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Awan v. Berryhill

United States District Court, E.D. Virginia, Norfolk Division

February 9, 2018

SAIF AWAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MAGISTRATE JUDGED REPORT AND RECOMMENDATION

          DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Saif Awan ("Awan") seeks judicial review of the Acting Commissioner of Social Security's ("Commissioner") decision denying his claim for disability insurance benefits ("DIB") and supplemental security income ("SSI") of the Social Security Act. Awan claims that the Administrative Law Judge ("ALJ") improperly analyzed medical evidence, failed to give appropriate weight to the findings of a treating physician as required by Federal Regulations, and erred in finding he was not disabled. This action was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. §§ 636(b)(1)(B), and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons stated below, the undersigned recommends that the final decisions of the Commissioner be affirmed.

         I. PROCEDURAL BACKGROUND

         Awan filed an application for DIB and SSI on July 25, 2012, alleging a disability onset date of May 29, 2012. (R. at 15). The Commissioner denied his application initially, (R. at 103), and upon reconsideration, (R. at 110). Awan requested an administrative hearing, which occurred on September 29, 2015. (R. at 31).

         An ALJ determined that Awan was not disabled within the meaning of the Social Security Act, and denied his claim for benefits. (R. at 12) . The Appeals Council declined to review the ALJ's decision, (R. at 1), making the ALJ's decision the final decision of the Commissioner. Awan filed this action seeking judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g). This case is now before the court in order to resolve the parties' cross-motions for summary j udgment.

         II. FACTUAL BACKGROUND

         Awan was 43 years old at his alleged onset date. (R. at 23). He completed high school and had previously worked as a cashier and cab driver. (R. at 192) . He continued to work periodically during his claimed disability. (R. at 34-37, 367) . In describing his physical activity during the application process, Awan stated that he helped his children with homework, cared for himself, assisted with housework such as laundry and vacuuming. He drove, shopped in stores, handled his finances, and socialized with friends. (R. at 207, 213).

         The ALJ found Awan had only one severe impairment, degenerative disc disease. His arguments in this court do not contest this aspect of the ALJ's findings. As a result, the following review of his medical record is limited to his treatment for that condition.

         Awan first treated for lumbar pain with Dr. Theresa Jackson of Virginia Orthopaedic and Spine Specialists. (R. at 366-67). Dr. Jackson noticed that Awan exhibited pain with forward flexion of the cervical spine and tightness across his trapezius. Awan was markedly tender to palpation in the lower lumbar region. Id. In addition she observed decreased range of motion, decreased sensation in the lower extremities and a positive straight leg raising test. Lumbar spine x-rays revealed mild scoliosis and mild disc space narrowing at L4/L5, as well as other degenerative changes. She prescribed medication and administered a steroid injection. The following month, Dr. Jackson continued to observe tenderness over the lumbar spine and a positive straight leg raising test, but noted that Awan had otherwise improved. An MRI reviewed that day revealed a disc bulge of mild facet arthropathy, broad based disc protrusion, an annular tear, moderate spinal stenosis and nerve root displacement. (R. at 365, 798-99). Dr. Jackson recommended physical therapy and increased Awan's medication. (R. at 365).

         Awan apparently attended physical therapy at In Motion Physical Therapy between December 20, 2012, and January 29, 2013. At the conclusion of his therapy his therapist reported he had "shown slow functional gains with PT." (R. at 432) . He reported his pain was a 6.5 out of 10, but other goals of therapy were not met and he was discharged as a result of lack of appreciable progress towards goals. Id. On January 29, 2013, Awan returned to Dr. Jackson complaining of pain and lower extremity weakness. He exhibited signs of pain but his straight leg raising test was negative and he had intact sensation. Dr. Jackson noted that he continued to work as a cab driver and the constant sitting caused him pain. (R. at 3 63). She prescribed a TENS unit.

         On March 19, 2013, Dr. Jackson continued to note tenderness on palpation of Awan's lumbar spine, a positive straight leg raising test and 4/5 strength. She revised Awan's medications. The following month, Awan reported improvement with the injections and medication. (R. at 388). When Awan's complaints of pain continued to the summer of 2013, Dr. Jackson recommended additional facet injections and eventually a radiofrequency ablation. (R. at 4 05-06) . When he returned to Dr. Jackson on October 10, 2013, he reported "some mild improvement" after the RF procedure, but still complained of 10/10 pain with medication. (R. at 795) . He was tender to palpation on the lower lumbar spine and had difficulty transitioning from a sit-to- stand but still maintained a 4/5 strength in the lower extremities.

         In August 2013, Awan consulted with Dr. Donald Bernardini, a pain management specialist. He observed that Awan walked with "an antalgic gait," had a reduced lumbar range of motion, and tenderness in both the thoracic and lumbar regions. (R. at 416) . Otherwise, Dr. Bernardini recorded normal neurologic findings. He diagnosed chronic pain syndrome, lumbosacral spondylosis without myelopathy, degeneration of the lumbosacral intervertebral disc, and lumbar spinal stenosis without neurogenic claudication. (R. at 416-17).

         On December 3, 2013, Awan consulted with Dr. Mark Kerner of the Virginia Orthopaedic and Spine Center. He observed positive straight leg raising tests and pain with range of motion in the spine, but essentially normal strength, reflexes, normal sensory deficits, a normal gait, and normal upper extremities. (R. at 790) . He diagnosed probable Discogenic Pain Syndrome, noting that Awan was "hyper emotive." (R. at 791).

         In February 2014, Awan returned to Dr. Jackson, who administered additional injections and referred him for a second MRI. The MRI revealed multi-level spinal stenosis with severe neural foraminal narrowing. (R. at 779) . An EMG also revealed SI radiculopathy. Dr. Jackson revised Awan's medication. (R. at 777).

         In May 2014, Awan returned to the pain management specialist, Dr. Bernardini, who noted intact motor testing results, a negative straight leg raising test, normal reflexes and normal sensation. (R. at 526, 557-58). He recommended another radiofrequency ablation. (R. at 558).

         In June 2 014, Dr. Kerner determined that Awan was a surgical candidate for a lumbar laminectomy. (R. at 678-96, 773-74). Following the surgery Awan initially reported that his back pain had improved but he continued to experience right leg pain. (R. at 771) . On August 26, 2014, a few months following surgery, Awan demonstrated normal strength, sensation and reflexes, but continued to complain of severe back and radiating leg pain. (R. at 770).

         Dr. Kerner noted that "while this pain has improved since surgery, it is still quite significant, and he appears to be quite disabled." <R. at 770). He scheduled a follow-up visit in six weeks hoping that as things stabilized and healed he would feel better. Dr. Kerner wrote that he was "concerned about the magnitude of his pain with a paucity of objective findings." (R. at 770) . On October 7, 2014, Dr. Kerner followed up again, noting "on an objective basis, he is neurologically intact," but Awan continued to complain of pain, only minimally improved from his surgery. The MRI revealed "no continuing stenosis," just mild inflammatory changes consistent with previous surgery. X-rays demonstrate no gross instability, though degenerative changes at L4/L5, L5/Sl. (R. at 764).

         Awan's last recorded visit with Virginia Orthopaedic and Spine Specialists involved a consult with LaTara C. Harris, FNP, on April 1, 2015. NP Harris noted that Awan complained of increased lower back pain over the last several days as a result of shifting in his bed while he was asleep. She observed he had 4/5 strength to bilateral lower extremities, a negative straight leg raising test, but observed tenderness at primarily L4/L5. He was full weight bearing with a non-antalgic gait. (R. at 762) . She administered a Toradol injection as well as Medrol dose pack and scheduled a return visit.

         In addition to Awan's treating physicians, the ALJ also considered evidence from two Agency physicians who reviewed the medical records and offered opinions about his physical limitations.[1] State Agency Physician Joseph Familant, M.D. reviewed Awan's medical record in May 2013 and concluded that he could lift and carry ten pounds, stand and walk two hours per day and sit up to six hours per day. (R. at 68-70) . Dr. Familant also opined that Awan should avoid climbing and only occasionally stoop, kneel, crouch or crawl. Id. During the reconsideration review in February 2014, a second Agency Physician, Robert Keely, M.D., reached essentially the same conclusions. (R. at 97-98) .

         At the hearing on his claim for benefits, Awan testified that he was working 2 0-25 hours per week as a cashier or supervisor in a convenience store which also offered take-out meals. (R. at 34-35) . He stated that he stopped working after his surgery and then returned in May 2015. (R. at 37). The ALJ observed that his earnings in both 2 012 and 2013 amounted to substantial gainful activity (SGA).

         Awan testified that he lived with his wife and five children. He stated that he took naproxen, oxycodone, Advil, and morphine for his pain, but was able to drive. He sometimes shopped with his wife, but stated all other housework, including cooking, laundry, and vacuuming were done by his wife or children. (R. at 41). On examination by his attorney he stated that he managed his part-time work by relying on co-workers and taking pain medication. (R. at 45-46) . He described the various medical treatments to his back, concluding that none provided lasting relief. (R. at 44-45).

         III. STANDARD OF REVIEW

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In reviewing a decision of the Commissioner denying benefits, the court is limited to determining whether the decision was supported by substantial evidence on the record and whether the proper legal standard was applied in evaluating the evidence. 42 U.S.C. &sect; 405(g); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 4 02 U.S. 3 89, 401 (1971) (quoting Consol. Edison Co. of New York v. NLRB, 305 U.S. 197, 229 (1938)). It ...


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