Martinez v. Berryhill

          RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS

          Stefan R. Underhill United States District Judge

         In the instant Social Security appeal, Norberto Martinez, Jr. (“Martinez”) moves to reverse the decision by the Social Security Administration (“SSA”) denying him disability insurance benefits. Mot. to Reverse, Doc. No. 23. The Commissioner of Social Security (“Commissioner”) moves to affirm the decision. Mot. to Affirm, Doc. No. 24. Although I conclude that most of Martinez's arguments for reversal lack merit, I hold that the ALJ's determinations at step three and step five were deficient and, therefore, remand is warranted. Accordingly, Martinez's Motion to Reverse the Decision of the Commissioner (Doc. No. 23) is granted, and the Commissioner's Motion to Affirm its Decision (Doc. No. 24) is denied.

         I. Standard of Review

          The SSA follows a five-step process to evaluate disability claims. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam). First, the Commissioner determines whether the claimant currently engages in “substantial gainful activity.” Greek v. Colvin, 802 F.3d 370, 373 n.2 (2d Cir. 2015) (per curiam) (citing 20 C.F.R. § 404.1520(b)). Second, if the claimant is not working, the Commissioner determines whether the claimant has a “‘severe' impairment, ” i.e., an impairment that limits his or her ability to do work-related activities (physical or mental). Id. (citing 20 C.F.R. §§ 404.1520(c), 404.1521). Third, if the claimant does not have a severe impairment, the Commissioner determines whether the impairment is considered “per se disabling” under SSA regulations. Id. (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). If the impairment is not per se disabling, then, before proceeding to step four, the Commissioner determines the claimant's “residual functional capacity” based on “all the relevant medical and other evidence of record.” Id. (citing 20 C.F.R. §§ 404.1520(a)(4), (e), 404.1545(a)). “Residual functional capacity” is defined as “what the claimant can still do despite the limitations imposed by his [or her] impairment.” Id. Fourth, the Commissioner decides whether the claimant's residual functional capacity allows him or her to return to “past relevant work.” Id. (citing 20 C.F.R. §§ 404.1520(e), (f), 404.1560(b)). Fifth, if the claimant cannot perform past relevant work, the Commissioner determines, “based on the claimant's residual functional capacity, ” whether the claimant can do “other work existing in significant numbers in the national economy.” Id. (citing 20 C.F.R. §§ 404.1520(g), 404.1560(b)). The process is “sequential, ” meaning that a petitioner will be judged disabled only if he or she satisfies all five criteria. See id.

         The claimant bears the ultimate burden to prove that he or she was disabled “throughout the period for which benefits are sought, ” as well as the burden of proof in the first four steps of the inquiry. Id. at 374 (citing 20 C.F.R. § 404.1512(a)); Selian, 708 F.3d at 418. If the claimant passes the first four steps, however, there is a “limited burden shift” to the Commissioner at step five. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam). At step five, the Commissioner need only show that “there is work in the national economy that the claimant can do; he [or she] need not provide additional evidence of the claimant's residual functional capacity.” Id.

         In reviewing a decision by the Commissioner, the court conducts a “plenary review” of the administrative record but does not decide de novo whether a claimant is disabled. Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam); see Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam) (“[T]he reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.”). The court may reverse the Commissioner's decision “only if it is based upon legal error or if the factual findings are not supported by substantial evidence in the record as a whole.” Greek, 802 F.3d at 374-75. The “substantial evidence” standard is “very deferential, ” but it requires “more than a mere scintilla.” Brault, 683 F.3d at 447-48. Rather, substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Greek, 802 F.3d at 375. Unless the Commissioner relied on an incorrect interpretation of the law, “[i]f there is substantial evidence to support the determination, it must be upheld.” Selian, 708 F.3d at 417.

         II. Facts

         Martinez filed for Social Security benefits and supplemental security income on March 7, 2013. Applications for Benefits, Ex. 1B, R. at 148; Ex. 2B, R. at 155. In his applications, Martinez alleged a period of disability beginning April 1, 2006. Id. Martinez later amended the alleged onset date to October 16, 2011. Rep. Brief, Ex. 16E, R. at 360. Martinez alleged in his application that he suffered from “[l]umbar discus [and] bipolar” disorder. Int'l Disability Determination Explanations, Ex. 3A, R. at 94; Ex. 4A, R. at 105.

         A. Medical History

         Martinez's medical records begin with a series of charts from the Connecticut Department of Correction (“DOC”) from January 30, 1997 to August of 2008. DOC Med. Rec., Ex. 23F-24F, R. at 1025-1145. In 1999, Martinez was diagnosed with depression and post-traumatic stress disorder, for which he was prescribed Seroquel and Risperdal, as well as polysubstance abuse and major depression with psychosis. Id. at 1036-37. Martinez noted that he used heroin and alcohol while out of prison and went through multiple unsuccessful substance abuse programs. Id. at 1048.

         Treatment notes from St. Vincent's Medical Center (“St. Vincent's”) from May 19, 2009 reflect that Martinez sustained a three-inch-deep gash to his right hand while “cutting kitchen laminate during construction.” St. Vincent's Med. Rec., Ex. 16F, R. at 863. The wound was cleaned and sutured and Martinez was administered pain medication. Id. at 864. On June 2, 2009, Martinez returned to St. Vincent's with continued pain to his right hand and a “2-3 square cm of wood laminate [was] found in the space between the 4^th and 5^th metacarpals.” Id. at 854. Treatment notes reflect laceration of the ulnar nerves, which was “repaired”, but there was “no significant inflammation or infection.” Id. at 855. The wood was removed, and his hand was sutured. Id.

         The bulk of the remainder of Martinez's medical records relate to his back impairments. Martinez began complaining to treatment providers of back pain in early October 2011, when he was treated at St. Vincent's after hurting his lower back “lifting a heavy TV.” St. Vincent's Med. Rec., Ex. 1F, R. at 367-68. At the time, Martinez described his pain as a nine out of ten, with “stiffness”, “sharp” pain with motion, but with “no numbness/weakness.” Id. He was given pain medication. Id. at 368. He was next seen at St. Vincent's on October 25, 2011 with continued complaints of back pain. Id. at 374. Martinez stated that his back was “getting better” but that he moved a dresser and “threw [his] back out again.” Id. He described his pain as “moderate”, “dull aching”, but “constant”. Id. He was again prescribed pain medication and encouraged to follow up with an orthopedist. Id. at 375. He was not seen again for back pain until April 11, 2012 when he returned to St. Vincent's with complaints of back pain and traumatic arm pain. Id. at 377. Martinez's chief complaint was “bilateral arm pain”, which he noted was “severe”, that started after he was lifting rocks. Id. at 377-78. He further stated that he had “some tightness in [his] lower back with aching down the [right] upper thigh.” Id. at 378. He was given a pain medication injection as well as a prescription for oral pain medication. Id.

         Martinez was seen again at St. Vincent's on October 14, 2012 when he complained of back pain that began after “helping somebody move.” Id. at 382. He described his pain as feeling “like [a] screwdriver [was] in [his] back” and stated that the pain was “primarily on [the] right” but extends to “buttocks and left leg.” Id. at 383. He was given medication for pain and muscle spasms, as well as a steroid, and was released with a referral to an orthopedist. Id. at 384-85. He returned to St. Vincent's two days later with “severe back pain” and stated that he ran out of medication. Id. at 387. He was given more pain medication and again was given a referral to an orthopedist for “re-evaluation and further treatment.” Id. at 389. The following day, October 17, 2012, Martinez was seen by Dr. Richer at Orthopaedic Specialty Group (“OSG”) for a “pulling sensation” in his back that began when he was helping someone move. OSG Med. Rec., Ex. 2F, R. at 403. The notes from that visit reflect that Martinez had “difficulty with forward bending secondary to pain, tenderness to palpation over the lumbar paraspinals” and “negative straight leg raise bilaterally.” Id. X-rays revealed “no evidence of acute bony abnormality” and he was given a referral for physical therapy and told to follow up in six weeks if his condition failed to improve. Id. On October 21, 2012, Martinez returned to St. Vincent's with further complaints of lower back pain, which he described as ten out of ten and “spasm- like.” St. Vincent's Med. Rec., Ex. 1F, R. at 391. He was given an injection for the pain as well as refilled prescriptions for pain and muscle spasms. Id. at 393.

         Martinez was seen again at OSG on November 1, 2012 for a “[f]ollow-up lumbar strain, lumbago.” OSG Med. Rec., Ex. 2F, R. at 402. Martinez states that he exacerbated his lower back injury, which he sustained in October. Id. He stated that the pain was “localized to the low back”, and treatment notes reflect that he was in “no apparent distress” and was “ambulating with a normal gait” but had “negative straight leg raise bilaterally.” Id. He was prescribed pain medication and encouraged to use a heating pad. Id. He was given a renewed referral for physical therapy and told to follow up in four weeks if there was no improvement. Id. Martinez returned to St. Vincent's on November 21, 2012 with renewed back pain after injuring himself moving a refrigerator. St. Vincent's Med. Rec., Ex. 1F at 396-97. Martinez also reported that he fell a few times because “his right leg would give out on him.” Id. at 396. He was given an injection for pain and medication for pain and back spasm. Id. at 397-98. On November 29, 2012 he was examined at Bridgeport Hospital where X-rays revealed “minimal curvature of the lumbar spine concave to the left” and “narrowing of the intervertebral disc space at ¶ 12-L1, which suggests discitis.” Bridgeport Hosp. Med. Rec., Ex. 3F, R. at 452.

         Martinez was admitted to Bridgeport Hospital on November 30, 2012 for an “epidural abscess secondary to IV drug use” and “T12-L1 diskitis.” Id. at 422. Upon admission, he complained of “significant back pain with very minimal movement.” Id. at 427. An MRI showed “acute infectious diskitis at ¶ 12-L1 level with an epidural phlegmonous component measuring 7 mm in AP dimension.” Id. at 422-23. Martinez remained in Bridgeport Hospital until December 13, 2012, during which time the abscess was aspirated and biopsied, and he was treated for pain and infection. Id.; see also, generally, Ex. 3F. He was admitted to Bridgeport Manor on December 14, 2012 for continued intravenous antibiotic administration, where he stayed for over two months. Bridgeport Manor Med. Rec., Ex. 6F, R. at 479-504. While at Bridgeport Manor, he was seen at OSG where Dr. Hermele noted that Martinez had “an impressive diskitis involving destructive changes of the T12-L1 vertebral bodies” but there was “[n]o epidural abscess.” OSG Med. Rec., Ex. 2F, R. at 400. He was seen at Bridgeport Hospital again on January 28, 2013 for an infected PICC line, which was removed and replaced. Bridgeport Hosp. Med. Rec., Ex 3F, R. at 405-12. The records from that visit reflect that Martinez's “lumbar pain [was] much improved.” Id. at 407. He was released back to Bridgeport Manor.

         Martinez also underwent an MRI on February 5, 2013 at Bridgeport Hospital which showed “worsening kyphotic deformity with further collapse of the anterior aspects of the vertebral bodies at ¶ 12-L1” and “[w]orsening endplate erosions of the inferior endplate of T12 and superior endplate of L1 with further collapse of the T12 and L1 vertebral bodies.” Bridgeport Hospital Med. Rec., Ex. 5F, R. at 475. Further, the MRI revealed “less edema compared to the prior study although there is still some residual edema” and “mild fluid within the disc space [T12-L1] which is also less than suggesting continued changes of discitis and osteomyelitis.” Id. The MRI findings were “suggestive of improving, albeit persistent, discitis and osteomyelitis at ¶ 12-L1 with worsening bony erosive changes and further collapse of the T12-L1 vertebral bodies” and “worsening kyphotic deformity at this level.” Id. at 476. There were “[d]iffuse disc bulge[s]” noted at other disc levels as well. Id. at 475-76. On February 21, 2013, Martinez was seen by Dr. Miljkovic from Internal Medicine & Infections Disease, who reported that Martinez still had occasional back pain but had completed his IV antibiotics and ordered the PICC line removed. Dr. Miljkovic Med. Rec., Ex. 4F, R. at 466. He noted that Martinez was “in no acute distress” and his back had “[n]ormal curvature [and] no tenderness.” Id.

         Martinez was released from Bridgeport Manor on February 22, 2013. Bridgeport Manor Med. Rec., Ex. 6F, R. at 479-504. He was referred to Southwest Community Health Center (“SCHC”) for outpatient pain management care for his lower back. SCHC Med. Rec., Ex. 7F, R. at 518. He was examined on February 26, 2013 and reported that his back pain was a seven out of ten and treatment notes reflect that Martinez had deep palpation with reduced range of motion. Id. On March 22, 2013, Martinez was seen again at SCHC for back, neck, and joint pain. Id. at 513-14. Records reflect that he had muscle spasm in his back and “mild pain [with] motion” and “tenderness.” Id. at 515. He was given medication and a referral for mental health and pain management. Id. at 516. Martinez was seen again at SCHC on April 30, 2013 for “diffuse and sharp” back pain that occurred after “lifting a heavy object and twisting movement.” Id. at 509. Records reflect that Martinez had “tenderness” in his back, “moderate pain [with] motion”, and “deep palpation assoc[iated] with reduced” range of motion. Id. at 511. He was given pain medication and directed to follow up in six weeks. Id. at 512. Martinez returned to SCHC on June 6, 2013 with complaints of “fluctuating” lower back pain which he described as “an ache” and “aggravated by bending and lifting.” Id. at 505. Records note that Martinez had “muscle spasm”, “moderate pain [with] motion”, and “mildly reduced” range of motion. Id. at 507. He was told to follow up in four weeks. Id.

         On June 21, 2013, Martinez underwent a consultative psychiatric exam by Dr. Jesus Lago. Dr. Lago Report, Ex. 8F, R. at 534. Dr. Lago noted that Martinez “walked in with a cane”, “demonstrated normal posture”, “walked in slowly” with a “slow gait”, and “appeared to be in pain.” Id. at 535. The report reflects that Martinez was in normal health until 2012 when he began having “significant back pain” which was initially diagnosed as a “possible disc herniation” but the final diagnosis was “abscess to the back” which was removed. Id. Martinez reported that “he [could] not work due to the back pain”, which “has been somewhat depressing for him” but he is “somewhat optimistic.” Id. at 535-36. Dr. Lago reported that Martinez's “[d]epressive days have never outnumbered euthymic days” and “[i]f he has back pain, he has difficulty sleeping.” Id. at 536. Martinez reported that “[h]is energy [was] mildly low” and had been “somewhat more withdrawn than usual” because of his back pain. Id. Martinez reported that he was using marijuana everyday and had last used heroin, cocaine, and crack two weeks before the examination. Id. Dr. Lago reported that Martinez did “light chores”, took care of his activities of daily living, went for walks “to rehabilitate his back”, “had many friends”, and “function[ed] independently.” Id. at 537. With respect to his mental health, Dr. Lago reported that Martinez was “very relaxed, pleasant, and cooperative” and “ha[d] been somewhat depressed over the past eight months.” Id. Dr. Lago diagnosed “depressive disorder, not otherwise specified”, “polysubstance dependence (heroin, crack, cocaine, and marijuana)”, and “opioid analgesic dependence - in sustained full remission.” Id. Dr. Lago opined that Martinez's “[s]ocial interaction with supervisors and coworkers in the past ha[d] been quite good despite his substance abuse” and that he was “capable of adapting to work setting” but “need[ed] to remain drug free.” Id. at 538.

         Two reviewing physicians provided consultative examinations and a case analysis, including RFC assessments, in connection with Martinez's benefits applications. Ex. 4A, R. at 114; Ex. 6A, R. at 139. On July 11, 2013, Dr. Nancy Armstrong determined that Martinez's exertional limitations were as follows: he could occasionally (one-third or less of an eight hour day) and frequently (between one-third and two-thirds of an eight hour day) carry and/or lift ten pounds; he could stand and/or walk for a total of four hours; he could sit for more than six hours on a sustained basis in an eight-hour day; and he could push and/or pull for an unlimited time. Ex. 4A, R. at 115. Dr. Armstrong added that Martinez would need a cane for distances only. Id. With respect to Martinez's postural limitations, Dr. Armstrong opined that he could occasionally climb ramps and/or stairs, stoop, kneel, crouch, or crawl; he could never climb ladders, ropes, and/or scaffolds; and he could frequently balance. Id. Further, Dr. Armstrong opined that Martinez did not have any manipulative, visual, communicative, or environmental limitations. Id. at 116. On September 9, 2013, Dr. Khurshid Khan made the exact same RFC findings. Ex. 5A, R. at 127-29.

         Martinez was seen again for “moderate” back pain on August 29, 2013 at Bridgeport Hospital. Bridgeport Hosp. Med. Rec., Ex. 9F, R. at 539. Martinez reported that his pain was exacerbated by “movement, bending over, standing, walking, sitting, [and] changing position” but reported that it was “different than the pain with discitis.” Id. at 539-40. Martinez was encouraged to follow up with an orthopedist. Id. at 542.

         On October 1, 2013, Martinez was seen at St. Vincent's for “traumatic” toe pain after dropping a toilet on his foot. St. Vincent's Med. Rec., Ex. 17F, R. at 867. X-rays revealed “no evidence of fracture or dislocation” and Martinez was released with pain medication. Id. at 869. Medical records reflect two prior foot injuries. On December 9, 2010, Martinez was treated at St. Vincent's after dropping a “cast iron pipe” on his foot. St. Vincent's Med. Rec., Ex. 16F, R. at 847. He was diagnosed with a small fracture in his first toe and given pain medication, crutches, and a cast. Id. at 851. Martinez was also treated at SCHC on December 15, 2010 and January 25, 2011 for pain to the big toe on his right foot, though it is unclear whether the injuries were related. SCHC Med. Rec. Ex. 7F at 519-20. He was directed have X-rays taken and was given pain medication. Id.

         On November 30, 2013, Martinez returned to Bridgeport Hospital for back, neck, and knee pain after a minor motor vehicle accident. Bridgeport Hosp. Med. Rec., Ex. 10F, R. at 623. He was discharged with pain medication for a “likely muscle strain/contusion.” Id. at 626.

         The next medical record is from October 6, 2014, when Martinez returned to Bridgeport Hospital for “back pain after bending forward a week ago” after having “no relief” from Motrin. Id. at 627. Martinez reported his pain was ten out of ten and was radiating down his left leg to his ankle. Id. He was using a cane and the records reflect that “pain and presentation are comparable to previous epidural abscess on 11/30/12.” Id. An MRI revealed “[m]inor changes … but no evidence to suggest recurrent epidural abscess or discitis” and “postinfectious fusion of T12 and L1 vertebrae … [but t]he other vertebral body heights and signal [were] normal with normal alignment.” Id. at 630-31. He was medicated and discharged. Id. at 632. He returned to Bridgeport Hospital on October 12, 2014 where he complained of “continued lower back pain radiating down” his legs, made worse with “twisting and bending.” Bridgeport Hosp. Med. Rec., Ex. 11F, R. at 637. He was given a pain patch and records reflect that “additional opiate medication is inappropriate and dangerous” to Martinez. Id.

         On October 17, 2014, Martinez was transported to Bridgeport Hospital after appearing “diaphoretic [and] tachycardic” at the methadone clinic. Id. at 639. He complained of “right wrist pain that radiate[d] to right elbow” and records reflect “noted” loss of range of motion and “a central puncture mark” on his right wrist. Id. at 640-41. He was diagnosed with sepsis and an abscess on his right wrist, which was aspirated. Id. at 643-44. Treatment notes from October 21, 2014 reflect that Martinez's “right arm [was] swollen from shoulder to hand.” Id. at 655. While in the hospital, an MRI of his back revealed “[c]omplete resolution of previous discitis and osteomyelitis”, “resolution of prior infection from 2012”, and also a “[s]mall left-sided disc herniations at ¶ 4/5 and L5/S1 with minimal or no interval change.” Id. at 651. Treatment notes from an October 23, 2014 consultation with Dr. Perry Shear reflect that Martinez has “noticed increased low back pain” over the past month that will “[i]ntermittently” radiate down his left leg and is made worse with standing. Id. at 664. In reviewing the MRI, Dr. Shear noted that Martinez “may have early signs of L4-L5 diskitis” and noted “positive enhancement in the epidural space consistent with the epidural abscess.” Id. at 665. Dr. Shear “[did] not recommend neurosurgical intervention.” Id. Another MRI of his spine was done on December 1, 2014 and showed “worsening discitis with space collapse and endplate destruction at ¶ 4-5, compared to prior MRI on 10/22/14.” Id. at 669. Later treatment notes, however, state that “[a]lthough read as ‘worsening discitis' at the L4-5 space, the [12/1/14] lumbar MRI actually displays expected changes as the disc space will collapse and the level will eventually fuse over time.” Id. at 673. Martinez was discharged from the hospital on December 4, 2014.

         Martinez had an outpatient follow up appointment with Dr. Shear at OSG on December 17, 2014, where treatment notes reflect that he was “[d]oing well.” OSG Med. Rec., Ex. 21F, R. at 980. The records reflect that Martinez was in “[n]o acute distress” and was ambulating “without issue” with a cane. Id. Dr. Shear reviewed the December 1 MRI and noted “interval worsening of the diskitis” but “that the disk space will collapse and the level with eventually fuse over time and it is an expected change.” Id. Another MRI was taken on January 16, 2015 and, compared to the MRI from December 1, showed that the alignment at ¶ 12-L1 was “unchanged” and that there was “[m]ild improvement” at ¶ 4 and L5. Bridgeport Hospital Med. Rec., Ex. 19F, R. at 947. The MRI showed “no significant change” to “persistent disc bulge[s]” at some disc levels. Id. Overall, the MRI showed that the “previously noted epidural abscess [was] markedly improved since the prior exam and appears nearly resolved” and that “[m]ultilevel degenerative changes [were] essentially unchanged.” Id. at 948. Martinez was also seen by Dr. Shear on January 14, 2015 and treatment notes reflect that Martinez “has not noticed any change in his back pain”, but that the pain “is better when he is moving around” and worse with bending. OSG Med. Rec., Ex. 21F, R. at 979. Notes also reflect “severe decreased flexion of the lumbar spine and moderate decreased extension.” Id. OSG treatment notes from January 28, 2015 reflect that Martinez was “showing improvement with improved MRI of the lumbar spine.” Id. at 978; see also Id. at 976 (March 11, 2015 treatment note states MRI showed “improvement of the epidural abscess” and there was “no sign of infection”). Another MRI was performed on April 27, 2015 which showed either no change or improvement in the condition of disc spaces. OSG Med. Rec., Ex. 21F, R. at 1013-14.

         On March 7, 2015, Dr. Shear referred Martinez to aquatic physical therapy two times per week for eight weeks. Phys. Ther. Treatment Notes, Ex. 13F, R. at 720. Treatment notes reflect that Martinez's condition was improving with continued aquatherapy. See generally Ex. 13F; R. at 723 (March 17, 2015: pain an eight out of ten pre-treatment, two out of ten post-treatment); R. at 738-39 (April 3, 2015: Martinez reported that the pool was helping; pain a five out of then pre-treatment, two out of ten post-treatment); R. at 742 (April 7, 2015: pain a five out of ten pre-treatment, two out of ten post-treatment); R. at 746 (April 13, 2015: same); R. at 750 (April 20, 2015: same). On June 10, 2015, Dr. Shear noted that Martinez “completed an aquatic physical therapy program” and “continues to improve” and “will undergo land physical therapy.” OSG Med. Rec., Ex. 21F, R. at 975. Dr. Shear also reviewed the April 27 MRI and noted the “improvement of the discitis and osteomyelitis.” Id.

         On July 30, 2015, Dr. Shear submitted another referral for continued physical therapy two times per week for eight weeks and an evaluation form noted that Martinez could stand for 20 minutes and ambulate for 30 minutes without difficulty. Phys. Ther. Treatment Notes, Ex. 13F, R. at 754, 759. Martinez participated in twenty sessions of physical therapy from August 19, 2015 to January 8, 2016. Id. at 762-835. OSG records from September 2, 2015 reflect that Martinez was “doing well” with “intermittent low back pain, which [was] well controlled with the use of Lidoderm patches[.]” OSG Med. Rec., Ex. 21F, R. at 973. A September 8, 2015 MRI showed “improvement” at ¶ 4-5 since the April 27 MRI. OSG Med. Rec., Ex. 21F, R. at 2012. Notes from Martinez's September 29, 2015 physical therapy session reflect that he re-injured his back moving furniture, but he reported that he had less pain with bending and reaching. Phys. Ther. Treatment Notes, Ex. 13F, R. at 793. Martinez saw Dr. Shear again on November 11, 2015 who noted that Martinez's back pain was “made worse with bending” but was improving with aquatherapy and noted that his “diskitis osteomyelitis ha[d] resolved.” OSG Med. Rec., Ex. 21F, R. at 972. Notes from a December 16, 2015 examination with Dr. Shear reflect that Martinez's pain “continue[d] and [was] made worse with bending or lifting” with “numbness in the left thigh”, his “normal activities [were] still markedly limited”, and the symptoms increased with increased activity, such as “a lot of walking.” Id. at 971. Dr. Shear noted Martinez “may require ongoing pain management.” Id.

         Notes from a January 27, 2016 follow-up reflect that physical therapy “significantly improved [Martinez's] symptoms” and that his “back pain [was] about 40% improved.” Id. at 969. Dr. Shear renewed a referral for physical therapy. Id. Treatment notes from February 18, 2016 reflect, though, that Martinez had “increasing low back pain” and Dr. Shear ordered a follow-up MRI. Id. at 968. An MRI was taken on February 23, 2016 and showed “no specific evidence of active osteomyelitis in the current findings” and the “marked degenerative changes at ¶ 4-5 … could be attributed to the sequelae of prior discitis and osteomyelitis.” OSG Med. Rec., Ex. 21F, R. at 1010-11. Martinez saw Dr. Shear for a follow-up on March 4, 2016, and treatment notes reflect that the MRI showed “no acute infection” but “degenerative disk disease at ¶ 4-L5 with moderate spinal stenosis and right greater than left lateral recess stenosis” and “degenerative disk disease at ¶ 5-S1.” OSG Med. Rec., Ex. 21F, R. at 967. Dr. Shear encouraged Martinez to lose weight and did not “consider any lumbar injections.” Id.

         Martinez filed for SAGA Cash Benefits and Dr. Shear was asked to provide a medical report. OSG Med. Rec., Ex. 22F, R. at 1015. Dr. Shear noted on the form that he treated Martinez for “lumbar degenerative disk disease”, which did not prevent Martinez from working because Martinez “does not work”. Id. at 1019. Further, Dr. Shear noted that he expected Martinez to be out of work between six and twelve months. Id. The ...