McLeod v. Commissioner of Social Security
Filing
15
OPINION ; signed by Magistrate Judge Timothy P. Greeley (Magistrate Judge Timothy P. Greeley, cam)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
SANDRA MCLEOD,
Plaintiff,
Case No. 2:16-cv-247
v.
HON. TIMOTHY P. GREELEY
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________________________/
OPINION
In September of 2012, plaintiff Sandra McLeod filed an application for disability
and supplemental security income insurance benefits. See Transcript of Administrative Hearing.
(ECF No. 7, PageID.262-263). Plaintiff alleges that she became disabled on January 6, 2011, due
to degenerative disc disease, plantar fasciitis, chronic muscle spasms, chronic headaches,
heightened nerve sensitivity, numbness and tingling in hands and feet, widespread pain, dizzy
spells, blurry vision, and sleep disturbances causing fatigue.
(ECF No. 7-6, PageID.293).
Plaintiff’s application was denied initially and plaintiff requested an administrative hearing before
an Administrative Law Judge (ALJ).
ALJ Brent C. Bedwell, held a hearing on October 1, 2014 (ECF No. 7-2,
PageID127-158).
Plaintiff was represented by counsel at the hearing. Plaintiff and vocational
expert John R. Reiser testified. Plaintiff was born on April 15, 1967, and has a high school
education. (ECF No. 7-2, PageID.131). Plaintiff lives with her husband and stepson. She has a
driver’s license. Plaintiff has past work experience as a casino blackjack dealer between 1996 and
2001. (PageID.132). She also worked as a valet and bell attendant. She worked until 2007, at
which time she ceased working due to her disability. (PageID.133).
Plaintiff explained that she is in chronic pain every day. When she washes dishes
her hands cramp, when she sweeps her back spasms, when she walks her hips burn, and she has
cysts in the arches of her feet. (PageID.133). The more active she becomes, the more she hurts.
(PageID.134). She takes Norco for pain, Topamax for nerve pain, Baclofen for muscle spasms,
Prilosec for her ulcer, Claritin for allergies, Remeron for depression, and Ventolin for asthma.
Plaintiff was examined by neurologist Dr. Coccia who informed her that she did
not need surgery on either her back or neck. (PageID.135). When Dr. Coccia “crammed his hand
into [her] hip” she screamed and started to cry. Dr. Coccia asked if she had been diagnosed with
having fibromyalgia. After poking her in the back, which caused her pain, Dr. Coccia informed
her that he thought she had fibromyalgia. (PageID.136). Plaintiff has had some success with
epidurals and nerve blocks. (PageID.137). Dr. Alshab cauterized the nerves in the bottom of her
back and told her that she had arachnoiditis, which she believes will eventually cripple her.
Plaintiff explains that the pain never goes away and that her daily activities are
limited. Plaintiff can watch television sitting-up until her back locks and then she needs to laydown. She does Sudoko puzzles and spends time with her pet ferret and dog. (PageID.138).
Plaintiff stated that she could sit for about one hour and stand for about one half hour to one hour
before needing to get up and move. (PageID.140). The cysts in her feet cause her pain from
standing up for too long. Plaintiff experiences hip pain from walking and needs to stop after about
one and a half blocks. (PageID.141). Plaintiff can lift up to ten pounds on a good day.
Plaintiff takes Remeron for depression, but does not see a mental health
professional. (PageID.142). She stated that without Remeron she would cry all the time, so she
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thinks that it helps. She does not engage in recommended physical therapy exercises, but just tries
to do her daily activities of keeping the house clean. Plaintiff states that she has difficulty sleeping.
Plaintiff goes to sleep about 5:00 to 6:00 am and sleeps until 2:00 to 3:00 pm in the afternoon.
(PageID.144).
The vocational expert testified that a hypothetical individual plaintiff’s age,
educational background, and work experience, who is limited to unskilled sedentary work that
allows a change in position every 30 minutes, without needing to climb ladders, ropes, or scaffolds,
limited to occasional climbing of ramps, stairs, stooping, crouching, kneeling, and crawling,
avoiding exposure to unprotected heights, and hazardous moving machinery, and who is off task
up to ten percent of the time in addition to regular breaks could not perform plaintiff’s past work
because none of those positions were sedentary. (PageID149-151). That person could find work
such as seated assembly production work (1,500 jobs in Michigan and 23,000-24,000 jobs
nationally), information clerk or appointment clerk (2,000 jobs in Michigan and 70,000 jobs
nationally), and office clerk (2,700 jobs in Michigan and 89,000 jobs nationally). The vocational
expert opined that anyone who is off task more than ten percent of the work day would be unable
to work. (PageID.153).
The ALJ found that plaintiff could perform jobs that existed in significant numbers
in the national economy given plaintiff’s residual functional capacity (RFC) and therefore
concluded that plaintiff was not under a “disability” under the Social Security Act (20 C.F.R. §
404.1520(g)). The ALJ’s decision became the agency’s final decision when the Appeals Council
denied plaintiff’s request for review. Plaintiff now seeks judicial review of the agency’s final
decision denying her request for disability benefits. Plaintiff filed this action pro se.1
1
Both parties consented to proceed before a Magistrate Judge on January 18, 2017.
3
“[R]eview of the ALJ’s decision is limited to whether the ALJ applied the correct
legal standards and whether the findings of the ALJ are supported by substantial evidence.”
Winslow v. Comm’r of Soc. Sec., 566 Fed. App’x 418, 420 (6th Cir. 2014) (quoting Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)); see also 42 U.S.C. § 405(g). The findings
of the ALJ are conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g).
Substantial evidence is defined as more than a mere scintilla of evidence but “such relevant
evidence that a reasonable mind might accept as adequate to support a conclusion.” Jones v. Sec’y,
Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). This Court is not permitted to try
the case de novo, nor resolve conflicts in the evidence and cannot decide questions of credibility.
Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); see Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (noting the ALJ’s decision cannot be
overturned if sufficient evidence supports the decision regardless of whether evidence also
supports a contradictory conclusion). This Court is required to examine the administrative record
as a whole and affirm the Commissioner’s decision if it is supported by substantial evidence, even
if this Court would have decided the matter differently. See Kinsella v. Schwikers, 708 F.2d 1058,
1059 (6th Cir. 1983); see also Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (holding that
the court must affirm a Commissioner even if substantial evidence would support the opposite
conclusion).
The ALJ must employ a five-step sequential analysis to determine if plaintiff is
under a disability as defined by the Social Security Act. Warner v. Comm’r of Soc. Sec., 375 F.3d
387, 390 (6th Cir. 2004). If the ALJ determines plaintiff is or is not disabled under a step, the
analysis ceases and plaintiff is declared as such. 20 C.F.R. § 404.1520(a). Steps four and five use
the residual functional capacity assessment in evaluating the claim. Id. The ALJ determined that
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plaintiff was not engaged in substantial gainful activity since her January 6, 2011, alleged onset
date, and plaintiff had the severe impairments of degenerative disc disease, planter fasciitis,
obesity, residuals of left foot surgery, a mood disorder, depression, and an anxiety disorder. The
ALJ noted that plaintiff had non-severe impairments of gastro esophageal reflux disease and
irritable bowel syndrome. In addition, although plaintiff alleged she suffers with fibromyalgia, the
ALJ found that without a definitive diagnosis of fibromyalgia it was a non-medically determinable
impairment. The ALJ considered plaintiff’s claims of “diffuse body pain” allegedly caused by
fibromyalgia. The ALJ found that plaintiffs’ impairments did not meet or medically equal the
severity of one of the listed impairments in 20 C. F. R. part 404, Subpart P, Appendix 1. The ALJ
determined that plaintiff has the residual functional capacity (RFC) to perform sedentary work
with additional limitations of: alternating between sitting and standing every thirty minutes, being
off task ten percent of the time, avoiding exposure to heights, hazards and the use of moving
machinery, not climbing ladders, ropes and scaffolds, and allowing only occasional stooping,
crouching, kneeling, crawling and climbing of ramps and stairs. The ALJ found that plaintiff could
perform unskilled sedentary jobs in the national economy such as production worker (23,000 jobs),
information clerk (70,000 jobs), and general office clerk (89,000 jobs). This Court must affirm
the ALJ’s findings if sufficient evidence supports the decision even if the evidence supports an
alternative conclusion.
Plaintiff argues that the ALJ erred by not finding a definitive diagnosis of
fibromyalgia in the medical records, by failing to conclude that her foot disorder met listing
1.02(A) and that her back disorder met listing 1.04, by failing to make appropriate findings of
credibility, and by failing to conclude that the 2013 mental status examination showed debilitating
mental limitations or that the medical records supported plaintiff’s allegations of disabling
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symptoms. Plaintiff further alleges that the ALJ failed in concluding that she had diminished
strength (4/5) in her lower extremities, but that her sensation and range of motion were intact.
Plaintiff argues that the ALJ failed to conclude that she suffers with a disabling
mental condition because on occasion doctors have noted that she is dysphoric. The ALJ fully
considered plaintiff’s mental impairments when considering her ability to function daily. The ALJ
stated:
The claimant testified she was not seeing a doctor for her depression.
However, she has medication that she stated was helpful with her
symptoms.
In activities of daily living, the claimant has mild restriction. The
claimant uses a pill organizer to remember her medications (Exhibit
B3E-3). She is able to prepare simple meals and perform basic
household chores (Exhibit B3E-3). The claimant testified she
manages about the same range of activities today. The claimant is
able to drive a car and go shopping (Exhibit B3E-4). Although the
claimant reported difficulties keeping her checkbook balanced, she
is able to pay bills and count change (Exhibit B3E-4). The claimant
reported having difficulties managing her personal hygiene, but the
medical records describe good hygiene (Exhibits B3E-2, Bl0F-9 and
Testimony).
In social functioning, the claimant has mild difficulties. The
claimant reported that she does not have difficulties getting along
with others (Exhibit B3E-6). She gets along with authority figures
and she has never lost a job because of problems getting along with
other people (Exhibit B3E- 7). The claimant keeps in contact with
her family and friends, but she does not go out and socialize on a
regular basis (Exhibit B3E-5). The claimant reported that her
physical pain is the main reason she does not like to go out (Exhibit
B3E-5).
With regard to concentration, persistence or pace, the claimant has
moderate difficulties. The claimant reported having memory
problems and difficulties sustaining concentration (Exhibit B3E-6).
The claimant reported being able to follow written instructions, but
having some difficulty remembering spoken ones (Exhibit B3E-6).
As for episodes of decompensation, the claimant has experienced no
episodes of decompensation, which have been of extended duration.
The claimant has not been hospitalized due to mental health issues.
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The medical records have not documented deterioration in adaptive
functioning caused by mental health symptoms.
(PageID.115-117). There exists substantial evidence to support the ALJ’s decision that plaintiff
does not suffer from a disabling mental condition.
Plaintiff argues that there exists a general consensus in the medical records that she
suffers with fibromyalgia. Plaintiff asserts that fibromyalgia appears in a number of her medical
records. In a June 8, 2010, progress note, Dr. Aldridge wrote that plaintiff presented with
subjective complaints that included “chronic pain superimposed with fibromyalgia.”
(PageID.352). Plaintiff’s Neurontin prescription was increased to 200mg three times per day to
address the fibromyalgia pain. On October 13, 2010, Plaintiff was seen for a check-up regarding
her fibromyalgia complaints. (PageID.346). At that time, her prescription for Neurontin was
discontinued despite the success in pain improvement because it caused continuous weight gain.
Plaintiff was intermittently using Robaxin and Flexeril and her chronic pain issues were to be the
subject of a one month follow-up appointment.
In 2012, plaintiff visited the Upper Peninsula Pain Institute at War Memorial
Hospital on several occasions for pain treatment. Plaintiff presented with low back pain, neck
pain, and shoulder pain. Plaintiff was diagnosed with lumbar/thoracic radicultis, lumber post
laminectomy, and fibromyalgia/myositis and was treated with epidural steroid and trigger point
injections. (ECF No. 7-7, PageID.395-435).
Documents from War Memorial Hospital, dated June 13, 2013, indicate that
plaintiff complained of chronic pain and was to be evaluated for fibromyalgia. (PageID.490). On
October 3, 2013, it was noted that plaintiff has a psychological history of fibromyalgia and
assessed with chronic pain that needed to be managed. (PageID.492). Fibromyalgia was noted in
the assessment treatment plans on January 24, 2014, and on September 23, 2014. (PageID.482,
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497). In addition, plaintiff points to the Disability Determination Explanation that concluded that
she was not disabled as evidence that she had been diagnosed with fibromyalgia due to the listing
under impairment diagnosis. (ECF No. 7-3, PageID.168, 183). The State Agency concluded, as
did the ALJ, that despite plaintiff’s limitations she maintained the residual functional capacity for
work.
Specifically concerning the fibromyalgia the ALJ found that:
The alleged fibromyalgia is a non-medically determinable
impairment. A medically determinable impairment may not be
established solely on the basis of a claimant's allegations regarding
symptoms (20 CFR 404.1508, 404.1529, 416.908, and 416 .929, and
SSR 96-4p and 96-7p). There must be evidence from an "acceptable
medical source" in order to establish the existence of a medically
determinable impairment (20 CFR 404.1513(a), 416.913(a), and
SSR 06-03p) that can reasonably be expected to produce the
symptom(s). There has not been a definitive diagnosis of
fibromyalgia in the records. At the hearing, the claimant testified
that her doctors suspect that she has the impairment, but it has not
been diagnosed. The claimant's complaints of diffuse body pain
have been considered when the undersigned reached findings
herein. Although Fibromyalgia is a non-medically determinable
impairment the claimant's complaints of pain have been considered
and are discussed below.
(ECF No. 7-2, PageID115). Plaintiff concedes in her response brief that although “fibromyalgia
has been considered and discussed, for years, in my medical record, there does not appear to be a
clear and definitive diagnosis, per se, but moreover a consensus by several medical experts.” (ECF
No. 14, PageID.535). The ALJ considered plaintiff’s complaints of pain in determining that she
had the residual functional capacity for sedentary work. The issue is not whether plaintiff was
diagnosed specifically with fibromyalgia, but whether the ALJ properly considered the medical
evidence and testimony from plaintiff regarding her pain and symptoms in reaching his conclusion
that she could perform sedentary work.
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In Warner, 375 F.3d at 392, the Sixth Circuit concluded that it was appropriate for
the ALJ to discount the claimant’s credibility as to disabling pain based upon the plaintiff’s
capacity to engage in household and social activities.
The record reflects that although Warner alleged disabling pain, he
also testified, consistent with the objective medical evidence, that he
could manage his personal hygiene, pick a coin off a table, vacuum,
drive short distances, and wash spoons and forks.
The
administrative law judge justifiably considered Warner’s ability to
conduct daily life activities in the face of his claim of disabling pain.
Id, (citing Walters, 127 F3d at 532 (6th Cir. 1997)). In Wyatt v. Secretary of Health and Human
Servs., 974 F.2d 680, 686 (6th Cir. 1992), the Sixth Circuit concluded that where the pain was not
established by objective medical evidence, or was relieved by pain medication and the plaintiff
could engage in typical household chores such as shopping and carrying bags, dishwashing,
cooking, sweeping, and driving, the conclusion that the pain was not so disabling to prevent the
plaintiff from engaging in sedentary work was supported in the record.
In this case, the ALJ concluded that:
The allegations of disabling pain are not entirely credible. The
alleged onset date is three days after a prior Administrative Law
Judge (ALJ) decision (Exhibit B5A-12). At that time, the ALJ
limited the claimant to a range of sedentary work (Exhibit B5A-8).
The claimant has complained of blurry vision and dizzy spells, but
neurological examinations of the claimant have been unremarkable
(Exhibit B12F). The medical records, including the September 2012
MRI scan reveal some deterioration of the claimant's back condition,
and the undersigned added limitations in the RFC finding to
accommodate the deterioration. While the claimant has complained
of chronic pain, physical examinations of the claimant have showed
that her condition has remained stable (Exhibits B6F-1, Bl0F-10).
The claimant's back pain has been treated conservatively and a
neurosurgeon in April 2013 recommended against any type of
surgical intervention (Exhibit B12F). Despite the claimant's
complaints of pain, the claimant has maintained the ability to
prepare meals, perform basic household chores and go shopping
(Exhibit B5E-3, 4 and Testimony). At the hearing, the claimant
testified that she could sit for up to one hour at a time and stand for
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thirty to sixty minutes. The claimant also testified that she could lift
up to ten pounds. The claimant's conservative treatment, her
physical examinations and her reported daily activities suggest that
the claimant has maintained the ability to sustain a range of
sedentary work. The claimant has complained of worsening back
pain and a decreased tolerance for standing. The undersigned has
accounted for this in limiting the claimant to a range of sedentary
work allowing for change of position between sitting and standing
every thirty minutes. The claimant's obesity has remained generally
stable during the period at issue. At the hearing, the claimant
testified that she weighed 208 pounds, which gives her a body mass
index of 35.7 kg/m2 The records indicate that the claimant's weight
has remained stable generally (Exhibit B7F-3). The claimant is not
morbidly obese, but the additional weight combined with back pain
and foot pain would make it difficult for her to climb ladders, ropes
and scaffolds and engage in more than occasional postural activities,
as included in the RFC finding.
(PageID.119). In addition the ALJ further explained how he determined that plaintiff could
perform unskilled sedentary work with some limitations.
In accordance with Social Security Ruling 96-6p, the undersigned
has considered the administrative findings of fact made by State
Agency medical physicians and other consultants. The opinions are
weighed as statements from non-examining expert sources. On
January 14, 2013, State medical consultant, Dr. Dale Blum opined
that the claimant maintained the ability to sustain the limitations in
the prior administrative law judge's finding (Exhibit B2A-12). Dr.
Blum considered the claimant's complaints and the available
evidence (Exhibit B2A-12). The undersigned gives significant
weight to the opinion. The subsequent neurosurgery consultations
suggested that the claimant did not need any surgical intervention
(Exhibit B12F). The undersigned made some changes in the RFC
finding herein, based on the evidence reflecting deterioration of the
claimant's overall condition and per the claimant's testimony. On
January 14, 2013, State psychological consultant, Dr. Joe DeLoach
opined that the claimant retained the mental ability to perform
simple and repetitive tasks (Exhibit B2A-13). Dr. DeLoach's
opinions are consistent with the July 2013 mental status examination
(Exhibit B13F). The undersigned added the off task limitation to
accommodate the claimant's reported mental impairment symptoms,
pain and fatigue. Based on the evidence, the undersigned concludes
the State Agency adequately considered the evidence of record and
significant weight is given to the opinions.
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(PageID.120). “State agency medical consultants are considered experts and their opinions may
be entitled to greater weight if their opinions are supported by the evidence.” Hoskins v. Comm’r
of Soc. Sec., 106 Fed. App’x 412, 415 (6th Cir. 2004); see also Rogers v. Comm’r of Soc. Sec., 486
F.3d 234, 245 n.4 (6th Cir. 2007) (quoting SSR 96-6P).
Although, this issue presents a close
question based solely on the objective medical evidence in the record, I cannot conclude that the
ALJ erred in assessing plaintiff’s credibility regarding her complaints of pain.
Plaintiff argues that the ALJ erred by finding that she did not meet the requirements
of Listings 1.02 or 1.04. A finding that a claimant meets or equals a listing entitles a claimant to
a presumption of disability. 20 C.F. R. § 416.920(a)(4)(iii) (“If you have an impairment that meets
or equals one of the listings . . . we will find that you are disabled.”). In general, “[f]or a claimant
to show that his impairment matches a listing, it must meet all of the specified medical criteria.
An impairment that manifests only some of those criteria, no matter how severely, does not
qualify.”
Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (noting that meeting only some
requirements, no matter how severe, is not sufficient). For listing 1.02, plaintiff must show:
1.02 Major dysfunction of a joint(s) (due to any cause):
Characterized by gross anatomical deformity (e.g., subluxation,
contracture, bony or fibrous ankylosis, instability) and chronic joint
pain and stiffness with signs of limitation of motion or other
abnormal motion of the affected joint(s), and findings on appropriate
medically acceptable imaging of joint space narrowing, bony
destruction, or ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weightbearing joint (i.e., hip, knee, or ankle), resulting in
inability to ambulate effectively, as defined in
1.00B2b;
20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 1.02; see 20 C.F.R. 1520(d); 20 C.F.R. § 404.1525;
20 C.F.R. § 1526. The regulations define the ability to ambulate by example:
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(1) Definition. Inability to ambulate effectively means an extreme
limitation of the ability to walk; i.e., an impairment(s) that interferes
very seriously with the individual's ability to independently initiate,
sustain, or complete activities. Ineffective ambulation is defined
generally as having insufficient lower extremity functioning (see
1.00J) to permit independent ambulation without the use of a handheld assistive device(s) that limits the functioning of both upper
extremities. (Listing 1.05C is an exception to this general definition
because the individual has the use of only one upper extremity due
to amputation of a hand.)
(2) To ambulate effectively, individuals must be capable of
sustaining a reasonable walking pace over a sufficient distance to be
able to carry out activities of daily living. They must have the ability
to travel without companion assistance to and from a place of
employment or school. Therefore, examples of ineffective
ambulation include, but are not limited to, the inability to walk
without the use of a walker, two crutches or two canes, the inability
to walk a block at a reasonable pace on rough or uneven surfaces,
the inability to use standard public transportation, the inability to
carry out routine ambulatory activities, such as shopping and
banking, and the inability to climb a few steps at a reasonable pace
with the use of a single hand rail. The ability to walk independently
about one's home without the use of assistive devices does not, in
and of itself, constitute effective ambulation.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00B2b.
Plaintiff testified that she could walk one and a half blocks before she needed to
stop due to hip pain. A November 26, 2013, physical examination revealed that plaintiff’s gait
was non-antalgic, without assistance, and that she could tandem gait, heel walk, and toe walk
without difficulty. (PageID.470). There is no doubt that Plaintiff’s ability to ambulate is affected
by her medical condition, but that is not enough to meet the Listing. Plaintiff cannot point to
medical evidence in the record that shows she is unable to ambulate. Plaintiff cannot meet each
of the requirements of Listing 1.02 and therefore is considered under the regulations to ambulate
effectively. Substantial evidence exists to support the ALJ’s decision that plaintiff did not meet
each of the requirements of Listing 1.02.
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A review of the complete medical record establishes that the ALJ erred when
considering whether plaintiff can meet the requirements of Listing 1.04B. Substantial evidence
does not support the ALJ’s conclusion that plaintiff does not suffer from a disabling medical
condition. Plaintiff alleges that the ALJ improperly concluded that her degenerative disc disease
did not satisfy the requirements under Listing 1.04B Disorders of the Spine. Listing 1.04B states:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
disease, facet arthritis, vertebral fracture), resulting in compromise
of a nerve root (including the cauda equina) or the spinal cord. With:
B. Spinal arachnoiditis, confirmed by an operative note or pathology
report of tissue biopsy, or by appropriate medically acceptable
imaging, manifested by severe burning or painful dysesthesia,
resulting in the need for changes in position or posture more than
once every 2 hours;
20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 1.04; see 20 C.F.R. § 1520(d); 20 C.F.R. § 404.1525;
20 C.F.R. 1526.
Specifically, plaintiff correctly points out that she was diagnosed with
arachnoiditis. The ALJ noted that medical findings were consistent with arachnoiditis, but that
there was not a definitive diagnosis of arachnoiditis. However, the ALJ was not looking at the full
MRI report when he made that finding. As the Commissioner now concedes, the September 10,
2012, MRI did confirm that plaintiff suffers with arachnoiditis. The Commissioner, nevertheless,
argues in a conclusory manner that plaintiff cannot meet the other specific requirements of Listing
104B. To meet Listing 1.04B, plaintiff has to show that her spine disorder results in a compromise
of a nerve root or the spinal cord in addition to a finding of spinal arachnoiditis by medically
accepting imaging, manifested by severe burning or painful dysesthesia resulting in the need for
changes in position or posture.
The ALJ relied in part upon a September 10, 2012, MRI scan of plaintiff’s lumbar
spine in concluding that plaintiff did not meet Listing 1.04B. The ALJ stated:
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The most significant findings were at the L5-S1 levels where there
was severe disc degeneration at L5-S1 laminectomy (Exhibit B7-5).
At the L4-5 level there was a moderate size focal disc herniation
effacing the right thecal sac (Exhibit B7F-5). Although the
radiology report suggested that the findings were consistent with
arachnoiditis, they have not confirmed the diagnosis (Exhibit B7F5). Physical examinations of the claimant revealed minimal
discomfort while sitting and the claimant was able to change from
sitting to standing without difficulty (Exhibit Bl0F-10). In addition,
the claimant has been able to ambulate with a normal gait, and
straight leg raise tests conducted in March 2013 have been negative
(Exhibit Bl0F-10). In the claimant's cervical spine, there was
evidence of degenerative disc disease at the CS-7 level (Exhibit
B7F-6). Physical examinations of the claimant from March 2013
revealed normal range of motion in the neck and normal strength in
the upper extremities (Exhibit Bl0F-10).
(PageID.115-116).
Plaintiff states that the ALJ was not looking at the full report when he made this
finding. There exists multiple copies of the results of plaintiff’s September 10, 2012, MRI in the
medical records. (PageID.410, 417, 429, 442, 466,478).
The copy that the ALJ relied upon
included a finding that the “clumping of nerve roots inferiorly [is] consistent with arachnoiditis.”
(PageID.429-430). One other complete copy included under impression at number 4,
“arachnoiditis.”
(PageID. 442-443).
Plaintiff also points to other medical records where
arachnoiditis is listed. (PageID.341, 433).
The September 10, 2012, MRI revealed:
MRI LUMBAR SPINE WI TH AND WITHOUT CONTRAST
Multisequence, multiecho MR imaging of the lumbar spine
performed before and after IV contrast enhancement. Comparison
January 12, 2007.
Normal vertebral body height. Low-grade retrolisthesis L4-5. Mild
disk space narrowing L4-5 . Severe disk space narrowing L5-Sl
with degenerative endplate change.
Ll-2 mild disk bulging.
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L4-5 interval development moderate size focal right paracentral
disk herniation effacing the right ventral thecal sac.
L5-S1 status post left laminectomy. Mild enhancing extradural
material in the posterior surgical bed consistent with postoperative
granulation tissue formation similar to prior study. No evidence for
recurrent disk herniation at the L5-S1 level. Mild bilateral neural
foraminal stenosis is secondary to facet arthropathy and posterior
osteophyte formation.
Clumping of nerve roots inferiorly consistent with arachnoiditis.
Conus medullaris satisfactory.
IMPRESSION
1. Severe lumbar degenerative disease most prominent L5-S1.
2. L4-5 interval development moderate size focal right paracentral
disk herniation.
3. L5-S1 status post left laminectomy with postoperative
granulation tissue formation. Mild bilateral neural foraminal
stenosis secondary to facet arthropathy and posterior osteophyte
formation
4. Arachnoiditis.
(PageID.442-443). In addition, plaintiff’s November 26, 2013, physical examination showed
restriction in her spine with myofascial pain present. (PageID.470). “Cervical spine flexion shows
mild instability c4-c7, low back DDD multiple levels.” (PageID.471).
Plaintiff has established that she meets Listing 104B criteria. It is undisputed that
plaintiff suffers with a disorder of the spine, severe degenerative disc disease, including a clumping
of the nerve roots, with spinal arachnoiditis confirmed by the September 10, 2012, MRI, which
the Commissioner concedes is appropriately acceptable medical imaging. Plaintiff has submitted
testimony and medical evidence which confirms painful dysethesia, including the need to change
positions each hour. Moreover, the ALJ found, in addressing functional capacity, that plaintiff
needed to change from sitting to standing every one half hour. Plaintiff’s physician Dr. Alshab
reported on November 12, 2012, that “[t]he arachnoiditis in the lower lumbar spine will be quite
15
painful we can attempt to maximize her pain control with the arthritic issues first. But the
arachnoiditis can be disabling . . .” (PageID.412). Plaintiff suffers with constant sharp, dull,
electrical pain that worsens with movement and activity. (PageID.414). Dr. Aldridge found
plaintiff “primarily disabled.” (PageID.423).
The ALJ erred by failing to conclude that the
September 10, 2012, found arachnoiditis in plaintiff’s spine.
Substantial evidence does not
support the finding of non-disability. Plaintiff’s condition meets Listing 1.04B. Plaintiff is
disabled under the Social Security Act, which entitles her to an award of benefits.
Accordingly, the decision of the Commissioner is REVERSED and the case is
REMANDED for calculation and award of benefits.
/s/ Timothy P. Greeley
TIMOTHY P. GREELEY
UNITED STATES MAGISTRATE JUDGE
Dated: March 14, 2018
16
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