twitching, increasingly weak, and causing problems with his balance, especially upon transitioning from an upright to supine position. ( Id. ). Upon examination, Spear exhibited pain behaviors and appeared uncomfortable sitting upright and was positive for an antalgic posture and gait. ( Id. ). Spear demonstrated difficulty sitting and needed to use his arms to rise from a seated position. ( Id. ). Spear was unsteady while seated on the examination table and had to use his cane for balance. ( Id. ).

Spear's back was tender upon palpation and had restricted range of motion in all directions due to pain. ( Id. ). Spear performed straight leg raises without symptoms, but was unable to perform heel or toe walks without falling. ( Id. ). Spear had a slightly wide gait that required the use of a cane. ( Id. ). The results of the examination caused Rosien to be concerned that Spear's back impairment had progressed, and he recommended another MRI with spring flex/extension films and ...

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