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Donald E. Taylor v. Michael J. Astrue

June 29, 2012

DONALD E. TAYLOR, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Mason

MEMORANDUM OPINION AND ORDER

MICHAEL T. MASON, United States Magistrate Judge.

Claimant Donald E. Taylor ("Taylor" or "claimant") brings this motion for summary judgment [14] seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied Taylor's claim for Disability Insurance Benefits under Sections 216 and 223 of the Social Security Act (the "SSA"), 42 U.S.C. §§ 416(I) and 423(d). The Commissioner now requests that we uphold the decision of the Administrative Law Judge [16]. This Court has jurisdiction to hear this matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons set forth below, claimant's motion for summary judgment [23] is denied.

I. BACKGROUND

A. Procedural History

On October 23, 2007, Taylor filed a Title II application for Disability Insurance Benefits ("DIB"), alleging disability beginning November 15, 2005 due to a back injury suffered at work and complications from his HIV infection. (R. 56.) Taylor's claim was initially denied on January 18, 2008. (R. 59.) He filed for reconsideration on February 6, 2009, and his claim was once again denied on March 28, 2009. (R. 57, 630.) On April 18, 2009, Taylor filed a request for a hearing, which was held on December 21, 2009. (R. 15.) On March 19, 2010, Administrative Law Judge Sherry Thompson (the "ALJ") issued her decision denying claimant benefits. (R. 26.) On March 31, 2010, Taylor made a request for review of the ALJ's decision, which the Appeals Council denied. (R. 1, 10.) After exhausting his available administrative remedies, Taylor filed this appeal.

B. Medical Evidence

Claimant alleges disability due to a back injury and an HIV infection. (R. 56.) Claimant was treated by three different physicians in connection with these ailments: Dr. Mark Lorenz ("Dr. Lorenz") treated his back injury; Dr. Gail Gizzo ("Dr. Gizzo") is his primary care physician and internist; and Dr. James Allen ("Dr. Allen") is an HIV specialist.

1. Dr. Lorenz

Dr. Lorenz first examined claimant for his back pain on July 15, 2004. (R. 656.) Dr. Lorenz saw Taylor several times in early 2005, during which time Dr. Lorenz experimented with various work restrictions to accommodate Taylor's back problems.

(R. 348-51.) At a visit on September 8, 2005, Taylor indicated that he could no longer live with the injury, and Dr. Lorenz and Taylor discussed Taylor's surgical options. (R. 348.) On November 22, 2005, claimant had an MRI of his lumbar spine. (R. 347.) The scan revealed mild spondylotic changes similar to a previous MRI in May of 2004. (Id.) These changes included a left paracentral disk herniation at L5-S1 and a central disk protrusion at L4-L5 with mild stenosis. (Id.)

On February 22, 2006, Taylor underwent back surgery. (R. 337.) Specifically, he had an L4-L5 and L5-S1 transforaminal lumbar interbody fusion, and posterior spinal fusion with allograft. (Id.) Initially, it appeared that the surgery had improved Taylor's back problems. (R. 320-21.) However, on July 6, 2006 and August 8, 2006, Taylor complained to Dr. Lorenz that the hardware in his back was now causing him pain and discomfort. (R. 322, 336.) Dr. Lorenz examined him and indicated that Taylor was "acutely tender over the lower sacral screws... He has a well-healed scar. He has pain with forward flexion, again it is out laterally to the incision and consistent with the S1 screw. His strength is 5/5. He has a negative straight leg raise." (Id.) An x-ray on this date revealed a posterolateral fusion at L4-S1 with pedicle screw placement at L4, L5, S1 and interbody fusion. (Id.) At this point, Dr. Lorenz recommended that Taylor refrain from any work until he receives a lumbar hardware injection to help the pain. (Id.)

On September 5, 2006, Dr. Lorenz reported that Taylor did receive a lumbar hardware injection and that this did help with the pain. (R. 332.) However, on November 2, 2006, Taylor continued to complain of back pain due to the hardware in his back. (R. 329.) Dr. Lorenz noted that although the injection had helped for a period of time, the claimant was still in pain after sitting or standing for extended periods of time and they should consider removing the hardware. (Id.) X-rays from this date showed "good posterolateral fusion on the left L4-L5 and L5-S1," "good fusion on the right L5-S1," and "adequate fusion on the right L4-L5." (Id.)

On December 14, 2006, Taylor told Dr. Lorenz that he was still experiencing back pain due to the hardware and he wished to have it removed. (R. 326.) On March 12, 2007, Taylor had surgery to remove the hardware. (R. 316.) At this time, Dr. Lorenz noted that Taylor had a well-healed scar of his lumbar spine, his strength was 5/5 in his lower extremities, and he had a negative straight leg raise. (Id.)

On March 27, 2007, Dr. Lorenz examined Taylor post-surgery and noted that Taylor was still experiencing some aching in his back, but the wound looked excellent and he was neurologically intact. (R. 314.) Dr. Lorenz recommenced that they allow the wound to heal for another two or three weeks before beginning a course of physical therapy. (Id.)

On April 24, 2007, Taylor visited Dr. Lorenz for a check up and complained of continued aching in his lower back. (R. 313.) Claimant described his pain as a 3 out of 10 on the VAS scale. (Id.) Dr. Lorenz recommended that Taylor resume physical therapy but remain off work until a Functional Capacity Assessment ("FCA") could be performed. (Id.) Again, Dr. Lorenz noted that claimant was "neurologically intact" and the "[w]ound healed excellently." (Id.) His recommendation was that claimant begin physical therapy for core strength for about four weeks, and then complete an FCA. (Id.) Dr. Lorenz stated: "We will be releasing him with some restrictions. He is to be off work in the interim." (Id.)

On June 26, 2007, Taylor again returned to Dr. Lorenz and complained of increasing back pain. (R. 310.) Dr. Lorenz noted that Taylor's x-rays showed that his interbody and posterolateral fusion at L4-L5 and L5-S1 were unchanged, and that he had a well-preserved disk above it. (Id.) Dr. Lorenz also noted that Taylor was taking Hydrocodone, and that he takes more on those days he had physical therapy. (Id.) He further noted that Taylor was guarded and very slow, had difficulty with forward flexion passed 10 to 15 degrees of motion, but that he was able to heel and toe walk without difficulty and he had a negative leg raise. (Id.) Due to the fact that the physical therapy seemed to cause Taylor additional pain, Dr. Lorenz suspended Taylor's physical therapy and again recommended an FCA. (Id.) He also stated that claimant was "given no medication today." (Id.)

On July 12, 2007, Dr. Lorenz noted that Taylor did undergo an FCA, which showed him at light duty, with a maximum sitting time of 20 minutes, a maximum standing time of 60 minutes, occasional bending, maximum lifting of 11 pounds frequently, and maximum lifting of 30 pounds occasionally. (Id.) Dr. Lorenz stated that Taylor was at maximum medical improvement and his injury was a permanent restriction. (Id). He also stated that Taylor could return to work at light duty. (Id.) Dr. Lorenz referred Taylor to another surgeon for a second opinion and recommended vocational training, and he stated he would re-examine Taylor on an as-needed basis. (Id.) Dr. Lorenz also stated that "no further intervention is recommended" and "he does not need any more injections" or "further rehab." (Id.)

On February 25, 2008, Dr. Lorenz reexamined Taylor. (R. 557.) He noted that Taylor had back pain at a 3/10 on the VAS scale. (Id.) Taylor stated that his average pain was at 3 or 4 on the VAS scale but that it could get up to an 8. (R. at 551.) He indicated that Taylor cannot sit or stand for more than a few hours before needing to lay down to relieve his pain. (R. 557.) Dr. Lorenz noted that Taylor claimed that he feels "somewhat improved" overall, but he is unable to return to activities due to the limited time he can spend sitting, standing or walking. (Id.) In his notes, Dr. Lorenz also stated that Taylor will likely need to pursue permanent disability given his sitting, standing, and walking restrictions. (Id.)

Dr. Lorenz's records indicate that he last examined Taylor on March 3, 2008. (R. 556.) On that day, Dr. Lorenz indicated that Taylor still complained of back pain ranging from 3/10 to 8/10. (R. 556.) He noted that Taylor expressed difficulty with walking more than ten minutes and experienced fatigue in his right leg when he did walk for extended periods of time. (Id.) Dr. Lorenz further indicated that Taylor complained of difficulty with sitting more than twenty minutes and needed to frequently lie down to relieve the pain. (Id.) He indicated that Taylor had no focal weakness, he had a negative straight leg raise, and he is non-tender over the low back to palpation, but has difficulty with forward flexion past ten degrees. (Id.) A CT scan showed "L4 to S1 fusion with good inner body fusion and good posterial lateral fusion." It also noted "good filling into the autograft site on the left," "a slight bulge at L3-4 but no herniation, and "a very small spur on the left ... that doesn't appear to be impeding the foramen." (Id.) He gave Taylor a Vicadin prescription and recommenced that he take them one to three times per week. (Id.) He also stated that he would only see Taylor on an "as needed basis." (Id.) Lastly, he again noted that Taylor was at maximum medical improvement and that he was totally and permanently disabled from any gainful employment. (Id.) Dr. Lorenz stated that he "will support his application under Social Security Disability." (Id.)

On April 8, 2009, Dr. Lorenz filled out a "Lumber Spine Impairment Questionnaire" in connection with Taylor's claim for disability benefits. (R. 656.) Dr. Lorenz indicated that Taylor's prognosis was stable, but he had lingering lower back pain following a fusion at L4-L5. (Id.) His report further indicates that Taylor suffers from fatigue, an abnormal gait and muscle weakness, particularly with respect to his right leg. (R. 657.) Dr. Lorenz noted that Taylor's pain was at an 8/10 and constantly impaired him. (R. 658.) He further indicated that sitting, bending and walking all contributed to Taylor's pain, and he had not been able relieve the pain with medication. (Id.)

In that same questionnaire, Dr. Lorenz indicated that it was not medically recommended that Taylor continuously sit or stand through an 8-hour work day. (R. 659.) Additionally, he noted that Taylor would need a 30 minute break from sitting every 60 minutes or so. (Id.) Dr. Lorenz stated that Taylor could occasionally lift and carry up to 10 pounds, but that he could never lift or carry more than this. (Id.) He stated that Taylor was incapable of even a low stress position. (R. 660.) Dr. Lorenz further indicated that Taylor would need to take unscheduled breaks to rest on an hourly basis throughout the workday, and his impairment would cause him to miss work approximately three days of work each month. (R. 661.) Dr. Lorenz indicated that in his medical opinion the earliest date that these symptoms restricted the claimant was December 13, 2007. (Id.) He stated that he based these conclusions on "serial examinations" of the claimant, as well as the claimant's FCA. (R. 660.)

On November 23, 2009, Dr. Lorenz submitted a second form entitled "Multiple Impairment Questionnaire." (R. 708-15.) Dr. Lorenz indicated that the claimant had reached maximum medical improvement and was unable to return to gainful employment. (R. 708.) He echoed the same restrictions as in his April 8, 2009 questionnaire. (R. 708-14.) He also noted that Taylor was "non-tender over the low back to palpation but he has difficulty on forward flexion through about ten degrees of motion," and "he has pain on extension." (R. 708.) He ...


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