Makuch v. Halter, Civ. A. No. 01-10060-PBS.
| Decision Date | 31 October 2001 |
| Docket Number | Civ. A. No. 01-10060-PBS. |
| Citation | 170 F.Supp.2d 117 |
| Parties | John P. MAKUCH, Plaintiff, v. William A. HALTER, Acting Commissioner of Social Security Defendant |
| Court | U.S. District Court — District of Massachusetts |
Michael James Kelley, Boston, MA, for Plaintiff.
Anita Johnson, United States Attorney's Office, Boston, MA, for Defendant.
Pursuant to 42 U.S.C. § 405(g), Plaintiff John Makuch, who suffered a back injury at work, seeks review of the decision denying his application for Social Security Disability Insurance Benefits. He argues: (1) that the Administrative Law Judge ("ALJ") violated the treating physician rule by disregarding the opinion of his treating physician; (2) that the ALJ improperly evaluated his subjective complaints of pain; and (3) that the ALJ improperly applied the grid because of his non-exertional impairment of pain. For the reasons stated below, the Court DENIES defendant's motion to affirm the decision of the Commissioner and ALLOWS plaintiff's motion to remand.
The administrative record contains the following facts. Claimant John Makuch is a forty-two year old married man with a 12th grade education. For seventeen years, he worked as a first class utility man for the New England Power Service Company. (Tr. 31.) Makuch first injured his back in a work-related accident on August 19, 1998, when he tried to pick up a heavy valve. Working the rest of the week, he then re-injured his back at work on August 27, 1998. Medical director Dr. Charles Lutton, who treated Makuch that day, reported to Makuch's supervisor that Makuch complained of "pain in the midline of the back about L4 with minimal to no associated findings." (Tr. 211.)
On September 28, 1998, Makuch first saw his treating physician, Dr. James Leffers, for this injury. Leffers, a board certified orthopedic surgeon, identified "minor L5 disc narrowing" in an x-ray. He diagnosed low-back strain, and made a referral to a physical therapist. (Tr. 193.) Leffers prescribed Vicodin for Makuch's sleep problems, and told him to stay out of work. Subsequent treatment notes indicate substantial improvement, until claimant aggravated his injury by lifting a motorcycle on November 13, 1999. At that time Leffers believed that "therapy [is] going to work with him," but because of complaints of sciatica, ordered a magnetic resonance imaging exam ("MRI"). The MRI showed a minor disk herniation of L4-5 and a small focal bulge at L5/S1. (Tr. 194). Because plaintiff was not improving despite seventeen weeks of physical therapy, Leffers referred claimant to a neurologist, Dr. Ronald P. Hantman. Hantman performed a lumbar myelogram to determine the significance of the herniation. Based on a myelogram dated December 31, 1998, and a CT scan, Hantman reported a minimal bulging disc at L4-5 and S1, but added that the significance of this finding was questionable. (Tr. 197.)
Dr. Leffers continued to treat Makuch on approximately a monthly basis. On January 13, 1999, he recommended that Makuch restrict his personal weight training. (Tr. 198.) On February 5, 1999, Dr. Leffers completed a Physical Capacities Evaluation which indicated that Makuch could not sit, stand, or walk, although he occasionally could lift up to fifty pounds and carry up to twenty-five pounds. The evaluation stated that claimant could not crawl, climb or reach, and could bend and squat only occasionally. (Tr. 215.) Leffers next recommended that Makuch undergo epidural steroid injections, but Makuch reported a worsening of his symptoms after the injections. (Tr. 199.) Between March and September 1999, Leffers indicated no change in claimant's condition and continued to describe him as "disabled." (Tr. 200-210.)
On March 25, 1999, Makuch underwent an electromyograph ("EMG") recommended by Dr. Hantman. Dr. Andrew Mazur, who performed the EMG, reported that the physical exam showed Makuch had a normal gait, was able to heel/toe walk without difficulty, and did not show signs of muscle atrophy or asymmetry. He also noted "significant tenderness" in the lumbar spine. Dr. Mazur reported "essentially normal" EMG findings, and recommended physical therapy to improve strength, flexibility and conditioning. (Tr. 152; 153.)
In connection with his Worker's Compensation claim, at the request of the state's insurance carrier, Makuch was examined by orthopedic surgeon Dr. Gilbert Shapiro, on April 6, 1999. Makuch complained to Shapiro that he couldn't sleep because of the pain. Shapiro conducted a physical exam and reviewed the records of Makuch's treatment up to that date. Shapiro diagnosed "acute lumbosacral strain on a pre-existing degenerative lumbar disc disease at multiple levels." (Tr. 158.) He reported degenerative spinal changes that render Makuch "partially disabled." Id. Shapiro stated that Makuch, (Tr. 158.) Shapiro noted that Makuch had attended approximately 60 physical therapy treatments, with little or no improvement. Pointing out that Makuch had reached an end result, Dr. Shapiro recommended light-duty work with lifting limited to about 40 pounds. (Tr. 156-58.)
On April 7, 1999, Dr. Leffers reported that Makuch's mid back and upper lumbar region discomfort was no better and prescribed Percocet and a back brace. He reported that Makuch suffered episodes of sharp disabling pain and was unfit for standing or seated work. On May 20, 1999, Dr. Leffers reported to defendant's medical examiners that Makuch was unfit for productive work on a part time or full time basis for the near future. On November 10, 1999, Dr. Leffers again x-rayed claimant's spine. He stated that Makuch may suffer from some L5 disc disease, and suggested a discogram. Subsequent notations indicate no improvement in claimant's complaints of chronic, low back pain. (Tr. 210.) Leffers continued to prescribe Vicodin and Flexeril.
On July 12, 1999, Makuch underwent a physiatric1 exam by Dr. Joseph J. Doerr, on referral from Dr. Leffers. The physical exam revealed "good strength and functional range of motion at all distal pivots ... moderate restriction around bilateral hips ... severe restriction in lumbar movements in all directions ... [and] some restriction in upper back with bending, twisting, etc." His final assessment indicated "chronic mechanical low back pain, probable myofascial pain with contracture from a work related incident on 08-14-98." He recommended that Makuch attempt a return to physical therapy. (Tr. 213, 214.)
Also on July 12, the same day as Dr. Doerr's exam, Leffers provided claimant with a "Medical Assessment of Ability to do Work Related Activities." Dr. Leffers' assessment stated that chronic low-back pain severely limited claimant in his activities. According to Leffers, Makuch possessed very little capacity to sit, walk, stand, lift or carry, reach, push and pull, or handle. When asked how many hours Makuch could stand, walk or sit, he said "can't determine, very little." Leffers further indicated that Makuch could not climb, balance, stoop, crouch, kneel, or crawl. (Tr. 203, 204.)
Leffers' notes dated September 22, 1999, indicate that Makuch injured his hand lowering his motorcycle. The same entry states that "his disability is total and remains unchanged." (Tr. 210.) Also on that date, Leffers completed a second Physical Capacities Evaluation for Makuch. The evaluation indicated that Makuch could not sit, walk or stand for even an hour over the course of an eight hour work day. (Tr. 216.)
In connection with claimant's Social Security application, two non-examining medical consultants conducted residual functional capacity assessments ("RFCs") on behalf of the SSA. Dr. David Weintraub completed the first assessment on May 5, 1999. Weintraub concluded that Makuch retained the following capacities: occasional lifting of twenty pounds and frequent lifting of ten pounds, standing for six out of eight working hours, sitting for six out of eight working hours, and unlimited pushing/pulling. (Tr. 176-83.) The second assessment, conducted six weeks later by Dr. Mark Colb, indicates that Makuch could lift fifty pounds occasionally and twenty-five pounds frequently. (Tr. 185-92.)
A third non-examining physician retained by the SSA, Dr. Louis Fuchs, provided the only physician testimony at the disability proceeding. Dr. Fuchs, an orthopedic surgeon, testified as to the diagnostic testing Makuch underwent, and its results. He opined that the "small amount of pathology that these tests show normally would not be productive of huge pain." (Tr. 47.)
Vocational expert Paul Murgo, retained by the SSA, testified that Makuch possessed no transferrable skills. The ALJ posed a hypothetical question to Murgo based on Dr. Shapiro's findings. The vocational expert concluded that a claimant with the limitations described by Shapiro has the capacity to engage in the full range of light and sedentary work. The ALJ's question to the vocational expert did not incorporate claimant's allegations of pain as a possible non-exertional limitation. (Tr. 48-52.)
Claimant John Makuch filed an application for Social Security Disability Income Benefits ("SSDI") on March 12, 1999. Makuch claimed that he had been disabled since August 27, 1998 due to discogenic and degenerative disorders of the back. The Social Security Administration ("SSA") denied claimant's initial application on May 14, 1999, and again upon reconsideration on June 24, 1999. (Tr. 55, 62.)
A hearing was held on March 7, 2000, before an ALJ. Makuch was represented at this proceeding by a non-attorney advocate. (Tr. 18.) The ALL based his March 14, 2000, determination that...
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