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Watt v. Colvin

United States District Court, S.D. Indiana, Indianapolis Division

March 26, 2015

JULIA K. WATT, Plaintiff,
CAROLYN W. COLVIN Acting Commissioner of the Social Security Administration, Defendant.



Plaintiff, Julia K. Watt ("Ms. Watt"), requests judicial review of the decision of Defendant, Carolyn W. Colvin, Commissioner of Social Security Administration ("the Commissioner"), denying Ms. Watt's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). For the reasons set forth below, the Court REMANDS the Commissioner's decision for additional proceedings consistent with this opinion.


A. Procedural History

On April 21, 2010 and May 11, 2010 respectively, Ms. Watt filed applications for DIB and SSI under the Social Security Act ("the Act"). She alleged disability commencing November 24, 2007 due to a back injury, spinal diseases, spinal malformations, chronic pain, and fibromyalgia. Her initial application was denied on August 10, 2010, and her application on reconsideration was denied on November 29, 2010. On March 29, 2012, Ms. Watt, accompanied by her attorney, appeared and testified at a hearing before an Administrative Law Judge, James Norris ("the ALJ"); two medical experts and a vocational expert also testified. On April 6, 2012, the ALJ denied the application for disability, and the Appeals Council subsequently denied review, making the decision the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. Ms. Watt filed this civil action, pursuant to pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), for review of the agency's decision.

B. Factual Background

Ms. Watt was born in 1978; she was 29 years old on her alleged onset date and 33 years old at the time of the ALJ's decision. Ms. Watt completed high school and received a certification in proprietary communications systems, software processes, and design. She has relevant work experience in the computer software field as a senior engineer in telecommunications, help desk/customer service representative, and as an account executive at telecommunication companies.

1. Facts Before the Alleged Onset Date of November 24, 2007

Ms. Watt has a long medical history of back surgeries and chronic pain. In 1991, she had Harrington rods placed due to scoliosis. In 1997, one of the rods dislodged and she had it removed and had a fusion from T6 to L4 with grafting from her hipbone. In 2000, Ms. Watt suffered a car accident when a semi-tractor trailer struck her head-on. Due to her injuries, her spine was fused from L4-5 and L5-S1 and she underwent an implantation of posterior instrumentation from T12 through her lumbar region to her sacrum. In 2002, Ms. Watt underwent electrotherapy to relieve her pain. From 2002 to 2004, she went through approximately thirty spinal injections.

In February 2004, after Ms. Watt experienced back pain and instability from her L4-5 and L5-S1 fusions, she went to the hospital for another spinal fusion from L4 to S1. She underwent lumbar interbody fusion surgeries at L4-5 and L5-S1 and had instrumentation placed from T11 to the sacrum. Thereafter, she experienced hip pain due to an incorrectly positioned screw at L2, which was subsequently corrected; she then had instrumentation placed from T10 to the sacrum. Ms. Watt was released from the hospital; however, after her pain continued, she was started on Methadone and had her MS Contin dosage increased.

Ms. Watt met with orthopedic surgeon Jeffrey Kleiner, M.D., ("Dr. Kleiner") in August 2005. Dr. Kleiner noted that Ms. Watt continued to have symptoms of pain in her lower back and buttocks area and pain radiating into her anterior thighs; further, he indicated that Ms. Watt reported that she was able to sit comfortably for about twenty minutes, stand for five minutes, and walk short distances. In September 2005, Dr. Kleiner and another doctor performed the following procedures: (1) removal of posterior segmental Legacy instrumentation and Liberty crews; (2) exploration of fusion; (3) posterior lumbar osteotomy; (4) L3-L4 anterior lumbar discectomy; (5) L3-L4 osteotomy; (6) L3-L4 anterior lumbar spinal fusion with local bone graft; (7) L2-L5 posterior lumbar spinal fusion with posterior fusion cages with Allograft iliac crest, bone morphogenic protein. (Filing No. 18-6, ECF p. 6).

Vocational Rehabilitation Consultant Patrick Orbino, MA, CRC interviewed Ms. Watt and, in a report from August 30, 2006, wrote that Ms. Watt said that she continued to have constant, severe low back pain, left hip pain, right hip discomfort, and right lower extremity numbness. She continued to take MS Contin and Fentanyl (Actiq). She said she could sit for only about 20 minutes or stand for only a few minutes before her pain dramatically increased. She often had to lie down during the day to help control her pain.

After reviewing an MRI taken in January 2007, Dr. Kleiner recommended facet blocks. Ms. Watt went to Dr. Vilims on February 9, 2007, for C5-6 and C-7 intra-articular facet injections to determine how much, if any, of her pain was facet related. He noted that Ms. Watt was considering the option for a spinal cord stimulator to deal with her pain. When Dr. Vilims saw Ms. Watt on July 24, 2007, he diagnosed (1) post-laminectomy syndrome status post T11 through S1 fusion and (2) cervical degenerative disc disease, cervical canal stenosis, and cervical radicular pain. He added that Ms. Watt had undergone medical surgeries with chronic postsurgical pain.

2. Facts After the Onset Date of November 24, 2007

Ms. Watt went to Red Rocks Center for Rehabilitation ("The Center") from August 20, 2007, through June 17, 2008 (R. 332-41). The Center's notes, however, are difficult to read.

On August 8, 2008, Ms. Watt met with pain management specialist Vishwajit Brahmbhatt, M.D. ("Dr. Brahmbhatt"). Dr. Brahmbhatt wrote that despite all of her surgeries, Ms. Watt continued to have a lot of pain. Most of her pain, he said, was in the lower back, with stiffness and spasm, and radiated down both legs. During the examination, Ms. Watt was able to walk without any support and was able to sit comfortably without any difficulty. She had "[g]rossly restricted" lumbosacral ranges of motion. (Filing No. 18-7, ECF p. 48.) Dr. Brahmbhatt diagnosed (1) post-lumbar laminectomy syndrome, (2) chronic arachnoiditis, and (3) chronic cervicalgia, "most probably secondary to herniated disk." (Filing No. 18-7, ECF p. 48-49.) Ms. Watt's options for treating her back pain were extremely limited. Dr. Brahmbhatt thought her best option would be to continue with medical management, including a narcotic "which she probably would need on a long-term basis." (Filing No. 18-7, ECF p. 49.) He recommended a cervical epidural steroid injection for her neck pain. Dr. Brahmbhatt administered an interlaminar epidural steroid injection at C6-7 on August 11, 2008. (Filing No. 18-7, ECF p. 50.) Ms. Watt followed up with Dr. Brahmbhatt one month later and reported that she did not have any significant improvement in her symptoms from the injection and continued to use Opana and Actiq. She denied any significant side effects from her medications. Dr. Brahmbhatt wrote that Ms. Watt "will need some kind of narcotic coverage on an ongoing long-term basis" and had a detailed discussion with her about all possible side effects of long-term narcotics. (Filing No. 18-7, ECF p. 58.)

Dr. Brahmbhatt saw Ms. Watt on April 3, 2009, and noted that she had stiffness and loss of movement because of the extensive fusion from T6 to S1. She had been treated "with very high dosage[s] of different narcotics that include[d] morphine, Dilaudid, Fentanyl, Oxycodone, and Lortab, " and nothing worked. (Filing No. 18-7, ECF p. 56.) She rated her pain at about a 6 to 7 on a 0-to-10 scale. She also had cervicalgia. Ms. Watt was able to walk without any support and was able to sit comfortably in a chair. Ms. Watt had no range of motion in the lumbar spine because of her fusion. Dr. Brahmbhatt diagnosed (1) chronic lower back pain syndrome with a history of previous back fusion that extended from T6 to S1 with multiple other back surgeries, and (2) history of high dosage of narcotic usage. (Filing No. 18-7, ECF p. 56.) Dr. Brahmbhatt spent about forty-five minutes discussing with Ms. Watt his concerns about her reliance on Actiq and warned her that Actiq is approved only for cancer breakthrough pain. He said that an intrathecal pump would better serve her. His long-term plan for Ms. Watt was to "take her off of the short-acting medication and try to manage her pain with long-acting pain killer without any potent drugs like Actiq." (Filing No. 18-7, ECF p. 56-57.)

Ms. Watt returned to Dr. Brahmbhatt in late April 2009 and said she was leaning towards having a pain pump inserted (Filing No. 18-7, ECF p. 54). She rated her pain about an 8 or 9. Three months later, Ms. Watt told Dr. Brahmbhatt that her pain was about a 6 or 7. Dr. Brahmbhatt was now having reservations about a pain pump. "Because of the extensive fusion, " he wrote, "I was not sure whether we would be able to get the needle into the subarachnoid space or not. I reviewed the last x-ray, which showed a little bit of opening or possible space between L5 and S1 on the right hand side." (Filing No. 18-7, ECF p. 54.) Dr. Brahmbhatt hoped to access the subarachnoid space through that opening. (Filing No. 18-7, ECF p. 54.) He and Ms. Watt agreed to the pain pump, pending approval from Ms. Watt's insurance company. Dr. Brahmbhatt diagnosed (1) chronic back pain syndrome and (2) laminectomy syndrome with possibility of chronic arachnoiditis. He renewed Ms. Watt's prescriptions for Opana and Actiq.

Ms. Watt first met with general practitioner Thomas Mabel, M.D. ("Dr. Mabel") on January 5, 2010. She met with Dr. Mabel another twelve times during the year of 2010; his notes mentioned Ms. Watt's chronic pain. Ms. Watt was receiving other treatment and examinations in 2010 as well. On January 26, 2010, an MRI of her cervical spine showed that at C5-6 "a left paracentral protrusion partially effacing the anterior subarachnoid space and causing minimal cord flattening and a mild central stenosis. Left sided uncovertebral spurring [was] noted causing mild to moderate left sided foraminal narrowing." (Filing No. 18-7, ECF p. 64). At C6-7, the MRI showed "a large left paracentral disc extrusion causing asymmetric left ventral cord flattening and a moderate central stenosis. There [was] significant compromise of the proximal aspect of the left neural foramen." (Filing No. 18-7, ECF p. 64).

Two days later, Ms. Watt saw neurosurgeon Thomas Leipzig, M.D. ("Dr. Leipzig"). Dr. Leipzig's notes discussed Ms. Watt's significant history of multiple surgeries and the subsequent fusions, revisions, and complications related to the procedures. Dr. Leipzig wrote that Ms. Watt had chronic pain syndrome.

The next day, anesthesiologist and pain management specialist Derron Wilson, M.D., administered a left C7 selective nerve root injection. The procedure did not change Ms. Watt's pain. On February 9, 2010, Dr. Leipzig performed an anterior interbody fusion and an anterior discectomy for decompression at C6-7. Although the MRI also showed abnormalities at C5-6, Dr. Leipzig decided to leave C5-6 alone for the time being. "Given her young age and multiple complications following multiple lumbar surgeries, " Dr. Leipzig stated, "it was appropriate to just decompress the symptomatic level." (Filing No. 18-7, ECF p. 60). During surgery, Dr. Leipzig found "one very large disk fragment [at C6-7], which came out." (Filing No. 18-7, ECF p. 61). He also found another fragment of disc "that was lodged under the C6 vertebral body, impinging on the root sleeve. This was truly wedged in and [they] removed it...." (Filing No. 18-7, ECF p. 61). On discharge, Ms. Watt had good relief of her severe arm pain.

On July 12, 2010, Eric Levine, M.D., ("Dr. Levine") examined Ms. Watt at the request of the Disability Determination Bureau. Dr. Levine wrote that Ms. Watt "can maintain a shuffling gait without the use of an assistive devi[c]e." (Filing No. 18-8, ECF p. 29). Her posture was normal. Her ranges of motion were not; they were limited, especially in the lumbar spine. Ms. Watt was able to walk on her heels and toes, and was able to tandem walk. She had to hold on to the examination table to squat and could only do a half squat. Her right hand grip was 4/5 and her sensation was normal to light touch, except for a fifty percent loss of sensation down her posterior right leg and right hand.

Disability Determination Bureau physician J. Sands, M.D., ("Dr. Sands") reviewed Ms. Watt's case on July 19, 2010. Dr. Sands' primary diagnosis was spinal fusion. Dr. Sands found that Ms. Watt could lift and carry up to 20 pounds occasionally and 10 pounds frequently, stand and/or walk at least two hours in an eight-hour day, and sit for about six hours in an eight-hour day. Dr. Sands also endorsed several postural limitations. Finally, Dr. Sands wrote that Ms. Watt was "credible for back pain and dec[reased] [range of motion]." (Filing ...

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