Ketcher v. Apfel

• Decision Date: 27 August 1999
• Docket Number: No. Civ.A. AW-98-3486.,Civ.A. AW-98-3486.
• Citation: 68 F.Supp.2d 629
• Parties: James D. KETCHER v. Kenneth S. APFEL, Commissioner of Social Security.
• Court: U.S. District Court — District of Maryland

68 F.Supp.2d 629

James D. KETCHER v. Kenneth S. APFEL, Commissioner of Social Security.

No. Civ.A. AW-98-3486.

United States District Court, D. Maryland.

August 27, 1999.

Stephen F. Shea, of College Park, Maryland, for plaintiff.

Allen F. Loucks, Assistant United States Attorney, of Baltimore, Maryland, for defendant.

MEMORANDUM OPINION

GAUVEY, United States Magistrate Judge.

The plaintiff, James D. Ketcher, filed this action seeking judicial review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of the Social Security Administration (the "Commissioner") denying his claim for disability insurance benefits ("DIB") under Title II and Part A of Title XVIII of the Social Security Act. Pursuant to 28 U.S.C. § 636(c) and Local Rule 301, the undersigned magistrate judge hears this case by the consent of the parties. Pending before the Court are the parties' cross-motions for summary judgment. For the following reasons, the Commissioner's motion will be DENIED, the claimant's motion will be GRANTED, and the decision below will be REMANDED for further proceedings.

Procedural Background

The claimant filed for DIB on February 10, 1995, alleging an inability to work due to degenerative disc disease, a herniated disc, and two back surgeries, which eventually made him stop working on September 23, 1994. (R. 48). The Social Security Administration (SSA) determined that the claimant's condition did not prevent him from working an denied him benefits on March 17, 1995. (R. 34). The claimant filed a request for reconsideration on March 22, 1995. (R. 62-65). The SSA determined, after considering further evaluations by its own examiners and independent physicians, that the claimant did not have a medical condition that prevented him from working. (R. 68). The claimant requested a hearing by an Administrative Law Judge ("ALJ") on August 7, 1995. (R. 41). He alleged that since the date he filed a request for reconsideration, he experienced increased pain, significant weight gain, scattered hypesthesia over his left leg, and a reduced capacity to walk, sit, and stand. (R. 46). The claimant had a hearing on August 14, 1996 in front of an ALJ, who found that, on January 23, 1997, the claimant not disabled. (R. 13-25). The claimant requested review on April 3, 1997, which was denied by the Appeals Council on August 18, 1998. (R. 4, 7). The ALJ's hearing decision is the final decision of the Commissioner and the instant case is before this Court for review. See 42 U.S.C. § 405(g). The claimant filed the current civil action for review of the Commissioner's final decision on October 16, 1998. (Paper No. 1).

Factual Background

The claimant was born on November 11, 1958 and at the time of his hearing in front of the ALJ, he was 37 years old. (R. 81). He testified that he had a sixth grade education and no additional training or formal education.¹ (R. 83, 284). Testing indicated that the claimant has a seventh grade reading level, fourth grade spelling level, and a sixth grade arithmetic level. (R. 84). The claimant is currently married and lives with his spouse and a 14-year-old child. (R. 285-286). He also pays child support for his three other children. (R. 286).

Before his alleged disability, the claimant was a truck driver and mechanic for Rental Tools and Equipment, from September 16, 1992 until September 23, 1994.² (R. 57). His duties included loading, unloading, and delivering equipment, occasional operation of a forklift. (Id.). He also filled out log sheets, delivery sheets, and inspection sheets for trucks.³ (Id.). He was required to lift and carry electrical cables 30 to 100 feet at a time, heaters, pipe dies, and jack hammers and hooked air compressors to trucks. (Id.). He frequently lifted 50 pounds and lifted up to 100 pounds. (Id.). On an average day, he usually spent two hours walking, one hour standing, and five hours sitting. (Id.).

After an injury sustained at work on April 20, 1993, the claimant went to see chiropractor Cathlyn Hartung on April 23, 1993. (R. 94). The claimant told Dr. Hartung "that on April 20 1993, he was hauling equipment and while pulling a cable to load a loader onto a truck, he slipped backwards on a greasy floor and landed on his back and right side. He felt immediate pain in his `lower back at that bottom of [his] spine.'" (Id.). The claimant complained of constant, severe, lower back pain with descending right leg pain, right ankle pain, and numbness and tingling in his foot. (Id.). He stated that his back pain began immediately after his fall and had gotten progressively worse in the past few days. (Id.). Dr. Hartung noted that the claimant was limping. (Id.). "Dermatermal sensitivity was tested and [was] found to be unequal between extremities for the L4 and L5 nerve route distributions." (R. 95). X-rays showed decreased disc spacing of the L5 and L6 regions. (Id.). Dr. Hartung concluded that the claimant's prognosis was fair and the claimant needed rest and possible surgery. (Id.). She recommended home rest, application of therapeutic packs, flexion distraction therapy, trigger point therapy, interferential muscle stimulation, and bracing. (Id.). She also noted that appropriate professional referrals would be made as needed. (Id.).

At the request of Dr. Hartung, Vimla Bhooshan, M.D., on April 28, 1993, performed an MRI of the claimant's lumbar spine, which showed significant narrowing at L5-S1 disc space, disc degeneration and narrowing at L4-L5 and L2-L3, degeneration without loss of height at L3-L4, subligamentous herniation of nuclear material and a fragment located on the right side producing compression of the right lateral aspect of the thecal sac and of the right L5 nerve root, and a small protrusion at the L3-L4 level touching the thecal sac. (R. 127-128).

On examination by orthopedic surgeon Lee Hieb, M.D., on April 30, 1993, the claimant described his back injury sustained on April 20, 1993: he slipped and struck a truck with his lower back while pulling a cable at work. (R. 77). At this visit, he complained of pain down his right leg and through his right buttock to his right heel, a tingling sensation on the lateral aspect of his right calf and right foot, and right leg weakness. (Id.). Dr. Hieb noted that the claimant was a "large gentleman" and that he walked with a limp and his pain increased with sneezing or coughing, sitting for any period of time, or standing for long periods of time. (Id.). She noted that the claimant's MRI scan showed "L5-S1 narrowing, disc degeneration at L4-5 with herniation of a disc fragment on the right at L4-5." (R. 78). X-rays taken at Dr. Hieb's office showed narrowing at the L5-S1, L3-L4, and L4-L5 disc space. (Id.). She diagnosed the claimant with a "[h]erniated nucleus pulposus⁴ at L4-5, right more so than the left, which has been aggravated by his recent injury." (Id.). Dr. Hieb instructed the claimant to remain on bed rest for one week and off work for three weeks. (Id.).

The claimant's first visit in the record with neurosurgeon F. Donald Cooney, M.D., occurred on May 10, 1993. (R. 111). During this neurosurgical consultation, Dr. Cooney observed that the claimant's MRI scan demonstrated a herniated disc to the right with a free fragment at L4-L5. (Id.). Dr. Cooney advised the claimant to consider surgery. (Id.).

On May 13, 1993, the claimant underwent his first surgery: a laminectomy⁵ and a diskectomy⁶ in his lower back by Dr. Cooney at the L4-L5 region. (R. 70-71, 97). The claimant's preoperative diagnosis was a ruptured right L4-L5 disk (counting from the bottom) or L5-S1 (counting from the top). (Id.). Dr. Cooney performed a foraminotomy⁷ over the nerve root, exposing a ruptured fragmented disk posteriorly. (Id.). Then, the nerve root was retracted medially and the free fragment was removed. (Id.). A surgical pathology report by Usha Punja, M.D., on May 14, 1993, revealed that the fibrocartilage removed during surgery showed mucoid degeneration.⁸ (R. 98).

The claimant next saw Dr. Cooney on May 28, 1993, two weeks after his surgery. (R. 110). Dr. Cooney noted that the claimant's incision was healing well and the claimant was walking, but straight-legraising was negative. (Id.). The claimant was given permission to return to work after Memorial Day, but was told to use a back support and to do exercises, such as swimming. (Id.).

On June 7, 1993, Dr. Cooney noted that the claimant had returned to work, was pulling motors from compressors, and was driving. (R. 109). The claimant complained of some increased low back pain, but stated that he did not have any leg pain. (Id.). Dr. Cooney opined that the claimant was "doing quite well" three weeks after surgery and recommended that he avoid heavy lifting. (Id.).

On July 9, 1993, the claimant saw Dr. Cooney and stated that he did not have any pain on that day. (R. 108). The claimant's examination showed negative straight-leg-raising bilaterally, no other changes, and that his weakness had not cleared. (Id.). Dr. Cooney opined that the claimant was doing well, but stated that he "still has limitation of his activities of this disc. He has periodic radicular pain, limitation of motion with residuals of his foot drop." (Id.). Dr. Cooney reported that the claimant had reached his maximum improvement and that his residuals of 15% of his body were permanent.⁹ (Id.).

The claimant first visited orthopedic surgeon Robert Smith, M.D., on September 7, 1993 for a second opinion. (R. 154). Dr. Smith noted that the claimant had occasional mild spasm which cleared after treatment and diagnosed the claimant with residual back pain following a diskectomy. (R. 155). Dr. Smith agreed with Dr. Cooney's assessment of 15% impairment, however, Dr. Smith opined that the disability¹⁰ may be greater. (R. 154). He recommended another MRI scan, back therapy, and a functional capacity examination and instructed the claimant to work on light duty status. (R. 155).

On September 9,...