United States District Court, E.D. Virginia, Norfolk Division
MAGISTRATE JUDGED REPORT AND RECOMMENDATION
DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE.
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
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).
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.
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
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
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
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.
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.
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.
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).
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.
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).
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).
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.
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
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. 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) .
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).
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).
STANDARD OF REVIEW
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. § 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 ...