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TRIAL MEMORANDUM
(Pre-Hearing Statement and Proposed Order)
IN THE CASE OF:
Name:Chesney Zakonni Date: December 2, 2010
SSN: 110-10-1955
Claim For:Period of Disability and
Disability Insurance Benefits (Title II)
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JURISDICTION AND PROCEDURAL HISTORY
On June 23, 2006, the protective filling date (B3E-1), the claimant filed an application for Title II Disability Insurance Benefits under Section 216(i), 223(d) of the Social Security Act, alleging an onset of disability as of June 15, 2004 (B3E-1) when the claimant was involved as a motorcyclist in a head on collision with an automobile. This claim was initially denied and is now before the court on a timely written request for a hearing filed on February 23, 2007. The Claimant’s DLI is September 30, 2006(B3E). The claimant is 45 years old.
To the best of counsel’s knowledge and belief, at the time of writing this memorandum, the claimant has no prior claims for Disability insurance benefits and/or Supplemental security income benefits and the record supports a fully favorable decision. Since the record supports a fully favorable decision; the claimant would propose that no hearing needs to be held (20CFR) 404.948(a) and 416.1448(a)). The claimant is represented by Vera Smart, who is an attorney. |
ISSUES
The issue before the Court is whether the claimant is disabled within the meaning of the Social Security Act, Sections 216(i), 223(d) and 1614(a)(3)(A) as amended. Disability is defined as the inability to engage in any substantial gainful employment by reason of any medically determinable physical or mental impairment or combination of impairments that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months.
With respect to the claim for a period of disability and disability insurance benefits, there is not an issue as to whether the insured status requirements of sections 216(i) and 223 of the Social Security Act are met. The claimant’s earnings record shows that the claimant has acquired sufficient quarters to remain insured through September 30, 2006, the claimant’s DLI.
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(PROPOSED) CONCLUSION
After careful review of the evidence and consideration of the entire record as a whole and by applying the sequential steps outlined in the regulations 20 CFR §§404, 1520(a) and 416.920(a), it is proposed that the court finds and concludes that the claimant has been disabled from, the alleged date of onset through, the date of the court’s decision and further finds that the insured status requirements of the Social Security Act were met as of the date disability is established.
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APPLICABLE LAW
Under the authority of the Social Security Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled (20 CFR §§404.1520(a) and 416.920(a)). The steps are followed in order. If it is determined that the claimant is or is not disabled at a step of the evaluation process, the evaluation will not go on to the next step.
At step one the Administrative Law Judge must determine whether the claimant is engaging in substantial gainful activity (20 CFR §§404.1520(b) and 416.920(b)). Substantial gainful activity (SGA) is defined as work activity that is both substantial and gainful. If an individual engages in SGA, that individual is not disabled regardless of how severe that individual’s physical or mental impairments are and regardless of age, education, and work experience. If an individual is not engaging in SGA, the analysis proceeds to the second step.
At step two, the Administrative Law Judge must determine whether the claimant has a medically determinable impairment that is “severe” or a combination of impairments that is “severe” (20 CFR §§404.1520(c) and 416.920(c)). An impairment or combination of impairments is “severe” within the meaning of the regulations if it significantly limits the individual’s ability to perform basic work activities. If the claimant does not have a severe medically determinable impairment or combination of impairments, the claimant is not disabled. If the claimant has a severe impairment or combination of impairments, the analysis proceeds to the third step.
At step three, the Administrative Law Judge must determine whether the claimant’s impairment or combination of impairments meets or medically equals the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR §§404.1520(d), 404.1525, 404.1526(d), 416.925, and 416.909). If the claimant’s impairment or combination of impairments meets or medically equals the criteria of a listing and meets the duration requirement (20 CFR Part 404, Subpart P. Appendix 1 (20 CFR §§404.1509 and 416.909), the claimant is disabled. If it does not, the analysis proceeds to the next step.
Before considering step four of the sequential evaluation process, the Administrative Law Judge must first determine the claimant’s residual functional capacity (20 CFR 404.1520(e) and 416.920(e)). An individual’s residual functional capacity is the individual’s ability to do physical and mental work activities on a substantial basis despite limitations from the individual’s impairments. In making this finding, the Administrative Law Judge must consider all of the claimant’s impairments, including impairments that are not severe. (20 CFR §§404.1520(e), 404.1545, 416.920(e), and 416.945; SSR 96-8p)
Next, the Administrative Law Judge must determine at step four whether the claimant has the residual functional capacity to perform the requirements of the claimant’s past relevant work (20 CFR §§404.1520(f) and 416.920(f)). If the claimant has the residual functional capacity to do the claimant’s past relevant work, the claimant is not disabled. If the claimant is unable to do any past relevant work or does not have any past relevant work, the analysis proceeds to the fifth and last step.
At the last step of the sequential evaluation process (20 CRF §§404.1520(g) and 416.920(g), the Administrative Law Judge must determine whether the claimant is able to do any other work considering the claimant’s residual functional capacity, age, education and work experience. If the claimant is able to do other work, the claimant is not disabled. If the claimant is able to do other work and meets the duration requirement, the claimant is not disabled. Although the claimant generally continues to have the burden of proving disability at this step, a limited burden of going forward with the evidence shifts to the Social Security Administration. In order to support a finding that an individual is not disabled at this step, the Social Security Administration is responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that the claimant can do, given the residual functional capacity, age, education, and work experience (20 CFR §§404.1512(g), 404.156(c), 416.912(g), and 416.960(c)).
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ANALYSIS AND EVALUATION OF THE EVIDENCE
The Claimant was born on March 25, 1965 and is 45 years of age, has completed 12th grade in 1984. The claimant is literate in English and was 41 years of age at the time the present claim was filed and 39 years of age at AOD. The claimant has no Special Education or Training.
At the time of the preparation of the memo the claimant’s earnings history was unavailable.
To the best of the undersigned counsel’s knowledge at this time, the Claimant has not engaged in substantial gainful activity since the Claimant’s alleged onset date, the date upon which the Claimant stopped work due to Low back pain (B51F) (B53F-30) (B53F-32) (B53F-35) (MR from Jones Orto Surgeons Dr. Michaelson PDF P-3) (B11F-1) (B12F-2) (B13F-1) (B14F-4) (B17F-45) (B17F-43) (B31F-1) (B31F-35), sciatica (B19F-17) (B37F-5), degenerative disc disease (B45F-1) (B51F), L4-L5 annular disk tear in lumbar spine (B15F-24), lumbar radiculopathy (B23F-1) (B41F-3) (B45F-1) (B45F-5) (B45F-9) (B45F-20) (B45F-13) (B46F-4) (B46F-5) (B46F-8) (B53F-30) (B53F-35) (Medical Records from Dr. Patel, PDF P-11) (MR from Jones Orto Surgeons Dr. Michaelson (PDF P-11, P-3), lumbar disk herniation (B33F) (B45F-20), lumbar facet joint injury (B33F) (B57F-3), lumbar disc bulge and facet joint (B56F), neck pain (B12F-1) (B13F-1) (B17F-58) (B24F-1) (B31F-1) (B31F-35) (B46F-5, 4) (B51F) (B56F-108), shoulder pain (B17F-45) (B17F-43) (B32F-21) (B11F-1) (B17F-45) (B17F-43), cervical facet syndrome (B31F-35), cervical disc bulge (B56F), cervical radiculopathy (B46F-5, 4), cervical disc herniation (Medical Records from Dr. Patel PDF P-3, P-6), neuropraxia (B8F-2), occipital neuritis, cephalgia, myofascial pain, panic disorder without agoraphobia, depression and anxiety.
Treatment for Conditions Included: Claimant was prescribed Dilaudid for pain, Prilosec, Soma for pain and Xanax for pain and panic attacks.
The Claimant had 30-40% less pain after the injection treatments. Pain medication did not give him relief. Pain was burning, stabbing, shooting pain, bilaterally distributed. Pain increased with sneezing and coughing. The straight leg raised test in sitting was positive. He also had a restriction of activities.
Symptoms Summary: Claimant was primarily suffered from chronic pain in neck and back, which was constant. He was unable to bend or lift, feel nauseas and dizziness. He had motor vehicle accident.
Functional Limitations: The claimant had residual functional posture limitations as follows:
The claimant could walk only half a city block without rest or severe pain, and could sit 15 Minutes at one time before needing to get up. He could stand 1 Hour at one time before needing to sit down, walk around, etc., and the claimant could sit and stand/walk less than 2 hours total in an 8-hour working day (with normal breaks). The claimant would never be able to do activities like reaching and pushing and pulling.
To the best of counsel’s knowledge at the time of writing this memorandum, the Claimant has not received income subsequent to the alleged onset date.
The Claimant suffers primarily from the previously listed physical or mental impairments which are considered severe under Appendix 1 to subpart P or Part 404 of 20 CFR that consist primarily of conditions that are severe enough to interfere with the Claimant’s activities of daily life and preclude the Claimant from substantial gainful activity and/or full time employment or its equivalent.
It is believed that the evidence will show that the claimant cannot and could not perform sustained work activities in a competitive work environment and as a result thereof is disabled now and was disabled at the time of the date upon which the Claimant has alleged the Claimant was disabled.
The Claimant’s disabling condition(s) are/or evidenced by the treating medical physician’s assessment of the Claimant’s impairments and limitations will be found in the Exhibits within and discussed on the following pages infra, of this memorandum.
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LISTINGS
The undersigned counsel believes that the following Rule or Ruling may direct a finding of disabled.
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Medical listing: 1.04 Disorders of the spine.
The evidence that supports the proposed medical listing is:
1.04 Disorders of the spine (e.g., herniated nucleus pulpous, spinal archnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root or the spinal cord. With:
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A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss(atrophy with associated muscle weakness or muscle weakness)accompanied by sensory or reflex loss and if there is involvement of the lower back, positive straight-leg raising test (sitting and supine),
B. Spinal acrhonoiditis, confirmed by an operative note or pathology report of tissue biopsy or by appropriate medically acceptable imaging, manifested by severe burning or painful dysestheesia, resulting in the need for changes in position or posture more than once every 2 hours.
C. Lumbar spinal stenosis in pseudoclaudication, established on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.
Should a medically determinable impairment not be found by the Court to meet a listed impairment, the claimant’s impairment or combination of impairments may be considered the medical equivalent of a listed impairment, as they have the level of severity that meets or equals the criteria of the listings and result in a residual functional capacity that is so restrictive or reduced that such a residual functional capacity would not enable the claimant to engage in substantial gainful activity.
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CLAIMANT’S WORK BACKGROUND
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The Claimant completed the 12th grade.
The Claimant has past relevant work as follows: Claimant in the past has worked as a delivery driver in a furniture company, door installer, and also as a physical laborer.
The Claimant was last employed as a truck driver, which, as performed by the Claimant was probably semi-skilled work, done by the Claimant at the medium exertional level.
The Claimant’s skills are probably not transferable, and probably are not a material factor.
As of the date claimed by the Claimant as the onset of the Claimant’s disability, the Claimant was no longer able to perform the regular tasks of the Claimant’s previous occupation.
CLAIMANT’S MEDICAL TREATMENT
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The Claimant has received the following medical evaluations and/or treatment for the conditions underlying the Claimant’s disability and the following medical records and exhibits within the Medical or “F” Section of the Claimant’s claim file document that the Claimant has medically severe impairments.
Historical Issues (Pre-AOD) related to Substance abuse: (B26F-2) The Claimant took his first drink of alcohol at the age of sixteen and his last drink of alcohol in 1994. He admitted to experimenting with marijuana in high school, although he denied any other experience with illicit substances.
The claimant had been convicted of Filing a misdemeanor theft for which he had completed the terms of his sentence.
(B23F-1) The Claimant had quit drinking alcohol for eight years.
B5F
(B5F-3)Tri-county Hospital
Medical records of Dr. Casey Shah, DO dated March 30, 2003 stated that the claimant had distal radius fracture.
(B5F-7) Medical records stated that the claimant had fallen off from roof. He had right arm and wrist pain. He had injuries to shoulder, arm, and wrist. The severity of the pain rated as 10/10 on pain scale. In functional assessment claimant had tenderness and deformity of the upper extremities.
B8F
(B8F-4) Lorizon Health System
Medical records of March 16, 2004 stated that the claimant was status post motor vehicle accident with right thigh contusion, transient left ulnar nerve paraesthesia, soft tissue injury to the C-spine.
(B8F-2) Tri-County Hospital
Medical records of Dr. Roa Pesta, DO stated that the claimant was admitted on June 15, 2004 and was discharged on June 16, 2004.
The claimant was diagnosed with motor vehicle accident with positive loss of consciousness, Neuropraxia and contusion of the right leg.
B9F
(B9F-6) Medical records of June 28, 2004 stated that the claimant had motor vehicle accident on June 15, 2004 with chief complaints of stiff neck, bilateral leg cramps, right lower back pain, left leg numbness, tingling, short term memory loss, anxiety, insomnia secondary to pain, and decreased concentration.
(B9F-3) David Chevrolet Tri-County Hospital
MRI cervical spine without contrast performed by Dr. Rambo, DO on June 29, 2004 showed the diagnostic impression of minor signal alteration of degeneration was seen in the intervertebral disks at C3-C4 and C4-C5.
B10F
(B10F-1) Dr. Hemlata Eady, MD records dated July 22, 2004 state that the claimant had a history of motor cycle accident on June 15, 2004. He was given cortisone shots in neck & low back, but not much relief.
Claimant worked at a moving company, he moves heavy objects x 12 years.
The claimant was assessed with the diagnoses of cervical and thoracic region sprain/strain, Lumbosacral region sprain/strain and status post right wrist with very restricted range of motion, hyperlipidemia.
11F
(B11F-1) Medical records of Michael Kennedy, PT dated August 25, 2004 state that the claimant had diagnoses of low back pain, neck and shoulder pain. Claimant had neck, low back and shoulder pain, post MVA. Claimant reported riding his motorcycle on June 15, 2004 and collided with the front of his bike into a turning automobile causing him to be ejected straight upward and become air-born approximately 15 feet. He landed head first on the hood of the car and rolled off eventually settling on the ground.
The claimant was employed as a furniture truck driver and deliveryman and had been out of work since injury. He was unable to do any lifting and could not stand for long periods of time. He was very active up to the accident and did weight lifting and marshal arts on a regular basis to stay in shape for his job. He also complained of memory loss and difficulty writing and handling arithmetic since accident. There was increased thoracic kyphosis.
Claimant has positive valgus testing right knee with 2+ laxity. SLR also increased right lateral knee pain. He had positive cervical compression for increasing pain and positive distraction for reducing neck pain.
12F
(B12F-2) Bradley D. Greenhalo, MD’s medical records dated October 5, 2004 state that the claimant was involved in a motorcycle accident June 15, 2004. He had been unable to work since this injury. He had complaints of constant low back pain. He had difficulties bending, difficulties standing any length of time, lifting any type of objects without pain. He also had complained of chronic numbness on the left lower extremity from the knee down to the dorsal aspect of the foot which had been present since the injury; it was also associated with paraesthesia. He had been unable to tolerate any exercise at this point, but focusing on stretching soft tissue and mild active-release techniques. He was not making significant progress at this point.
(B12F-1) Dr. Greenhalo on December 21, 2004 assessed the claimant with neck pain, low back pain, and post MVA whiplash-type injuries. MRI had been consistent with an annular tear of L4-L5 disk.
B13F
(B13F-1) In a letter to Dr. David Reddy dated May 9, 2005, Dr. Mary A. Frankowski, MD states that the claimant had complaints of headaches, short term memory loss, neck and back pain, and seeing black spots.
On October 29, 2004 SPECT scan which showed slightly increased uptake in large joints consistent with arthritis.
On June 29, 2004 MRI of the cervical spine showed minor signal alteration of degeneration in the intervertebral discs at C3-4, C4-5.
On June 25, 2004 MRI of the lumbar spine revealed an annular rent with high intensity involving L4-5 disc.
The Claimant symptoms began following a motor vehicle accident on June 15, 2004. He had complaints of memory difficulties. He stated he was forgetful and had to make himself lists of what he needs to do. There had been no improvement since his injury.
He had complaints of visual obscurations which was described as seeing black spots if he had his eyes closed, less frequently if his eyes were open, “just traveling across his vision”. He had chronic lumbosacral myalgia. He was told he had a “tear” in the lumbosacral spine region. The Claimant had constant cervical myalgia, tight and squeezing in nature.
Claimant had tried Bextra with no improvement for the above symptoms. He had been tried on three antidepressants with no improvement.
The claimant was assessed with the diagnoses of cephalgia (headache), memory disturbance/retrograde amnesia-concern of residual CHI, Neck pain (cervicalgia), low back pain and dysesthesja (impairment of sense)-dorsum left foot.
B14F
(B14F-10) Sam Bergmont Hospital Corporation
On October 29, 2004 Bone scan with SPECT by Bill Carnegie, MD demonstrated slightly increased uptake in the large joints consistent with arthritis.
(B14F-4) Sam Bergmont Hospital Corporation
Harry Head, DO’s records dated December 2, 2004 reflect that the claimant had a history of having a motor vehicle accident in the summer of 2004. He did have, continued back pain since that point in time. He also had significant cervical spine pain as well. He had been using some medication without significant pain relief. Things that aggravated it included lifting and bending. With prolonged sitting he did note occasional left ankle and foot numbness. A bone scan demonstrated some generalized uptake indicative of arthritic conditions in the large joints. The claimant was diagnosed with low back pain which was thought to be secondary to L4-L5 annular tear.
B15F
(B15F-121) David Chevrolet Health Systems
X-ray of the right wrist by Dr. Joe Selloutnick and L. Silverberg, DO on March 30, 2003 indicated that the claimant suffered from an impacted fracture involving the distal radius extending into the articular surface. There was mild dorsal angulation of the distal fragments. There was marked soft tissue swelling in the region.
(B15F-92) Lorizon Health Systems Tri-County Hospital
On April 7, 2003 Dr. Able Slacker, DO performed an open reduction, internal fixation, left distal radius utilizing dorsal approach with dorsal plating and cancellous allografting. The pre and postoperative diagnoses was comminuted fracture, left distal radius, with severe comminution.
(B15F-24) David Chevrolet Tri-County Hospital
Dr. John England, DO on June 20, 2005 performed diskogram of L3-L4 as well as L4-L5 disk. The claimant’s pre and postoperative diagnosis was L4-L5 annular disk tear in the lumbar spine.
(B15F-47) David Chevrolet Tri-County Hospital
On July 28, 2004, Dr. Able Slacker, DO performed diagnostic arthroscopy of the right wrist, with a partial synovectomy. The claimant’s postoperative diagnoses were dorsal synovitis, right wrist, with possible tear of scapholunate ligament.
(B15F-14) Dr. John England, DO on August 23, 2005 performed Nucleoplasty.
The pre and postoperative diagnosis was again that of an annular tear of the L4-L5 disk.
B16F
(B16F-5) David Chevrolet Tri-County Hospital Corporation
Medical records of Dr. Englandt dated September 23, 2005 state that the claimant again had complaints of low back pain and had signs of spasm.
B17F
Incomplete Family Care
Dr. David Reddy, MD evaluated the claimant from August 11, 2004 through October 27, 2005 in a total of 11 visits.
(B17F-58) Medical records of Dr. Reddy dated August 11, 2004 state that the claimant has bad headaches, neck pain, upper beck pain, low back pain and left foot numbness. The claimant was also status post MVA, and had left foot paresthesia.
(B17F-45) Medical records of Dr. Reddy dated February 22, 2005 reflect that the claimant again had complaints of back and neck pain. His prominent and primary complaint was that of a low back pain. He stated that any activity such as lifting or bending forward increases his back pain. It did radiate up into the back and would tighten up. The claimant underwent an epidural block x1, which did not help. It actually increased his back pain symptoms. He did complain of some left foot paresthesias in the dorsum of the foot which had been present since the initial injury.
Claimant’s physical examination showed straight leg raises reproduce back pain as did hyperflexion and adduction of the hip, more pronounced on the right side with manipulation of the leg on the right than the left. Plantar reflexes were down pointing.
Dr. Reddy diagnosed the claimant with low back pain, neck and shoulder pain, thoracic or middle back pain, myofascial pain and history of right wrist fracture.
(B17F-4) Medical records of Dr. Reddy dated September 22, 2005 assessed the claimant with 724.2- Other and unspecified disorders of back, status post MVA. Pain was not improving.
(B17F-43) Batson D. Belfrie, DO
Medical records dated March 8, 2005 state that the claimant assessed the claimant with the diagnostic impressions of low back pain, history of neck and shoulder pain, thoracic pain and myofascial pain.
(B17F-36) Incomplete Family Care
In a letter to the State Welfare Board dated March 31, 2005, Dr. David Reddy, MD confirmed that he had been medically following the claimant and treating him for multiple injuries that had occurred after a motorcycle accident in June 2004. Specifically he had been treated for neck pain, low back pain and left foot paresthesias. Dr. Reddy stated that the claimant continued to have muscle spasms and pain throughout the neck and lower back. He had undergone extensive physical therapy, which was helping with his pain somewhat but he was approximately only 50% better in some areas. He reflected that the Claimant had undergone a functional assessment by physical therapist last showing that he could not sit for more than 1 hour without pain and numbness in his low back or stand more than 15 minutes without causing extreme low back pain. He was able to walk for a maximum of 15 minutes. He was not able to consistently lift more than 10 pounds at a time without causing severe pain. His ability to carry objects or kneel was really limited by pain still at that point. The claimant could not perform repetitive motions more than 15 times per hour could not be tolerated at that time. The recommendation of the physical therapist to which Dr. Reddy was apparently acceding was that the claimant was not at that time capable of performing any physical activities that involve any positions except sitting at that current time and sitting was limited only for short periods of time.
(B17F-12) Family Care
In a letter from Dr. (illegible) to The State Food Stamp Division dated June 30, 2005 that physician stated that the claimant had been following under his care for multiple injuries that occurred after a motorcycle accident in June 2004, specifically he had been treating for neck pain, low back pain as well as subjective loss. His neck pain was quite a bit improved. He had been seeing a neurologist for the memory loss. His low back pain continued to be moderate to severe at times and he was having difficulty with prolonged standing or lifting. He had been seen and evaluated by a spinal surgeon and was going back for reevaluation at the end of the July with the intent of a probable surgical procedure.
18F
(B18F-10, 8) Medical records of Dr. Able Slacker, DO dated June 18, 2004 and October 19, 2004 state that the claimant continued to complain of pain within the right wrist, especially along the dorsal radial column of the wrist. He had mostly soreness at the distal radial ulnar joint.
(B18F-4) Medical records of Dr. John England, DO dated May 31, 2005 stated that the claimant was evaluated for persisting low back pain. He had been under the care at rehab for a while and it had not helped. He did try another form of therapy, which was not useful. X-rays and MM showed a persistent foraminal disc protrusion with an HIZ and that this was a result of the claimant’s motorcycle accident of June 15, 2004.
(B18F-3) Medical records of Dr. England dated July 19, 2005 stated that the claimant had persisting pain both in his neck and his back. He had very little radiculopathy but persisting back pain, which inhibited all of his activities. He could not sit, drive or ride for long, which was years since his initial injury on his motorcycle accident. He was working with Independent physiotherapy and they had done various modalities, which actually relieve the pain for a short period of lime but only for a short period of time.
(B18F-2) Medical records of September 20, 2005, Dr. England stated that the claimant had backache. It was more severe in the mid back over the thoracic spine and in the lumbar spine. He underwent an uneventful nucleotomy for discogenic disease at L4-5 proven by positive discography and MRI. In the postoperative period, he had noticed some increased discomfort. He noted they did not help him, made him worse; in fact, he talked about headache from this which was seemed to resolve
B19F
(B19F-17) David Chevrolet Tri-County Hospital
MRI lumbar spine without contrast by Dr. Joe Selloutnick and L. Silverberg, DO on August 25, 2004 showed annular rent with high intensity zone involving the L4-5 disk could be productive of all the symptoms of sciatica without the mechanical size of any significant disk protrusion.
(B19F-16) Tri-County Orthopedic Surgeons, PA
In a letter To Whom It May Concern dated September 7, 2004, Dr. Able Slacker mentioned that the claimant had been a patient in his practice recovering from multiple injuries due to an accident in March of 2003.
In the course of his treatment, claimant had undergone three surgeries, most recently dated July 28, 2004, and each required a lengthy recovery, pain management through use of medication and post operative therapy.
Claimant’s recovery was prolonged and totally disabling (presumably from a medical standpoint) at that time, and that when the claimant had recovered sufficiently he might then consider returning to work with limited use of his right arm subsequent to his return to the doctor’s office for reevaluation on October 8, 2004.
B20F
(B20F-2) St. Joe Health System
Medical records of Dr. Michaelson dated January 16, 2006 diagnosed the claimant with lumbar radiculopathy with discogenic pain and cervical strain with chronic neck injury.
(B23F)
(B23F-1) Nurture Neurosurgery
Medical records of Dr. White dated March 8, 2006 state that the claimant had complaints of severe pain to the right side of the lower back.
The Claimant had a motorcycle accident on June 15, 2004, which was the date of onset of the pain. He never had back pain until the accident. He had not worked since the motorcycle accident.
MRI of the lumbar spine from January 5, 2006 showed disk degeneration at L4-5 with mild lumbar stenosis and adequate alignment.
There was some mild degeneration at L4-5 and mild stenosis.
The claimant was diagnosed with lumbar radiculopathy.
(B24F)
Dr. Selloutnick evaluated the claimant from April 6, 2006 through March 16, 2006 a total of 3 visits.
(B24F-1) Medical records of Dr. Selloutnick dated April 6, 2006 state that the claimant was having a lot of acute consistent neck pain and lower back pain present throughout the day. He was having a lot of spasms and headaches as well. Physical examination revealed tenderness in thoracic region, decreased range of motion of the cervical spine with tenderness of movement, and decreased range of motion of lumbar with tenderness of movement.
The assessments were disc bulge L4-L5, and acute cervical strain.
(B24F-8) Medical records of Dr. Selloutnick dated March 16, 2006 state that the claimant was having a lot of chronic consistent lower back pain present throughout the day with movement.
(B26F)
(B26F-2) Medical records of Dr. Crankcase dated October 18, 2006 state that the Claimant was applying for disability benefits due to a June 15, 2004 motorcycle accident in which he injured his back. He had undergone surgery on his lumbar spine, but continued to complaint of chronic pain.
The Claimant had significant medical history of back injury and subsequent back surgery as well as a 2003 work-related accident in which he broke bones in his right wrist. The claimant was also diagnosed with panic disorder without agoraphobia.
B28F
(B28F-2) Physical Assessment of Ability to Do Work Related Activities
Dr. Narcoscripter, MD’s records dated January 18, 2007 state that the lifting and carrying were affected by claimant’s impairments. The claimant would never be able to lift more than 10 pounds and would only occasionally be able to carry up to 10 pounds and never be able to carry 20 to 50 pounds. It was further stated that sitting, standing or walking were affected by the claimant’s impairments and that he could sit and stand 1 hour and walk half an hour in a 8 hours workday and could sit, stand and walk for only 15 minutes at one time without interruption.
The claimant would only occasionally be able to use his right hand for simple grasping and fine manipulation. It was also opined that the claimant would only occasionally be able to stoop and never be able to climb, crouch, kneel, and crawl. Additionally, it was opined that the claimant would only occasionally be able to perform activities involving reaching and handling and never be able to perform activities involving pushing/pulling.
In making performance adjustment, It was believed by the reporting physician that the claimant had poor ability to understand, remember and carry out complex or detailed job instructions.
With regard to making personal/social adjustment, claimant was believed to have only a fair ability to relate predictably in social situations and had poor ability to demonstrate reliability.
In term of other work related mental limitations, the above physician described that the medical/clinical finding that support the assessment as claimant was (presumably from a medically stand point) permanently disabled due to back and neck problems. Additionally, Dr. Narcoscripter further opined that the earliest date this mental assessment accurately described the claimant’s work related limitations would be April 12, 2006.
(B28F-5) Disorder of spine:
Dr. Narcoscripter’s records dated January 18, 2007 reflected that the claimant had suffered from a herniated nucleus pulposus, spinal stenosis, osteoarthritis, and facet arthritis.
The doctor further opined that there was evidence of limitation of motion of the spine, motor loss (atrophy with associated muscle weakness), sensory or reflex loss, and involvement of the lower back and was evidence of spinal arachnoid that was confirmed by severe burning and painful dysesthesia resulting in the need for changes in position or posture more than once every 2 hours.
There was also further evidence of lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging and resulting in inability to ambulate effectively.
B31F
Spine & Pain Treatment Center
Dr. Narcoscripter, evaluated the claimant from April 12, 2006 through August 8, 2007 for a total of 13 visits.
(B31F-35) Medical records of Dr. Narcoscripter dated April 12, 2006 stated that the claimant had low back pain. The severity of condition was 9 on a scale of 1-10 with 10 being the worst even with medications. The Claimant had had a motor vehicle accident on June 15, 2004 that had resulted in multiple pain complaints from a disk herniation and resultant back surgery. The Injury was located in right lower back, right mid back, left lower back and left mid back diffusely. The frequency and the quality of the pain were found to be constant, daily, with aching, sharp, shooting and throbbing. The Claimant also had neck pain and stiffness associated with headaches and indicated the problem location was left occipital scalp, right upper back, left upper back, posterior neck and right occipital scalp diffusely. The claimant’s activities of daily living and active range of motion made symptoms worse.
On musculoskeletal examination, thoracic and lumbar active range of motion testing revealed decreased extension, decreased lateral flexion, decreased flexion. Palpatory examination revealed lumbar facets that were tender to palpation bilaterally L3-4, L4-5 and L5-S1, moderate quadratus lumborum spasm, lumbar paraspinal muscle spasm and tenderness in the right and left sacroiliac joint(s).
The doctor’s impressions of the claimant were neck pain, cervical facet syndrome, cervical myofascial pain syndrome, occipital neuritis, low back pain, lumbar facet syndrome, and lumbosacral myofascial pain syndrome, status post percutaneous diskectomy, and lumbar IVD without myelopathy.
(B31F-1) Medical records of Dr. Narcoscripter dated August 8, 2007 stated that the doctor’s impression of the claimant’s condition was that it was chronic with chronic neck pain, cervical IVD without myelopathy, chronic low back pain, lumbar IVD without myelopathy, and the claimant’s status was post percutaneous discectomy.
B32F
(B32F-20) St. Joe’s Hospital
G. Massai, M.D. had performed an MRI of the lumbar spine dated January 5, 2006 on the claimant which he read as showing a disc bulge at L4-L5.
(B32F-21) St. Joe’s Hospital
Claimant underwent an MRI of the right shoulder dated January 5, 2006 Dr. Massai read the MRI as a mild AC joint spurring.
B35F
(B35F-1) David Chevrolet Tri-County Hospital
John J. Rambo, DO had performed and reviewed an MRI of the cervical spine on June 29, 2004 as the claimant was suffering from cervical radiculitis, disk herniation, pain extending from shoulder, neck region down to the hand, and pain in the right lower extremity. The opinion of the physician was that the claimant’s MRI showed minor signal alterations of degeneration that were seen in the intervertebral disks at C3-C4 and C4-C5.
B37F
(B37F-5) David Chevrolet Tri-County Hospital
A MRI lumbar spine performed on August 25, 2004 and read by Dr. Rambo, DO showed annular rent with high intensity zone involving the L4-5 disk could be productive of all the symptoms of sciatica without mechanical size of any significant disk protrusion.
B40F
(B40F-3) Medical records of Sami Holiday, MD dated January 31, 2008 state that the claimant had a history of a motorcycle accident with severe back pain and complicated surgery on his back chronically on numerous pain medications. He had bleeding per rectum associated with bulging on his hemorrhoids. He had experienced pain and on numerous medication unresponsive to several tactics for pain management. The claimant was also assessed with chronic constipation unresponsive to regular dose of MiraLax with possible neurogenic deficits due to his complicated back surgery.
B41F
(B41F-1) St. Joe’s Hospital
On November 12, 2008, the claimant had been diagnosed with severe discogenic pain, L4-L5. As a consequence, Dr. Sami Holiday, performed anterior radical discectomy, L4-L5 and anterior lumbar interbody fusion L4-L5 with SynFix cage, screw and instrumentation using Synthes Spine company cage, screw and instrumentation.
(B41F-3) The medical records of Dr. Sami Holiday, dated November 12, 2008 reiterated that the claimant was involved in a serious auto accident on June 15, 2004, had since suffered from serious lower hack pain. He had been studied fully for MRI and all were indicative for lumbar radiculopathy with severe discogenic pain of L4-5.
It was opined that he Claimant required having an anterior lumbar interbody fusion was necessary. A thorough evaluation and consultation was done by Dr. Michaelson who did opine that there would be no guarantee at this point, with any surgeries since the injury happened four years ago and that the damage could be permanent. Informed consent was given to the claimant by Dr. Michaelson who confirmed the reasonableness and medical necessity of the anterior lumbar anterior body fusion of L4-5.
B44F
(B44F-1) Medical records of Dr. Selloutnick, dated March 16, 2006 state that the claimant had been involved in a slip and fall on June 15, 2004 which caused him to suffer injury to the neck and lower back further aggravating those he had suffered from the claimant’s earlier motorcycle accident from which he also had chronic neck pain. The claimant was assessed with disc bulge L4-L5 and acute cervical strain.
B45F
Pain Clinic of Ohio
Pramod Patel, MD evaluated the claimant from December 10, 2007 through September 17, 2008, in a total of 5 visits.
(B45F-1) Medical records of Dr. Patel dated December 10, 2007 state that the claimant had a chronic intractable pain. He was seen for chronic intractable pain for over 3 years. Pain started as very severe intensity and continued as moderate intensity. It was constant pain with activities and ambulation.
The Claimant reported he had had a motor cycle injury on July 15, 2004; he was driving a motor cycle and was involved in a head on collision with another car. Claimant was thrown into the air 15 feet and landed on his back and feet. He subsequently had had complaints of pain in the lower back which radiated to the knee and thigh. Claimant also had had complaints of pain in the neck which radiated laterally.
Dr. Patel’s records of this date further reflect that the Claimant had tried physical therapy for 1 ½ years which did not help. He had had numbness and tingling in dermatome L4/L5. Facet pain had been localized over L3 to L5 facet joint. The Claimant’s pain was increased on walking, standing, sitting and bending. Facet pain was increased on extension, lateral rotation and deep pressure. Claimant’s indoor and outdoor activities had been restricted because of the pain. He complained of loss of sleep, loss of energy and lack of interest.
On skeletal examination, facet pain was bilateral and spread in dermatome L3-L5. Pain was referred to the gluteal area, posterior thigh, knee and calf. Examination of the straight leg test was positive on both sides.
The claimant was diagnosed with lumbar radiculopathy, facet joint disease, facet joint hypertrophy, degenerative disc disease, bulge disc, and disc herniation.
(B45F-5) Medical records of Dr. Patel dated May 22, 2008 show that the claimant continued to have severe intractable pain more localized in lumbar dermatomes as well as cervical dermatomes. Lumbar pain was reported as radiating into L3/L4/L5 dermatomes, cervical pain was mostly localized at C5/C6/C7.
The Claimant also had severe pain and pain was induced by activities.
On examination, claimant had muscle spasm mostly localized in lumbar dermatomes along L3/L4/L5 and pain was severe on ambulation.
The doctor had given the diagnostic impressions of cervical/lumbar radiculopathy, cervical/lumbar facet joint disease and cervical/lumbar whiplash injuries to disc and facet joint.
(B45F-20) Medical records of Dr. Patel stated that the claimant was diagnosed with facet joint disease, disk herniation, disk bulge, lumbar disk herniation, disk bulge, facet joint disease at level C 5, 6 and 7, and L 3, 4 and 5, cervical radiculopathy and lumbar radiculopathy.
B46F
(B46F-10) St. Joe’s Hospital
Martin Michaelson, MD on June 28, 2006 performed MRI of the thoracic spine, showed diagnostic impressions of moderate compression fracture at T6 relatively acute and mild deformity to the inferior endplate of T5, which probably also was acute, coexistent disk protrusion centrally and to the right at T6-7, which appeared to be moderately effecting the anterior cord.
(B46F-6) St. Joe Health System
Y. Berra, Jr. M.D. had performed an MRI of the claimant’s lumbar spine on June 17, 2008. According to Dr. Berra, the MRI showed that the claimant had a bulging disc at L4-L5.
St. Joe Health System
(B46F-8) In a letter to Dr. Reddy dated June 2, 2008, Dr. Michaelson mentioned that the claimant had back pain with radiculopathy. The Claimant had suffered from this condition for two years subsequent to an L4-5 injury with nucleoplasty that was done without relief. In fact the claimant had gotten worse and had been hurting ever since. The claimant reported that he had undergone non-operative treatments over at Florida and was not better; in fact he was probably worse.
The claimant was again diagnosed with lumbar radiculopathy and lumbar discogenic pain.
(B46F-5, 4) Medical records of Dr. Michaelson dated June 24, 2008 and August 8, 2008 state that the claimant had been having a great deal of pain. He had a L4-5 disc injury and an MRI of the cervical spine that shown neck pain and radiculopathy.
The MRI of the claimant’s lumbar spine showed discogenic changes with bulging and desiccation at L4-5. The MRI of the cervical spine further showed some bulging at C3-4, perhaps at C4-5. Dr. Michaelson assessed the claimant again with lumbar radiculopathy with discogenic pain and cervical radiculopathy.
It was further opined that the claimant was still hurting and the damage due to accident occurred in 2004 might be permanent.
Dr. Michaelson further lamented that the claimant had been through so much so far and all he had received was temporary relief from the injections.
B51F
Medical Solutions Center
In a letter to Mr. Billmore dated March 17, 2008, Dr. Masculineo state that the claimant had back and neck pain related to a motor vehicle accident that had occurred on June 15, 2004. At the time of the accident the claimant had worked for All Star Trucking as a driver and furniture mover which entailed heavy lifting, bending, stooping etc. He had not returned back to work since the accident of June 15, 2004 due to complaints of chronic right low back pain with some neck pain reported to be 9/10. An MRI was consistent with an annular tear of L4-L5 disc was noted. A diagnosis of whiplash-type injuries was also made. The patient’s physical examination reflected complaints of pain primarily near the lumbosacral junction as well as the cervical thoracic region. Lumbar motion proved to be limited as it related to extension and flexion by approximately 50% in all spheres.
The Claimant’s diagnoses were cervical and lumbar myofascial strain and status post lumbar nucleoplasty at L4-L5.
B53F
(B53F-6) St. Joe’s Hospital
On November 12, 2008, the claimant was diagnosed with lumbar radiculopathy with discogenic pain. On that date, Dr. Martin Michaelson, performed an anterior lumbar fusion L4-L5 and anterior lumbar instrumentation L4-L5 on the claimant.
(B53F-30) St. Joe’s Hospital
Dr. Snickers’s records of November 13, 2008 stated that the claimant had a history of chronic back pain since 2004, after his motorcycle accident and had been admitted to the hospital and had undergone an anterior lumbar fusion and instrumentation, L4-L5 levels on November 12, 2008.
The claimant was again assessed with lumbar radiculopathy, status post lumbar fusion and instrumentation, L4-L5, chronic low back pain, history of motorcycle accident, GERD and history of anxiety, depression and right wrist surgery.
(B53F-32) St. Joe’s Hospital
Medical records of Dr. Paul dated November 13, 2008 state that the claimant had low back pain. The Claimant was admitted on November 12, 2008 for an elective anterior radical discectomy at L4-L5 and anterior lumbar interbody fusion at L4-L5. Prior to his surgery, his pain had progressively gotten worse over time. The claimant’s physical examination revealed that the claimant had lumbar paraspinal tenderness.
The claimant was again diagnosed with chronic low back pain status post fall, and most recently status post anterior lumbar fusion.
(B53F-35) St. Joe’s Hospital
Medical records of Dr. Marion dated November 12, 2008 again confirm that the claimant had suffered chronic low back pain with lumbar radiculopathy. The Claimant’s medical history again reflected his motor-vehicle accident five years prior and many treatments done to his back with poor response that had resulted electively in his most recent admission for an anterior decompression and diskectomy. The Claimant was again assessed by Dr. Marion with degenerative joint disease with lumbar radiculopathy with discopathy L4 and L5 was status post anterior lumbar fusion with discotomy, anxiety and chronic constipation.
(B54F) St. Joe Health System
Medical records of Dr. Michaelson dated December 4, 2008 state that the claimant had an L4-5 injury which occurred on June 15, 2004. He had undergone a percutaneous procedure with some complications.
Doctor Michaelson concluded that claimant had undergone full compliment of non-operative modalities and the non-operative treatment had failed the claimant. His only abnormality was L4-5 disc and felt he desired a chance at surgical procedure.
MRI performed on June 20, 2008 revealed L4-L5 discogenic changes with disc displacement and desiccation. Dr. Schwarzenegger, the radiologist who read the MRI referred to this as an abnormal discogram at L4-5 with some displacement as a result of the earlier injury, however; Dr. Schwarzenegger believed the claimant’s condition was more a loss of the internal architecture than normal nuclear structure which was resulting in his back pain and radiculopathy symptoms as well.
Dr. Schwarzenegger felt that the claimant’s L4-5 injury was secondary to preexistent degenerative process and that the claimant’s condition was consistent with this posttraumatic finding.
Since the claimant had been treated for his low back injury since the time of the injury, Dr. Schwarzenegger further opined that the claimant was a candidate for the anterior lumbar fusion and understood that these many years after this injury and because of damage had been done he did not expect a full recovery.
(B55F) St. Joe Health System
In a letter The Ohio Department of Families and Children dated January 12, 2009, Dr. Michaelson wrote that the claimant had suffered from an L4-L5 injury which occurred on June 15, 2004 and had undergone a percutaneous disc procedure with some complications. The claimant had been treating with pain management and still having severe symptoms. The claimant’s abnormality was at the L4-L5 disc and he had failed nonoperative treatments after exhausting a full complement of options.
MRI films of June 20, 2008 showed L4-L5 discogenic changes with displacement and abnormal nuclear architecture. There was some disc displacement with a loss of internal architecture and normal nuclear structure of the disc which correlated to medical symptoms well.
Contrary to Dr. Jacob’s earlier opinion that the claimant had reached maximum medical improvement, Dr. Michaelson felt that the Claimant had not yet reached maximum medical improvement and that MMI would most likely come only after some 12 to 15 months after Mr. Zakonni’s anterior lumbar fusion procedure.
Dr. Schwarznegger felt that the claimant’s L4-L5 injury was secondary to preexistent degenerative process and his L4-L5 abnormal disc and was more consistent with a posttraumatic finding.
Dr. Michaelson further opined that the claimant was a candidate for the anterior lumbar fusion. He had suffered for many years and understood that because of that he would not expect a full recovery.
B56F
(B56F-108) Complete Rehab
In a letter to Dr. England dated September 20, 2005, J. Cornball, PT mentioned that the claimant had continued complaints of neck pain, upper middle and lower back. Not surprisingly, the Claimant’s assessments were displayed 100% of the fascial dysfunction in the regions of the torso; 60% of the joint, biomechanical, and neuromuscular dysfunction in the regions of the spine, back and pelvis.
Medical Records from Dr. Patel, PDF
(P-3) Dr. Rakesh Sheeba’s records stated that on examination, claimant had paravertebral muscle spasm in the neck over C5 to T1 which was not responding to medication. The straight leg raised test in sitting was again positive and straight leg raised test in supine was painful as well. Pain was more severe compared to sitting position. Severe spasms were noted in C3-C7 paraspinal muscles. L5 and S1 coordination was abnormal in upper extremity and activities were restricted in those areas.
Dr. Patel also had the diagnostic impression that the claimant suffered from a cervical disc herniation, disc bulge, facet joint disease, Level- C5, 6 and 7, lumbar disc herniation, disc bulge, facet joint hypertrophy, level L3-4 and 5, AL 3, 4 and 5.
(P-11) Dr. Sheeba’s records state that claimant had numbness and tingling present in fingers, toes, feet; ankle, lower 1/3 leg and symptoms were bilateral. Numbness over the feet was laterally distributed.
Dr. Sheeba again gave the claimant the diagnoses of cervical and lumbar radiculopathy, facet joint disease, disc herniation, disc bulge, level L2-L5 and C4-T1, level C5-7 and L2-S1 that were bilaterally distributed.
The claimant was advised not to lift more than 10 lbs, not to bend or twist lower back and upper back, not to climb, not to crawl or squat and not to reach above shoulder. Prognosis was guarded.
(P-6) Dr. Pramod Patel’s records again reflect that claimant had chronic intractable pain in the cervical dermatome. He had developed the cervical pain following an automobile accident. The Claimant had 30-40% less pain after the injection treatments but pain medication did not give him relief. His pain was reported to be burning, stabbing, shooting pain, bilaterally distributed. The straight leg raised test in sitting was positive and activities restricted.
The claimant’s diagnosis was cervical disc herniation, disc bulge, facet joint disease, facet joint hypertrophy, ligamentum flavum hypertrophy, failed back syndrome lumbar disc herniation, radiculopathy L3, L4 and 5. Prognosis was deteriorated.
(P-15) Straight leg raised test in sitting was positive. Pain was elicited with 20 degree elevation. Axial compression and external neck rotation was painful. Numbness and tingling was present in fingers, toes, feet, ankle and lower 1/3 leg.
St. Joe’s Orto Surgeons Dr. Michaelson, PDF
St. Joe’s Orthopedic Surgeons
(P-11) Martin B. Michaelson, M.D.’s records reflect that he had seen the claimant from January 30, 2009 through April 26, 2010 for a total of 5 visits.
Dr. Michaelson in a letter to Dr. England dated April 20, 2009 wrote that claimant had continued lumbar radiculopathy with discogenic pain and wound dehiscence.
(P-9) On June 5, 2009 claimant had improvement with his back but lot of residual pain did persist. He had this pain for 5 years and the worst pain persisted in the night.
(P-3) On October 12, 2010, Dr. Michaelson’s records state that claimant still had ongoing low back pain and was still hurting. The claimant still had incisional issues with his abdomen. He had the impression of lumbar radiculopathy with discogenic pain.
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THE CLAIMANT’S PHYSICAL RESIDUAL FUNCTIONAL CAPACITY (PHYSICAL, POSTURAL AND EXERTIONAL LIMITATIONS)
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The record shows that the claimant has the following Residual Functional Capacity.
In Exhibit B33F, a Residual Physical Functional Capacity Questionnaire dated August 29, 2008 and completed by Dr. Pramod Patel, the Claimant’s treating physician, confirmed that the Claimant has the following conditions or restrictions and resultant residual physical capacity. According to the reporting physician since his Initial consultation was on December 10, 2007.
As per the above referenced exhibit, the claimant’s diagnoses were lumbar disk herniation and lumbar facet joint injury and that the Claimant’s prognosis had had no change and the Claimant’s symptoms, still included pain, dizziness, fatigue, chronic pain, muscle spasm, numbness in lower leg, and an occasional weakness in lower leg and constant pain in lower back radiating to both lower legs. This was based on clinical findings and objective signs which included not only clinical examinations but multiple MRIs and EMG studies.
The doctor described the treatment and response including any side effects of medication that may have implications for working, e.g., drowsiness, dizziness, nausea, etc., as oral pain medications, muscle relaxants, physical therapy if indicated, epidural injections for radicular pain, facet joint injections for facet joint pain.
It was further opined that the Claimant’s impairments either lasted or could be expected to last at least twelve months and that the Claimant was not a malingerer and that anxiety was a psychological condition that affected the claimant’s physical condition.
The reporting physician further opined that the claimant’s impairments (physical impairments plus any emotional impairments) were reasonably consistent with the symptoms and functional limitations described in this evaluation and further opined that during a typical workday the claimant’s experience of pain or other symptoms would be Constantly severe enough to interfere with attention and concentration needed to perform even simple work tasks. (In the contents of the opinion, “constantly” was described to mean more than 66% of an 8-hour working day.)
With reference to the claimant’s capability to endure stress, in the responding physician’s opinion the Claimant was incapable of even "low stress" jobs. The responding physician further opined that if the Claimant were placed in a competitive work situation, the Claimant’s functional limitations would be that:
The claimant could walk only half a city block without rest or severe pain, and could sit 15 Minutes at one time before needing to get up. The claimant could stand 1 Hour at one time before needing to sit down, walk around, etc., and the claimant could sit and stand/walk less than 2 hours total in an 8-hour working day (with normal breaks). The doctor further indicated that the claimant would need to include periods of walking around during an 8-hour working day and that this would happen at a frequency of 20 minutes and that the claimant (on average) would have to walk for 5 minutes before returning to work.
Dr. Patel further opined that the claimant would need a job that permitted shifting positions at will from sitting, standing or walking and would sometimes need to take unscheduled breaks during an 8-hour working day, and that this would happen at a frequency of an hour. The reporting physician also opined that the duration of time that the claimant (on average) would have to rest would be 5 to 10 minutes before returning to work. Dr. Patel also opined that with prolonged sitting, the claimant's legs needed to be elevated, and as to how high should the leg(s) be elevated, the doctor stated that the legs would have to be elevated to a level of bed level for 5 to 10 minutes each hour of an 8 hour work day.
The reporting physician opined that while engaging in occasional standing/walking, the claimant would have to use a cane or other assistive device.
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LIFTING RESTRICTIONS
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Dr. Michaelson, the reporting physician further opined that the claimant could frequently lift and carry less than 10 lbs, occasionally lift and carry 10 lbs and never lift and carry above 20lbs and above in a competitive work situation.
The reporting physician opined that the claimant could further: occasionally, look down (sustained flexion of neck; turn head right or left; look up; and occasionally hold his head in static position.
Dr. Michaelson additionally opined that the claimant would rarely be able to performed twist; never be able to performed stoop (bend); be able to performed crouch/squat; be able to performed climb ladders; and never be able to performed climb stairs.
The above referenced doctor also concluded that the claimant would have significant limitations with reaching, handling or fingering.
The claimant could never reach, push/pull, occasionally handle and frequently feel, hear and speak.
The reporting physician also opined that the claimant’s impairments were likely to produce “good days” and “bad days” and estimated, on the average, that the Claimant would likely be absent from work as a result of the impairments or treatment: More than four days per month. The claimant’s number of absences due to the impairment and treatment is not therefore within standard industrial tolerances, which on the average has been traditionally once but fewer than twice per month.
The reporting physician also described other limitations that would affect the Claimant's ability to work at a regular job on a sustained basis as that the claimant should avoid all exposure in heights, moving machinery, vibrations, noise, solvent/cleaners, dust, smoke, fumes, odors, chemicals, wetness, dryness, temperature extremes, high humidity, soldering fluxes and cigarette smoke.
Additionally, the above referenced physician further opined that the earliest date that the description of symptoms and limitations in the completed questionnaire would apply was initial date of treatment was January 16, 2006 and he was (presumably from a medical standpoint) permanently disabled. And that the claimant has been unable to maintain or undergo adequate continuing medical care and adequate treatment due to lack of funds sufficient for said medical care
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ARGUMENT
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The claimant is 45 years old.
Based on the following evidence of record, the claimant either meets or equals a Medical listing: 1.04 Disorders of the spine (e.g., herniated nucleus pulpous, spinal archnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root or the spinal cord. With: A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss(atrophy with associated muscle weakness or muscle weakness)accompanied by sensory or reflex loss and if there is involvement of the lower back, positive straight-leg raising test(sitting and supine),
AND B. Spinal acrhonoiditis, confirmed by an operative note or pathology report of tissue biopsy or by appropriate medically acceptable imaging, manifested by severe burning or painful dysestheesia, resulting in the need for changes in position or posture more than once every 2 hours.
AND C. Lumbar spinal stenosis in pseudoclaudication, established on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.
The evidence that further supports the proposed medical listing is: found in abundance throughout the claimant’s medical file and especially in Exhibit (B28F-5)
The claimant has a background that is probably unskilled and at best arguably Semi-skilled performed at both the medium and heavy duty levels.
The claimant has not acquired job skills that transfer to other occupations within the RFC defined above (20 CFR 404.1568).
According to treating sources, notably Dr. Michaelson and Pramod Patel, MD, the claimant’s treating physicians, the claimant could never lift and carry 50 lbs, rarely lift and carry 20 lbs and occasionally could lift and carry 10 lbs in a competitive work situation, can sit about 2 hours for total of an 8 hour working day and could only stand and walk less than 2 hours for a total of 8 hour working day.
It was further opined that the Claimant should avoid all exposure to heights, moving machinery, solvent and cleaners, dust, fumes, odors and smoke, chemicals, temperature extremes, high humidity, soldering fluxes and cigarette smoke. He should avoid concentrated exposure to vibrations and noise and should avoid even moderate exposure to perfumes, chemicals, wetness and dryness.
This residual physical functional capacity is essentially less than a full range of sedentary work. The claimant’s absences due to a need for medical care, treatment or symptoms would be expected to be about 3 days per month, regular industry tolerances generally being considered to be less than two per month.
The claimant’s physical and mental disability as reflected in the records and opinions of the sources set forth above precludes all full-time work and substantial gainful activity.
Should the court find that the claimant does not meet or exceed a listed impairment, as described herein or otherwise, the Court should proceed through the final steps of the sequential evaluation process in 404.1520 and 416.920 and find that, although the claimant has impairments which are considered to be “severe” and although they are not attended, singly or in combination, with specific clinical signs and diagnostic findings required to meet or equal the requirements set forth in the Listing of Impairments (Appendix 1 to subpart P., 20 CFR Part 404, Listing of Impairments), the Claimant should still be found to be disabled due to the Claimant’s lack of both mental and physical abilities to perform sustained work activities in an ordinary work setting on a regular and continuing basis of 8 hours per day for 5 days per week or an equivalent work schedule (Social Security Ruling 96-8p).
The claimant has severe listed impairments as set forth above. (20 CFR 404.1520(c) and 416.920(c)) and is unable to perform past relevant work (20 CFR 404.1565).
The claimant has the remaining residual functional capacity to do work that should be categorized as: Less than a full range of sedentary and light work.
After careful consideration of the entire record the claimant’s residual functional capacity reflects that the claimant is unable to perform regular and sustained work activity in a competitive work environment at any exertional level.
After careful consideration of the entire record, the Claimant has the residual functional capacity to perform only a significantly reduced range of sedentary work activities and is generally unable to sustain/maintain an eight-hour workday, forty-hour workweek or its equivalent on a regular and consistent basis.
Even arguably if the Claimant did retain the ability to perform a full range of sedentary/light duty work, the claimant’s additional limitations narrow the range of work the claimant might otherwise perform that a finding of “disabled” is appropriate.
Based on the Claimant’s age and medical restrictions reasonably imposed by the Claiimant’s treating sources, the Claimant’s ability to engage in sedentary and light duty work is so substantially reduced by the Claimant’s additional exertional and non-exertional limitations established by the record, that a finding of disabled is warranted.
Should the court find that no Medical-Vocational Rule applies to the Claimant or that the Claimant does not meet a Listing, none of the rules in Appendix 1 appear to be applicable to this particular set of facts, because the individual cannot perform the full range of work defined as sedentary.
In light of the adverse factors which further narrow the range of sedentary work for which the claimant would otherwise be qualified and his inability to work a full 40 hour work week, eight hours per day or its equivalent, a finding of disability is required. The Claimant meets disability insured status requirements of the Social Security Act as set forth in Section 216(I) of the Social Security act through the onset date alleged and the final hearing.
The Claimant’s pain, medications and psychological condition(s) affect the Claimant’s concentration and memory to a significant degree and also interfere with the Claimant’s ability to engage in substantial gainful activity and affect the Claimant’s activities of daily life.
The Claimant’s complaints of pain and restriction comport with the objective findings, medical evidence and treatment notes and should, as a consequence thereof, be found to be credible. The Claimant’s testimony is anticipated to be supported by objective medical evidence of a condition that can reasonably be expected to produce those symptoms of which the Claimant complains and, thereby, is sufficient to sustain a finding of disability. Johns v. Bowen, 821 F.2d 551,554 (11th Cir.1987). See 42 U.S.C. sect. 423(d)(5)(A).
In conclusion, based on the elements of record and the claimant’s statements of record and in light of the objectively documented physical and medical findings within the record as set forth above and the rationale discussed herein, the Claimant does not have the residual functional capacity to perform even a significantly reduced range of sedentary work activities and is generally unable to sustain or maintain an eight hour workday or a forty hour work week or its equivalent on a regular and consistent basis.
Based on the claimant’s age, education, transferable job skills or lack thereof and based on the claimant’s physical residual functional capacity and mental residual functional capacity, the claimant is significantly unable to engage in substantial gainful activity or sustained full time employment.
The claimant has been under a disability, as defined in the Social Security Act from the alleged date of onset through the present time. |
(PROPOSED) FINDINGS OF FACT AND CONCLUSIONS OF LAW
After careful consideration of the entire record, it is proposed that the Administrative Law Judge makes the following findings.
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The claimant’s date of last insured is September 30, 2006. |
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The claimant has not been engaged in substantial activity since June 15, 2004, the alleged onset date (20CFR 404.1520(b), 404.1571 et seq., 416.920(b), and 416971 et seq.,). |
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The claimant has the following severe combination of physical impairments: Low back pain, sciatica, degenerative disc disease, L4-L5 annular disk tear in lumbar spine, lumbar radiculopathy, lumbar disk herniation, lumbar facet joint injury, lumbar disc bulge and facet joint, neck pain, shoulder pain, cervical facet syndrome, cervical disc bulge, cervical radiculopathy, cervical disc herniation, neuropraxia, occipital neuritis, cephalgia, myofascial pain, panic disorder without agoraphobia, depression and anxiety (20 CFR 404.1520(c) and 416.920(c)). |
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The claimant has an impairment or combination of impairments that meets or medically equals one of the listed impairment(s) in 20 CFR 404, Subpart P, Appendix 1 (20 CFR 404.1520(d) and 416.920(d)).
A finding of disabled should be appropriate pursuant to Appendix 2 to Subpart P Medical Guidelines Section 1.04. |
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After careful consideration of the record, the claimant does not have the residual physical capacity for a full range of light or sedentary work and after careful consideration of the record, the Claimant’s limitations so markedly restrict the claimant’s ability to perform even sedentary work, as defined by the regulations and result in such an erosion of the occupational base for which the claimant would otherwise qualify that there are no jobs available in the national economy which the Claimant can perform.
In making this finding the Administrative Law Judge should consider all symptoms to the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and 96-79, In the 11th Circuit, a claimant who alleges disability on subjective complaints of pain must show evidence of an underlying medical condition, and either: (1) objective medical evidence that confirms the severity of the alleged pain from that condition; or (2) that the objectively determined medical condition is of such a severity that it can reasonably be expected to give rise to the alleged pain (Landry v. Heckler, 782 F 1551 (11th Cir. 1986)) and also consider the opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p.
After considering the evidence of record, the Administrative Law Judge should find that the claimant’s medically determinable impairment(s) could reasonably be expected to produce the alleged symptoms and that the claimant’s statements concerning the intensity, persistence, and limiting effects of these symptoms are generally credible.
The contrary State agency medical opinions are given little weight because the State agency consultants did not adequately consider the claimant’s subjective complaints of pain, which should appear credible in light of the objective and clinical findings noted above. The State agency also failed to consider the combined effect of all of the claimant’s impairments, including the recent evidence submitted by the claimant. |
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A substance use disorder is not a contributing factor material to the determination of disability (20 CFR 404.1535).
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The claimant is a younger individual aged 45 years old. |
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The claimant has at least a high school education. The claimant is literate and able to communicate in English (20 C.F.R. 404.1564). |
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The claimant is unable to perform the requirements of past relevant work, due to the claimant’s physical and/or mental limitations.
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The claimant’s acquired job skills do not transfer to other occupations within the residual functional capacity defined above (20 CFR 404.1568 and 416.966) and the claimant does not have transferable job skills that would enable the claimant to return to either regular full time employment or substantial gainful activity.
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Considering the claimant’s age, education, work experience, transferable job skills and lack thereof, there are no jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. 404.1560(c), 404.1566, 416.960(c), and 416.966).
In determining whether a successful adjustment to other work can be made, the Administrative Law Judge must consider the claimant’s residual functional capacity, age education, and work experience in conjunction with the Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2. If the claimant can perform all or substantially all of the exertional demands at a given level of exertion, the medical-vocational rules direct a conclusion of either “disabled” or “not disabled” depending on the claimant’s specific vocational profile (SSR 83-11)
Due to the claimant’s age, vocational background, lack of transferable job skills and residual functional capacity, as described above, the claimant would be unable to make a successful adjustment to any jobs that exist in significant numbers in the national economy so as to engage in substantial gainful activity or sustained full time employment. Considering the claimant’s physical and/or mental limitations, the claimant cannot make and adjustment to any work that exists in significant numbers in the national economy and consequently, based on the Social Security Ruling 85-15, a finding of disabled should be reached therefore within the framework of medical-vocational rules.
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Accordingly, the claimant is entitled to a period of disability commencing with the date of the claimant’s alleged onset and to Disability Insurance Benefits under Section 216(l) of the Social Security Act.
Accordingly, the claimant is entitled to a period of disability commencing with the date of the claimant’s alleged onset and to Disability Insurance Benefits under Section 216(l) of the Social Security Act.
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Respectfully submitted, this _____ day of __________, 20____
Vera Smart, Esquire
VS:
CC: Client
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