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Michaelis v. Berryhill

United States District Court, N.D. Texas, Dallas Division

April 6, 2018

MICHAEL MICHAELIS, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

         By Special Order No. 3-251, this social security appeal was automatically referred for proposed findings of fact and recommendation for disposition. Before the Court are Plaintiff's Opening Brief, filed October 13, 2017 (doc. 15), Defendant's Response Brief, filed November 13, 2017 (doc. 16), and Plaintiff's Reply Brief , filed December 4, 2017 (doc. 17). Based on the relevant findings, evidence, and applicable law, the Commissioner's decision should be REVERSED, and the case should be REMANDED for further administrative proceedings.

         I. BACKGROUND [1]

         A. Procedural History

         Michael Michaelis (Plaintiff) seeks judicial review of a final decision by the Commissioner of Social Security (Commissioner) denying his claim for disability insurance benefits (DIB) under Title II of the Social Security Act (Act). (doc. 15 at 5.) On November 15, 2013, Plaintiff applied for DIB, alleging disability beginning on December 13, 2012. (R. at 195.) His claim was denied on March 13, 2014, and upon reconsideration on June 3, 2014. (R. at 212-15, 218-20.) On June 16, 2014, he requested a hearing before an Administrative Law Judge (ALJ). (R. at 222-23.) He appeared and testified at a hearing on April 10, 2015. (R. at 142-82.) On February 3, 2016, the ALJ issued a decision finding that he was not disabled and denying his claim for benefits. (R. at 120-36.)

         Plaintiff timely appealed the ALJ's decision to the Appeals Council on February 10, 2016. (R. at 94-96.) The Appeals Council denied his request for review on March 8, 2017, making the ALJ's decision the final decision of the Commissioner. (R. at 1-5.) Plaintiff timely appealed the Commissioner's decision under 42 U.S.C. § 405(g). (See doc. 1.)

         B. Factual History

         1. Age, Education, and Work Experience

         Plaintiff was born on April 30, 1962, and was 52 years old at the time of the hearing before the ALJ. (R. at 134, 156.) He had at least a high school education and could communicate in English. (R. at 134.) He had past relevant work experience as an outside sales representative and networking sales representative. (R. at 134.)

         2. Medical Evidence

         On October 21, 2008 and November 5, 2008, Plaintiff met with Roland Siegler, M.D., and reported a history of neck pain and muscle spasms. (R. at 486, 488.) Examinations showed Plaintiff had some straightening of the normal cervical lordosis as well as cervical spondylosis with disc space narrowing and osteophyte formation at ¶ 5-6. (R. at 486, 488.)

         Between September 12, 2011 and November 12, 2013, Plaintiff received regular treatment at Tri City Psychiatric Services. (R. at 515-26.) He initially stated he drank a lot of alcohol, later stated he only drank on the weekends, and denied alcohol use during the final meetings. (See R. at 515-26.) He did not appear to be medication compliant on multiple occasions. (R. at 515-19, 521, 525.)

         On December 5, 2012, an MRI of Plaintiff's cervical spine revealed multilevel cervical spondylosis with straightening of the expected degree of cervical lordotic curvature. (R. at 447-48.) Areas of edema were present within the C2, C4, and C5 vertebral bodies, particularly to the right of the midline. (R. at 447.)

         On December 21, 2012, Plaintiff went to the Fort Worth Brain and Spine Institute (Institute) with neck pain. (R. at 561-62.) His x-ray and MRI showed curvature of his spine to the right, and a right-sided eccentric disc bulge at ¶ 4-5 that caused mild central canal and moderate neural foraminal stenosis. (R. at 562.) Atif Haque, M.D., informed Plaintiff that these issues could explain his right shoulder and arm symptoms. (R. at 563.) Dr. Haque offered him surgery, and Plaintiff was scheduled to undergo a C4/C5 anterior cervical discectomy and fusion at Baylor All Saints Hospital (Baylor) on January 9, 2013. (R. at 563.)

         Upon referral from Dr. Haque, Plaintiff met with Charles Hughes, D.O., on December 21, 2012. (R. at 465-66.) Plaintiff reported that he suddenly developed right neck pain while boating in 2007; he denied any significant trauma or a major accident. (R. at 465.) Since 2007, he had struggled with chronic neck pain and had been previously diagnosed with cervical torticollis. (Id.) The pain was excruciating; cervical facet blocks were not helpful, although pulling his neck to his left shoulder was beneficial, and tilting his head backwards relieved the muscle pull. (Id.) Dr. Hughes noted that Plaintiff had been diagnosed with bipolar disorder a few years prior but had stopped taking all of his psychiatric medications a few months ago because he could not afford them. (Id.) He also noted that Plaintiff was extremely anxious and irritable, and reported that his chronic pain took over his life. (Id.) Plaintiff denied tobacco use but stated that he drank “as much alcohol as possible.” (Id.) Dr. Hughes diagnosed Plaintiff with very mild cervical dystonia with cervical torticollis. (R. at 466.) Before he pursued treatment with Botox, however, he wanted Plaintiff to have better control over his bipolar symptoms and pain management medications because there was a high risk of heightened pain due to Plaintiff's uncontrolled bipolar disorder. (Id.) Without it, Botox treatment would not be a long-term benefit. (Id.)

         Plaintiff routinely received treatment from Ashley Classen, D.O., at Trinity Pain Medicine Associates (Trinity), for pain management from December 21, 2012, until June 9, 2014. (R. at 607-736.) Dr. Classen continuously informed Plaintiff that there were multiple causes for his symptoms, and that he would require many different treatments, but it was possible his symptoms would not improve even with those treatments. (See R. at 607-736.) Plaintiff understood that the goal was to isolate his pain generators, then perform more invasive procedures to give him a longer duration of pain relief. (See R. at 607-736.) Plaintiff was regularly prescribed Oxycotin, and also received Botox and nerve block injections. (See R. at 610, 612, 615, 619, 622, 626-27, 634, 637-38, 642, 646, 669, 676, 709, 713, 717.) The treatment was beneficial, and Plaintiff indicated he was in no pain on multiple occasions. (R. at 618, 620, 623, 626, 630, 640, 644, 648, 657, 663, 678, 682, 711, 719.) Dr. Classen noted that Plaintiff was moderately obese in October 2013. (R. at 690.) Throughout his visits at Trinity, Dr. Classen routinely noted that Plaintiff consumed alcohol on a regular basis. (R. at 606, 608, 612, 616, 620, 623, 630.)

         On January 9, 2013, Plaintiff underwent a C4-5 anterior cervical discectomy and fusion surgery without complication. (R. at 423, 781-82.) The following morning, he noted some improvement in his neck tightness and had no arm pain. (R. at 423.) Overall, his pain was controlled. (Id.) Upon discharge, Plaintiff reported his pain was 5/10 in the anterior neck, and was aggravated by movement, but was alleviated with rest and medication. (R. at 432.) He was discharged on January 10, 2013. (Id.)

         On January 25, 2013, Plaintiff had his first post-operation follow-up at the Institute. (R. at 558-59.) The pain on the right side of his neck was resolved but he still had pain on the left side. (R. at 558.) He thought he was holding his head straighter and felt like the surgery was a “miracle.” (Id.) He continued to report that he was doing well and that he was happy with the surgery at subsequent follow-up appointments on March 1, 2013, April 5, 2013, July 12, 2013, and October 11, 2013. (R. at 546, 549, 552, 555.) He still reported some pain, however. (R. at 549, 552, 558.)

         On April 1, 2013, Plaintiff underwent a psychological evaluation with Charles A. Haskovec, Ph. D., to determine his suitability for a pain reduction procedure. (R. at 787-99.) He was oriented to person, place, and time, dysphoric, without suicidal or homicidal ideations, and without hallucinations or delusions. (R. at 788.) He reported drinking the prior weekend, but stated that it was the first time he drank in about six weeks. (Id.) Before that, he drank four to six drinks on the weekend. (Id.) He reported experiencing multiple stressors and described himself as having low levels of coping skills. (R. at 789.) Over the previous two weeks, he had experienced high levels of depressed mood, guilt, and problems with concentration, memory, and mental control, as well as moderate levels of anxiety. (Id.) Dr. Haskovec found that Plaintiff suffered from chronic pain, which had a negative impact on his qualify of life and frustrated him because it limited his ability to do things he used to do. (R. at 798.) Dr. Haskovec opined that Plaintiff should be considered for the proposed pain reduction procedure, finding that he had legitimate pain that had been intractable with other treatments. (R. at 799.)

         On April 4, 2013, Plaintiff saw Gary D. Gottfried, M.D., complaining of neck pain that radiated down his right arm, as well as foot pain. (R. at 577.) Plaintiff informed Dr. Gottfried that he had undergone physical therapy, neck and foot surgery, and steroid and Botox injections in his neck. (R. at 577.) Plaintiff was pleasant, cooperative, in no acute distress, and moderately obese. (R. at 578.) He tended to hold his head tilted slightly to the right, and there appeared to be some atrophy of his left foot. (Id.) His cervical range of motion was moderately limited with rotation and lateral flexion movements, especially to the left, at which point he indicated some discomfort on the right side of his neck. (Id.) There was tenderness along the posterior cervical and suprascapular muscles, greater on the right, and he also had mild tenderness along the medial and lateral regions of his left foot. (Id.) No. fasciculation, muscle spasms, rashes, or lesions were noted. (Id.) He had grossly intact peripheral pulses in both upper and lower extremities, and a muscle test revealed generally normal strength throughout both of his upper and lower extremities. (Id.) An electrodiagnostic study demonstrated decreased recruitment of motor units, along with small amplitude deep peroneal nerve ankle response to the left extensor digitorum brevis muscle, consistent with muscle atrophy, secondary to decreased use related to Plaintiff's fusion or possible injury in his peroneal nerve. (Id.) The study was otherwise within normal limits without evidence of cervical radiculopathy or and there was no indication of peripheral neuropathy. (Id.)

         On August 5, 2013, Plaintiff underwent a radiofrequency thermocoagulation in his neck. (R. at 661-62.) The pain in his neck improved, especially on the right side, but he still experienced pain on the left side of his neck. (R. at 663, 666.)

         On October 21, 2013, indwelling spinal cord stimulator leads were placed in Plaintiff's neck and back to help control his pain. (R. at 681-82.) At a follow-up on October 28, 2013, he reported 60 percent relief, and the stimulator leads were removed. (R. at 693, 695.) He received permanent stimulator leads on November 27, 2013. (R. at 580.) Following his surgery for the permanent leads, Plaintiff had follow-up appointments with Dr. Classen on December 3, 2013, December 11, 2013, and December 24, 2013. (R. at 697-709.) He reported that his pain was three out of ten, was in no apparent distress, and stated he did not have any complications after his surgery. (R. at 98, 700, 704.) He had additional follow-up appointments at the Institute on December 13, 2013, and January 10, 2014. (R. at 537-41.) He initially had pain and swelling the first week after surgery but reported feeling better after. (R. at 540.) He could not tell if there was improvement in the cervical stimulator, but the thoracic stimulator was providing coverage. (Id.) In January, the stimulators were providing too much coverage to additional areas. (R. at 537.)

         An MRI taken on October 25, 2013, showed no evidence of fracture or dislocation, and bony alignment was normal. (R. at 777.) There was no soft tissue abnormality, but degenerative disc disease with narrowing of the disc space at ¶ 4-5 was noted. (Id.) Electronic stimulator wires in the spinal canal at the C2-3 level were also noted. (Id.)

         An x-ray conducted on January 10, 2014 revealed mild degenerative disc disease at ¶ 5-C6. (R. at 574.) There was no acute fracture or dislocation, and no significant prevertebral soft tissue swelling. (Id.)

         On March 10, 2014, Andrea Fritz, M.D., a state agency medical consultant (SAMC), completed a physical residual functional capacity (RFC) assessment of Plaintiff based on the medical evidence. (R. at 189-91.) Dr. Fritz opined that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk for 6 hours in an 8-hour workday; sit 6 hours in an 8-hour workday; occasionally climb ramps, stairs, ladders, ropes, and scaffolds; balance frequently; and occasionally stoop, kneel, crouch, and crawl. (R. at 189.) Plaintiff was limited in lifting left and right over the head, but was unlimited in handling, fingering, or feeling. (R. at 190.) Also on March 10, 2014, Robert B. White, Ph. D., an SAMC, completed a mental RFC assessment for Plaintiff. (R. at 191-92.) He opined that Plaintiff was no more than moderately limited in the areas of understanding, memory, sustained concentration, persistence, social interaction, and adaptation. (Id.) ...


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