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Michlitsch v. Berryhill

United States District Court, D. Minnesota

June 12, 2018

Thomas George Michlitsch, Plaintiff,
Nancy A. Berryhill, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant.

          Stephanie Ann Christel, Livgard & Lloyd, PLLP, (for Plaintiff)

          Bahram Samie, Assistant United States Attorney, United States Attorney's Office, (for Defendant).


          Tony N. Leung United States Magistrate Judge


         Plaintiff Thomas George Michlitsch brings the present case, contesting Defendant Commissioner of Social Security's denial of his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. This matter is before the undersigned United States Magistrate Judge on cross motions for summary judgment, Plaintiff's Motion for Summary Judgment (ECF No. 11) and the Commissioner's Motion for Summary Judgment (ECF No. 13). These motions have been referred to the undersigned for a report and recommendation to the district court, the Honorable Michael J. Davis, District Judge for the United States District Court for the District of Minnesota, under 28 U.S.C. § 636 and D. Minn. LR 72.1.

         Based upon the record, memoranda, and the proceedings herein, IT IS HEREBY RECOMMENDED that Plaintiff's Motion for Summary Judgment (ECF No. 11) be DENIED and the Commissioner's Motion for Summary Judgment (ECF No. 13) be GRANTED.


         Plaintiff applied for DIB in May 2014, asserting that he has been disabled since December 13, 2011, due to a “back injury.”[1] (Tr. 15, 93, 100, 101, 109, 168, 192, 196, 202, 210.) Plaintiff's application for DIB was denied initially and again upon reconsideration. (Tr. 15, 98, 100, 107, 109; see Tr. 114-19, 120-23.) Plaintiff appealed the reconsideration of his DIB determination by requesting a hearing before an administrative law judge (“ALJ”). (Tr. 15, 124-25; see Tr. 126-36.)

         The ALJ held a hearing in January 2016. (Tr. 15, 29, 31; see Tr. 138-65.) After receiving an unfavorable decision from the ALJ, Plaintiff requested review from the Appeals Council, which denied his request for review. (Tr. 1-5.) Plaintiff then filed the instant action, challenging the ALJ's decision. (Compl., ECF No. 1.) The parties have filed cross motions for summary judgment. (ECF Nos. 11, 13.) This matter is fully briefed and ready for a determination on the papers.


         A. Prior to 2013

         At the end of 2011, Plaintiff had a “sudden onset of back pain” when he fell and landed on his back after a chair he was sitting on broke. (Tr. 319; accord Tr. 350; see Tr. 320, 373.) In February 2012, Plaintiff had back surgery, a left L4 hemilaminectomy and microdiscectomy. (Tr. 262, 272, 277, 319, 320, 341; see Tr. 306, 310, 373, 374.)

         B. 2013

         At the end of October 2013, Plaintiff was seen by John D. Mageli, M.D., for an annual physical. (Tr. 261.) Among other complaints, Plaintiff was “concerned about lower back and left leg pain.” (Tr. 261.) Plaintiff also reported that “[h]is left foot doesn't work.” (Tr. 261; see Tr. 272.) Plaintiff had attended physical therapy intermittently, which was of “questionable help.” (Tr. 261.) Plaintiff's active diagnoses included, among others, left foot drop, lumbar disc herniation with radiculopathy, chronic low back pain, and lumbar radiculopathy. (Tr. 261; see Tr. 272.)

         Upon examination, Plaintiff's back was “straight and non-tender, ” and he had full range of motion in his upper and lower extremities. (Tr. 264.) His neurologic exam was normal. (Tr. 264.) Plaintiff's body mass index (“BMI”)[2] was approximately 35. (Tr. 264.)

         Dr. Mageli prescribed methylprednisolone, [3] a “Medrol Pak, ” for Plaintiff's lumbar radiculopathy and noted that a steroid injection could be arranged for Plaintiff's back if the methylprednisolone was unsuccessful. (Tr. 265.) Dr. Mageli noted that Plaintiff's “BMI is out of normal range” and discussed weight loss with Plaintiff. (Tr. 265.) Dr. Mageli noted that Plaintiff was “not ready to act” on this. (Tr. 265.)

         C. 2014

         During a follow-up appointment at the end of February 2014 for unrelated conditions, Plaintiff and Dr. Mageli discussed treatment of Plaintiff's lumbar radicular pain. (Tr. 268.) Dr. Mageli noted that Plaintiff wanted the steroid injection “but will probably need [a] repeat MRI.” (Tr. 268.) Dr. Mageli prescribed another Medrol Pak. (Tr. 269.) Plaintiff's BMI continued to be approximately 35. (Tr. 269.)

         Approximately one month later, Plaintiff followed up with Dr. Mageli for unrelated conditions. (Tr. 279.) Plaintiff's BMI was around 35. (Tr. 281.) Plaintiff again expressed interest in the steroid injection and Dr. Mageli prescribed a SoluMEDROL[4] shot. (Tr. 280, 282.)

         Plaintiff next followed up with Dr. Mageli in May. (Tr. 291.) His primary concerns were again unrelated. (Tr. 291.) During this visit, Plaintiff reported having back pain. (Tr. 292.) Plaintiff also reported that he had lost 30 pounds and his BMI was approximately 32. (Tr. 292, 293.) Dr. Mageli again prescribed a SoluMEDROL shot. (Tr. 294.)

         When Plaintiff saw Dr. Mageli in August, he requested another SoluMEDROL shot. (Tr. 302, 303.) Plaintiff reported continuing back pain, but the shot “help[ed] his back for [two] months.” (Tr. 303.) Plaintiff's BMI was near 33. (Tr. 304.) Plaintiff was given another SoluMEDROL shot. (Tr. 305.)

         Plaintiff's next appointment with Dr. Mageli was towards the end of October. (Tr. 306.) Back pain was one of his chief complaints. (Tr. 306.) Plaintiff reported that the SoluMEDROL shot was not helpful. (Tr. 307.) Plaintiff's BMI was approximately 34. (Tr. 308.) Dr. Mageli prescribed another Medrol Pak. (Tr. 308.)

         D. 2015

         Plaintiff saw Dr. Mageli again at the end of January 2015 for back pain, among other things. (Tr. 355.) Plaintiff reported that his back pain was still severe, but is okay if he is lying on his side. (Tr. 357.) Plaintiff stated that he “[c]annot do anything.” (Tr. 357.) Plaintiff took aspirin and antidepressants in the morning and these helped with his pain. (Tr. 357.) Plaintiff's BMI was approximately 35. (Tr. 357.) Dr. Mageli noted that Plaintiff “[n]eeds handicapped sticker for car.” (Tr. 357.)

         In mid-February, Plaintiff was seen by Christopher Alcala-Marquez, M.D., for the treatment of low-back and left-leg pain. (Tr. 341.) Plaintiff reported that his prior back surgery was helpful for approximately six months but his symptoms have returned and worsened over the past two years. (Tr. 341.) Dr. Alcala-Marquez additionally noted:

Prior to surgery in 2012, [Plaintiff] did have drop foot on the left with excruciating pain. He states that his pain is not as severe as it was before surgery; however, it is bothering him significantly. Pain is predominantly localized to the low back region radiating into the left buttock down the posterior thigh and affecting the knee. He currently takes aspirin for pain management. He has tried physical therapy; however, has never had any epidural steroid injections. Over the past two years, he has had injections into the buttock area, which he states gave him good relief. However, in October 2014, he had these injections again . . . [and] they no longer helped. He has tried oral steroids in the past, which provided him with relief. However, the last time he tried steroids, he did not get significant relief. He states his pain is worse in the mornings; however, gets better as the day goes on. 70% of the pain comes from the back, 20% comes from the buttock, and 10% comes from the knee. He rates his pain at 2/10 while sitting; however, the pain increases with standing, walking, and other activities. . . . He does note some left foot weakness as he did have drop foot on the left. However, this has improved since surgery. Aggravating factors include standing and walking; while alleviating factors . . . include sitting and lying down on his right side.

(Tr. 341; see Tr. 319, 350.)

         Upon examination, Dr. Alcala-Marquez noted:

Gait reveals normal cadence and rhythm. There is no antalgia or ataxia. He is able to toe and heel walk. Tandem gait intact. He does have some limited range of motion at the lumbar spine and has more pain with extension. Inspection of the lumbar spine reveals no deformity, asymmetry, or contour change. . . . He does not have any tenderness to palpation at midline or paraspinal muscles. Motor strength is 5/5 in all muscle groups in bilateral lower extremities. Incision is intact from L3 to S1 in bilateral lower extremities. Deep tendon reflexes are 1 at the patellar and Achilles tendons bilaterally. No clonus noted on exam bilaterally. Negative Hoffman's bilaterally. Negative straight leg raise in sitting position bilaterally. Palpable pulses in bilateral lower extremities. Full range of motion at the hips without pain on internal and external rotation. Negative Patrick's test bilaterally.

(Tr. 343.)

         Dr. Alcala-Marquez diagnosed Plaintiff with “left-sided radiculopathy with pseudoclaudicatory type symptoms.” (Tr. 343; see Tr. 344.) Dr. Alcala-Marquez recommended physical therapy and epidural steroid injections followed by surgery if these were unsuccessful. (Tr. 343; see Tr. 319.) Because Plaintiff's last MRI was in 2012, Dr. Alcala-Marquez ordered a new MRI “to evaluate for recurrence of disc herniation and evaluation of degree of nerve impingement if any.” (Tr. 343; see Tr. 317-18, 348.) Dr. Alcala-Marquez also ordered physical therapy and noted that a left L4-L5 transforaminal epidural steroid injection would likely be ordered for Plaintiff following the new MRI. (Tr. 343, 346.) Additionally, Dr. Alcala-Marquez counseled Plaintiff on weight management. (Tr. 344.)

         At the end of March, Plaintiff was seen at United Pain Center for injection therapy. (Tr. 319; accord Tr. 350; see Tr. 347.) Plaintiff had tried physical therapy “twice with some help, but d[id] not feel further [physical therapy] would be helpful.” (Tr. 319; accord Tr. 350.) Plaintiff also “prefer[red] to remain conservative for surgery at this time.” (Tr. 319; accord Tr. 350.) Plaintiff reported that “his back pain is most severe, followed by his buttock and leg pain.” (Tr. 319; accord Tr. 350.) Standing and walking caused the most pain and Plaintiff reported that he cannot bend backward due to pain. (Tr. 319, 350.) Plaintiff presented with a cane. (Tr. 320, 350) Plaintiff rated his pain at 5 out of 10. (Tr. 319, 320, 350.)

         During the appointment, the results of the MRI taken approximately one month earlier were discussed:

1. At ¶ 3-L4 there is severe central canal stenosis secondary to a diffuse broad-based disc bulge extending into the inferior foraminal zones bilaterally where there is mild bilateral neural foraminal narrowing. 2. At ¶ 4-L5 there is severe central canal stenosis secondary to a diffuse asymmetric left disc bulge with advanced facet arthropathy and ligamentum flavum thickening. There is moderate left foraminal stenosis. 3. At ¶ 2-L3 there is mild central canal stenosis secondary to an asymmetric left annular bulge. 4. The spinal canal is narrow on a congenital basis in the lower lumbar spine due to short pedicles. 5. Small Schmorl's nodes at the superior endplate of L5 with associated edema extending into the right L5 pedicle.

(Tr. 320; accord Tr. 350; see Tr. 317-18, 352-53.)

         Plaintiff was diagnosed with “significant disc degeneration, arthritis, and stenosis” and “slight SI joint dysfunction.” (Tr. 320; accord Tr. 351.) Plaintiff was given a transforaminal lumbar epidural steroid injection at ¶ 4-L5 on the left. (Tr. 320-21, 351.) Plaintiff reported an immediate decrease in pain from 5 to 3 out of 10. (Tr. 321, 351; see Tr. 323.) Plaintiff was directed to follow up with Dr. Alcala-Marquez. (Tr. 320, 351.)

         Plaintiff followed up with Dr. Alcala-Marquez approximately one week later. (Tr. 337-40.) Plaintiff's motor strength was “5/5 through all muscle groups in the lower extremities”; his sensation was “intact upon light touch bilaterally in the lower extremities”; and his deep tendon reflexes were “ bilaterally in the lower extremities.” (Tr. 338.) Plaintiff had negative straight leg raising bilaterally and “negative Babinski.” (Tr. 338.) There was “no evidence of clonus.” (Tr. 338.) Plaintiff had full bilateral range of motion in his hips, knees, and ankles. (Tr. 338.)

         Dr. Alcala-Marquez reviewed Plaintiff's treatment options with him. (Tr. 338.) Plaintiff felt that he had not exhausted his non-surgical options and wanted to proceed with physical therapy and “occasional epidural steroid injections.” (Tr. 338.) Dr. Alcala-Marquez noted that “this is very appropriate and reasonable.” (Tr. 338.) Dr. Alcala-Marquez advised Plaintiff “that this is a quality of life issue and he can select to have surgery, if his symptoms worsen or if he develop[s] any neurological deficits.” (Tr. 338.) Plaintiff was directed to contact Dr. Alcala-Marquez if his symptoms worsened. (Tr. 338.)

         From May through the middle of August, Plaintiff participated in a rehabilitation program with Minnesota Spine Rehab. (Tr. 365-75.) At the initial assessment, Plaintiff's chief complaints were lower back pain “associated with left lower extremity pain, numbness and tingling traveling below the knee.” (Tr. 373.) Plaintiff's “back symptoms [we]re more significant than his extremity symptoms.” (Tr. 373.) Plaintiff reported “constant lower back pain, ” which intensified at night. (Tr. 373.) Plaintiff rated his pain at 5 to 6 out of 10. (Tr. 373.) Changes in position helped relieve his pain and physical activity tended to increase it. (Tr. 373.)

         Plaintiff reported “progressive worsening of his lower back pain” over “the last few years.” (Tr. 373.) Plaintiff had “been treated conservatively for his complaints with medications, physical therapy and home exercises with marginal improvement in his symptoms.” (Tr. 373.) Plaintiff experienced “some marginal improvement” with the epidural steroid injection. (Tr. 373.)

         Plaintiff was assessed by Sherief A. Mikhail, M.D., M.P.H. (Tr. 375.) Plaintiff was positive for central spinal stenosis and peripheral nervous symptoms as well as chronic lower back pain. (Tr. 374.) Upon examination, there was no spasm, tenderness, or deformity in Plaintiff's neck and he had “[f]ull range of motion without discomfort.” (Tr. 375.) Plaintiff's “[p]eripheral pulses [we]re 2 and symmetric in the upper and lower extremities.” (Tr. 375.) Dr. Mikhail additionally noted:

Examination of the back in the standing position shows a normal lumbar lordosis. . . . There is involuntary muscle tightness and point tenderness noted in the lumbosacral region. There is no triggering noted on examination. There is no tenderness on percussion of the spine.
Straight leg lift is negative bilaterally. Lower limb reflexes are present and symmetric. [Plaintiff] is able to get up on his toes without difficulty. [Plaintiff] is unable to get up on his heel because of left ankle weakness. Dorsiflexor strength on the left is estimated as 3/5. The remainder of the lower extremity strength testing is normal by opposition. Sensation and perfusion are intact. The patient ambulates with a slightly limping gait. Waddell signs are negative. Trunk shows essentially normal range of motion. There is moderate discomfort noted on flexion and extension.

(Tr. 375.)

         Dr. Mikhail diagnosed Plaintiff with spinal stenosis, lumbar radiculopathy, deconditioning syndrome, and left foot drop. (Tr. 372.) Dr. Mikhail described Plaintiff's prognosis for improvement as “good.” (Tr. 372.) Dr. Mikhail directed Plaintiff to continue taking Anacin[5] and prescribed gabapentin[6] for Plaintiff's “neuropathic complaints and chronic discomfort.” (Tr. 372.) Plaintiff could also supplement with extra-strength Tylenol for additional pain relief. (Tr. 372.)

         Dr. Mikhail saw Plaintiff an additional four times during the rehabilitation program, approximately every three to four weeks. (Tr. 365-71.) Each time, Plaintiff reported some improvement in his pain. (Tr. 365, 367, 369, 371.) Over the course of the program, Plaintiff's pain went from being “somewhat constant” at ¶ 4 out of 10 to being “intermittent” at ¶ 2 to 3 out of 10. (Tr. 367, 371.) Plaintiff also went from “lifting 25 foot pounds for 30 repetitions until full fatigue of the lumbar extensors” to “lifting 135 foot pounds for 12 repetitions until full fatigue of the lumbar extensors.” (Tr. 365, 371.) Although Plaintiff continued to report lower left extremity weakness and pain radiating into his buttocks throughout the program, he also reported an increase in strength and flexibility. (Tr. 365, 367, 369, 371.) During the course of the program, Dr. Mikhail changed Plaintiff's medication from gabapentin to Topamax[7] due to grogginess and then again from Topamax to Lyrica[8] due to an allergic reaction. (Tr. 367, 369.) None of these medications were effective for Plaintiff. (Tr. 365.) Dr. Mikhail encouraged Plaintiff to remain active. (Tr. 366, 368, 369, 371.)

         In August, Plaintiff was discharged from the rehabilitation program to a home program after he “reached a dynamic plateau an optimal level of function.” (Tr. 365.) Dr. Mikhail discussed “the importance of maintaining a home program” as “this was a lifelong function.” (Tr. 365.) Plaintiff was directed to continue managing his pain with Anacin. (Tr. 365.)

         When Plaintiff saw Dr. Mageli towards the end of September, he reported that his back was generally “much better - with therapy and exercise.” (Tr. 362.) Dr. Mageli prescribed another Medrol Pak for Plaintiff. (Tr. 364.)


         A. February 2014

         In February 2014, Dr. Mageli completed a Physical Residual Functional Capacity Questionnaire regarding Plaintiff. (Tr. 252-54.) Dr. Mageli reported that he sees Plaintiff “every 3-6 months.” (Tr. 252.) Dr. Mageli listed Plaintiff's diagnoses as “lumbar radiculopathy s/p surgery” and described his prognosis as “poor to fair.” (Tr. 252.) Plaintiff's symptoms were “chronic back [and] leg pain” as well as “leg weakness.” (Tr. 252.) Plaintiff experienced “[m]oderately severe” pain on a “daily” basis. (Tr. 252.) When asked to identify the relevant clinical signs and objective findings, Dr. Mageli wrote “[i]mpaired sleep” and “weakness in legs.” (Tr. 252.) In describing ...

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