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McGee v. Saul

United States District Court, N.D. Indiana

July 22, 2019

JERRY MCGEE, Plaintiff,
v.
ANDREW SAUL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          HOLLY A. BRADY JUDGE

         Plaintiff Jerry McGee seeks review of the final decision of the Commissioner of the Social Security Administration (Commissioner) denying his application for disability insurance benefits and supplemental security income. Plaintiff alleges that he has been disabled since October 2013 due to central core syndrome, cervical spine stenosis, cervical radiculopathy, lumbar spine stenosis, leg weakness, shoulder pain, and asthma.

         BACKGROUND

         A. Procedural History

         On January 23, 2014, Plaintiff filed for disability insurance benefits and Supplemental Security Income, alleging that he had been disabled since October 25, 2013. The Commissioner denied Plaintiff's applications initially and upon reconsideration. An administrative hearing was held on May 6, 2016, at which Plaintiff and a vocational expert (VE) testified. An Administrative Law Judge (ALJ) issued a decision on July 21, 2016, finding that Plaintiff was not disabled. The Appeals Council denied Plaintiff's request for review, thus making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. This appeal followed.

         B. Medical Evidence Summary

         Plaintiff worked for many years as a tree trimmer. His symptoms began when he was cutting a tree with his arms positioned above his head. Plaintiff went to the emergency room on October 14, 2013, complaining of bilateral should and arm pain, swelling, and bilateral hand numbness. Shortly thereafter, he was diagnosed with central cord syndrome and cervical disc degeneration. An MRI showed significant spinal cord impingement at ¶ 5-6 and C6-7 that was consistent with central cord syndrome. On October 29, 2013, Plaintiff underwent emergency C3-4 discectomy and anterior fusion surgery. A cervical spine x-ray on October 29, 2013, showed moderate cervical spondylosis and post-operative changes at ¶ 3-4. At discharge on October 31, 2013, Plaintiff still had numbness and tingling in his feet. His left hand was weaker than his right hand, but it had improved since before surgery.

         On November 14, 2013, Plaintiff had a post-operative visit with Dr. R. Filipowicz, who noted he had excellent strength in his arms. He was walking with a limp and his legs were still weaker. He still showed signs of spasticity. Dr. Filipowicz commented that he had a significant amount of stenosis that would likely get worse and he would most likely need more surgery. Dr. Filipowicz's December 17, 2013, notes reference good recovery, as well as significant lumbar spondylosis and foraminal involvement at multiple levels.

         On October 7, 2014, Plaintiff attended a physical exam at the request of the Disability Determination Bureau. He had a cane but did not use it during the exam. Plaintiff complained of swelling in right arm and weakness of both arms. He complained of his right knee swelling and giving out, and of being off balance. On exam, he had bilateral positive Tinel's sign. His right grip was weak. The reflexes in his ankles were absent. He was found to have decreased range of motion in the lumbar spine, bilateral shoulders, and bilateral knees. Plaintiff did not have difficulty getting on and off exam table. His ability to squat and his tandem gait were normal.

         On July 14, 2015, Plaintiff saw Dr. Maya. He complained of neck pain and reported that he could not turn his neck. He stated that he had not seen a surgeon because he did not have insurance. He was diagnosed with asthma and cervicalgia. On exam, he had a stiff neck with dorsiflexion and had pain with range of motion. (R. 437-39.) A cervical spine x-ray on July 29, 2015, showed prominent anterior osteophytes in the mid to lower cervical spine with associated slight loss of disc height at ¶ 6-7. It also showed the fusion at ¶ 3-4. (R. 443.)

         On August 20, 2015, Plaintiff saw Dr. Filipowicz complaining of neck pain and numbness and tingling in his neck and lower back. It happened more when he was laying down at night. He reported that his pain had increased in his shoulders and he was having some gait dysfunction. He had no obvious gait disturbance, but he could not walk one foot in front of the other. He had decreased range of motion in his neck because of pain on rotation and extension. Moving his neck also increased the tingling in his hands. His strength in his upper extremities was normal. The reflexes in his lower extremities were slightly diminished. (R. 394-95.)

         On September 21, 2015, Plaintiff saw Dr. Filipowicz. He reported that he had pain in his neck that radiated into his shoulders and that his symptoms were worsening. An MRI showed that he had a significant amount of stenosis at ¶ 5-6 and C6-7 and that there were some changes in the cord. Additional surgery was discussed. (R. 381-83.) On October 19, 2015, Plaintiff saw Dr. Filipowicz. He complained of neck pain that radiated into his shoulders. Dr. Filipowicz commented that he had reviewed an MRI that showed Plaintiff had disease at ¶ 5-6 and C6-7. (R. 513.)

         Dr. Maya saw Plaintiff on November 13, 2015. He reported pain with range of motion of the neck and tenderness with palpation of the cervical spine. He had pain with palpation of the lower cervical spine and trapezius. He had positive trigger points on his trapezius. His arm strength in his right arm was 3/5. In his left arm it was 4/5. His grip was 3/5 bilaterally. He had decreased range of motion with both shoulders and neck pain with range of motion of the shoulders. He had difficulty getting up from the seated position. He had a shuffling gait after getting up from a chair, but then it returned to a normal, albeit slow gait. He had to adjust his position numerous times due to neck pain. (R. 459-61.)

         On November 17, 2015, Dr. Maya completed a medical source statement about Plaintiff's ability to sustain work related activities. Dr. Maya noted that Plaintiff had constant pain, numbness and tingling of the hands, loss of muscle mass, and increased weakness of upper extremities. He had decreased range of motion in the cervical spine, reduced grip strength, impaired sleep, tenderness, and trigger points. His pain often interfered with his attention and concentration due to its severity. He should sit no more than one hour and would need to have the opportunity to walk about for less than fifteen minutes during that hour of sitting. He could sit up to five hours in a work day. Plaintiff could stand or walk about for less than fifteen minutes before needing to sit or lie down. He would need to sit for less than fifteen before returning to standing or walking about. He could stand or walk for three hours in a work day. Dr. Maya opined that Plaintiff could lift and carry up to ten pounds frequently and twenty pounds occasionally. He should never stoop, look down at a table or desk (forward flexion of the neck), or look upward towards the ceiling (backward flexion). He should only occasionally rotate his neck. He could use his hands only occasionally for reaching or handling. Dr. Maya stated that he needed a cane for walking and standing on all surfaces. According to Dr. Maya, Plaintiff had good and bad days and would likely miss more than three days a month. (R. 445-52.)

         Plaintiff saw Dr. Filipowicz on January 6, 2016, reporting that he had constant neck pain that he rated at a level 7 out of 10. His pain radiated from his neck down into his shoulders and his fingers were numb and tingling. He was having headaches and neck pain. Exam showed reasonable strength in his arme, but significant headaches and neck pain. Plaintiff had tingling in both fingers and at times his arm would become weak. A repeat MRI was ordered. Dr. Filipowicz noted that Plaintiff would most likely need surgery at ¶ 5-7. (R. 506.)

         On February 17, 2016, Plaintiff saw Dr. Filipowicz about his neck pain and shoulder pain. Dr. Filipowicz noted that Plaintiff had stenosis throughout the whole spine. Plaintiff noted that he wanted to maintain conservative management for now and not proceed with the surgery, but it might be required in the future. (R. 499.)

         C. Plaintiff's Hearing Testimony

         Plaintiff testified that he stopped working because he could no longer raise his arms. After surgery, he returned to work at the tree trimming company, but only in the shop and only until the season ended. In the shop position, he was allowed to sit and stand at will.

         Plaintiff stated that he could no longer work due to numbness in his hands and legs, constant pain in his neck and shoulders, and impaired balance. He could sit for about an hour before having to move around, but his neck would hurt. He might be able to stand for 30 to 40 minutes. Plaintiff testified that he could only walk one block before he would need to sit down. He loses his balance and falls an average of three times per month. The neck pain is severe, and requires that he alternate between laying down, standing up, and sitting. His most comfortable ...


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