Adie v. Commissioner, Social Sec. Admin., Civil No. 95-217-SD.
| Decision Date | 12 August 1996 |
| Docket Number | Civil No. 95-217-SD. |
| Parties | Scott L. ADIE v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION. |
| Court | U.S. District Court — District of New Hampshire |
Steven I. Bergel, Chelmsford, MA, for plaintiff.
David L. Broderick, Concord, NH, for defendant.
Pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), plaintiff Scott L. Adie seeks review of a final decision of the Commissioner of the Social Security Administration denying his claim for benefits. Presently before the court is plaintiff's motion to reverse, which primarily argues that the decision of the Commissioner was not supported by substantial evidence. Defendant has moved for affirmance.
Plaintiff filed an application for a period of disability and for disability insurance benefits on November 23, 1993, alleging an inability to work since October 22, 1992. Transcript (Tr.) 60-63. The application was denied initially, Tr. 76-77, and upon reconsideration, Tr. 82-83, by the Social Security Administration. An Administrative Law Judge (ALJ), before whom plaintiff and his attorney appeared, considered the matter de novo, and on December 16, 1994, found that plaintiff was not under a disability. Tr. 12-22.
Applying the five-step sequential evaluation process prescribed by 20 C.F.R. § 404.1520, the ALJ found that (1) Adie has not engaged in substantial gainful activity since October 22, 1992; (2) he has "severe degenerative disc disease", Tr. 21; (3) his impairments or combination of impairments do not meet or equal the impairments listed in 20 C.F.R. pt. 404, subpt. P, app. 1; (4) his impairments prevent him from performing his past relevant work as a chef; and (5) he has a residual functional capacity (RFC) for sedentary work. Tr. 21-22. The ALJ further found that Adie was not credible regarding the severity of his subjective complaints of pain and their effect on his ability to perform substantial gainful activity. Tr. 21.
The Appeals Council denied plaintiff's request for review on February 28, 1995, Tr. 34, thereby rendering the ALJ's decision the final decision of the Commissioner of the Social Security Administration, subject to judicial review.
Plaintiff Scott Adie had worked for nearly twenty years as a chef when he injured his back while moving a refrigerated salad table at his place of employment on October 22, 1992. Tr. 39, 113. At the time of the accident, he was head chef at Capucino's Restaurant in Newton, Massachusetts, and was thirty-eight years old. Tr. 38, 158. Adie was out of work for approximately six weeks before he returned on a part-time basis with limited duties. Shortly thereafter he left work because of a returning pain in his back, buttocks, and right leg. Tr. 38, 41, 159.
On March 5, 1993, plaintiff was examined by Dr. B. Eugene Brady, an orthopedic surgeon, who reported that an MRI of plaintiff's lower spine revealed a herniation of the L5-S1 intravertebral disc. Tr. 113.1 Otherwise, Dr. Brady found that plaintiff had normal ankle and knee reflexes and a normal motor exam, although a sensory exam showed some reduction of motion in his back. Dr. Brady recommended conservative treatment, including rest and a swimming program, and indicated that if plaintiff's symptoms did not improve, surgical intervention might possibly be necessary. Id. Plaintiff continued to see Dr. Brady in April and May of 1993, complaining of back pain. On May 14, 1993, Dr. Brady reported that from a standing position Adie continued to have flattening of the lumbar lordosis, consistent with persistent muscle spasm. Tr. 114.
On April 9, 1993, Adie was evaluated by Dr. Mordecai E. Berkowitz, an orthopedic surgeon, at the request of the carrier of his employer's workmen's compensation insurance. Adie complained to Dr. Berkowitz of lower back and right leg pain. Tr. 118. Dr. Berkowitz observed plaintiff to be in mild distress, with limited range of motion in his back, and noted that at that time plaintiff did not appear to be capable of gainful employment. Tr. 118-20. In addition, he found plaintiff to have normal ankle and knee reflexes and normal strength. Tr. 118-19. Dr. Berkowitz diagnosed Adie as having a sprain to the lumbosacral spine with right sciatica and a questionable herniated disc at L5-S1. Tr. 119. He further opined that the objective findings substantiated plaintiff's subjective complaints, although the limitations in his back motions were somewhat greater than that which would normally be expected of a patient who had received the type and degree of therapy that plaintiff had previously received (traction, hydroculator pads, ultrasound, and massages). Tr. 119-20. Dr. Berkowitz recommended that claimant undergo a more aggressive rehabilitative exercise program, and further noted that claimant might need surgery should a new MRI confirm the presence of a herniated disc at L5-S1. Tr. 121.
Dr. Scott Masterson treated plaintiff on June 8, 1993, at the Northeast Rehabilitation Hospital. Tr. 150-52. Dr. Masterson noted that Adie had L5-S1 disc herniation, centrally located. Tr. 151. Physical examination revealed minimal lumbar range of motion and no lumbar lordosis. Tr. 151. He also reported that Adie's clinical examination was more significant for localized muscular tenderness, loss of lumbar symmetry, and deconditioning than specifically for a lumbosacral radiculopathy. Id. He recommended that Adie go on a six-day course of anti-inflammatory medication, physical therapy, and a swim therapy program. Tr. 152. At a follow-up examination three weeks later, Dr. Masterson observed that Adie was still walking with a forward flexed position and a slight limp in the right leg. Tr. 153. Adie was also still tender around the right iliolumbar region, the right PSIS, and somewhat in the sacroiliac region, although not in the gluteals or the greater trochanter. Id. On this visit, Adie told Dr. Masterson that he would not take the six-day course of steroids because he feared the long-term side effects. Id. However, he agreed to a local steroid injection into the area of the iliolumbar region and the PSIS. Id. Dr. Masterson recommended a regular swimming program and continuation of Adie's exercise program, but discontinued physical therapy for Adie's back. Id. A mid-August progress report to Dr. Masterson written by Adie's physical therapist indicated that the swimming therapy had not helped Adie's symptoms. Tr. 124.
On August 16, 1993, Adie reported to Dr. Masterson that he was feeling worse and that he still was experiencing pain in his lower back, radiating down into his legs. Tr. 154. At Adie's request, Dr. Masterson referred him to a neurosurgeon for further work-up and a decision about surgical intervention. Id.
On August 31, 1993, Adie was examined by Dr. Amin F. Sabra, a neurologist, Tr. 128-29. On this visit, plaintiff reported pain upon standing or sitting, relieved by lying down on one side. Tr. 128. Dr. Sabra noted plaintiff was able to straight-leg raise to 45 degrees bilaterally and that his reflexes were normal, but that there was diffuse weakness in the left leg. Id. In addition to a CAT scan and an EMG, Dr. Sabra recommended conservative treatment. Tr. 129. A CAT scan of plaintiff's lumbosacral spine, performed on September 10, 1993, revealed mild stenosis at L5-S1, with disc protrusion centrally and toward the right, which appeared to impinge on the right S1 nerve root and, to a lesser degree, on the left S1 nerve root, proximal to their lateral recesses. Tr. 132. In addition, EMG and NCV tests revealed bilateral S1 radiculopathy, but no active denervation. Tr. 135. At a follow-up examination, Dr. Sabra recommended aggressive physical therapy and an epidural block. Tr. 130. Dr. Sabra also noted the possibility of surgical intervention if plaintiff did not improve within six weeks. Id.
On November 10, 1993, Adie was examined by Dr. Steven C. Schachter, a neurologist. After noting that plaintiff's EMG had been abnormal and that a CAT scan had revealed a herniated L5-S1 disc, both to the right and to the left, Dr. Schachter diagnosed plaintiff as having a "[c]hronic herniated disc secondary to [his] work related injury." Tr. 136. After observing that conventional treatment had not helped plaintiff, he further opined that plaintiff would be "completely disabled from all forms of gainful employment including light and sedentary activity given the degree of pain that he is in and his functional limitations" until he received surgery. Tr. 136-37.
Plaintiff visited Dr. Edwin G. Fischer, a neurosurgeon, in February 1994. Tr. 155. Dr. Fischer found plaintiff had limited range of motion of his back, but that he had normal reflexes and essentially normal strength in his lower extremities. In addition, no sensory loss was apparent. In March, after examining claimant's test results, Dr. Fischer concluded that surgery would not be unreasonable given the duration of plaintiff's disability. Tr. 156. Dr. Fischer also prescribed Flexeril and Darvocet.
Dr. Deepak S. Tandon, a neurologist, examined plaintiff on April 29, 1994, at the request of plaintiff's employer's workmen's compensation carrier. Tr. 158-65. Plaintiff told Dr. Tandon he was experiencing moderately severe lower back pain, with right-sided sciatica, and that the pain frequently traveled down the right buttock to the back of the right knee. Tr. 161, 164. Upon examination, Dr. Tandon found mild restriction of lumbar spine movements, difficulties with straight-leg raising, a moderate amount of lumbar muscle spasm, and an antalgic gait. Tr. 164. Dr. Tandon further found no evidence of a motor or sensory deficit. Id. He opined that the objective findings did correlate with the subjective symptoms, Tr. 164-65, and also noted that he thought surgery would be beneficial to plaintiff, Tr. 164.
On August 23, 1994, Adie visited Dr. Schachter and told...
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