United States District Court, D. Connecticut
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 4th and
5th 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 ...