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Russell v. Colvin

United States District Court, D. Oregon

March 27, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

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For Plaintiff: KATHRYN TASSINARI, BRENT WELLS, Harder, Wells, Baron & Manning, P.C., Eugene, OR.

For Defendant: S. AMANDA MARSHALL, United States Attorney, ADRIAN L. BROWN, Assistant United States Attorney, Portland, OR; HEATHER L. GRIFFITH, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration, Seattle, WA.

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Michael H. Simon, United States District Judge.

Ms. Kimberly Dawn Russell seeks judicial review of the final decision of the Commissioner of the Social Security Administration (" Commissioner" ) denying her application for Disability Insurance Benefits (" DIB" ) and Supplemental Social Security Income (" SSI" ). For the following reasons, the Commissioner's decision is REVERSED and REMANDED for an award of benefits.


I. The Application

Ms. Russell filed a Title II application for DIB and SSI on August 26, 2008, alleging disability beginning on January 6, 2005. AR 157-166. Ms. Russell alleges disability due to a combination of impairments, including a back injury, herniated discs, degenerative disc disease, chronic pain, depression, anxiety, bipolar disorder, and loss of use of her legs. AR 157, 161, 177, 213. The Commissioner denied Ms. Russell's application both initially and on reconsideration, and Ms. Russell then requested a hearing before an Administrative

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Law Judge (" ALJ" ). AR 85-101, 105. On January 26, 2011, ALJ Rudolph Murgo conducted a hearing. AR 46. The ALJ determined Ms. Russell was not disabled and on June 22, 2011, the ALJ issued a decision denying her claims for benefits. AR 7-29. On August 29, 2012, the Appeals Council denied Ms. Russell's request for review of the hearing decision. AR 1-4. Ms. Russell now seeks judicial review of that decision.

II. Summary of Evidence

Born in 1977, Ms. Russell was 33 years old at the time of the hearing. AR 52. She did not graduate from high school, but obtained her GED and trained as a certified nurse's assistant (" CNA" ). AR 54. Ms. Russell's past work included jobs as a CNA and as a caregiver. AR 56.

A. Relevant Medical Evidence

Ms. Russell began seeing Dr. John Ward in July 2004. AR 500, 748. At that time, and throughout the remainder of 2004, she complained of lower back pain with lifting and movement. AR 495, 499-500.

On January 6, 2005, Ms. Russell was injured while working as a CNA when a client and his walker fell on her. AR 269. On January 7, 2005, Thomas Thrall, MD, examined Ms. Russell. AR 269. Dr. Thrall noted Ms. Russell's past history of online low back pain for the previous year, which was not work related. AR 269. Ms. Russell reported to Dr. Thrall that after the injury on January 6, 2005, she was having considerably more back pain, with radiation into the midback. AR 269. Ms. Russell was seen by Dr. Thrall again on January 10, 2005, January 14, 2005, and February 4, 1005. AR 269-71. She was seen by Dr. Charles Pederson on January 18, 2005, and February 1, 2005. AR 269-70. Ms. Russell continued to complain of low back pain, with limited range of motion and mobility. AR 269-70.

On February 10, 2005, an MRI revealed a disc protrusion at L4-5, with moderate central canal stenosis and mild right and severe left lateral recess encroachment, and compression of the L5 nerve root. AR 271, 571.

On March 2, 2005, orthopedic surgeon Dr. Gregory Strum examined Ms. Russell for SAIF Corporation. AR 268. Dr. Strum diagnosed Ms. Russell with chronic persistent low back pain related to degenerative disc disease at L4-5, with a moderate-sized disc herniation not causing neural anatomic compromise. AR 277. Because of the pre-existing back condition, which was exacerbated by the January 6, 2005, injury, Dr. Strum recommended work in a light to medium duty job. AR 280.

On March 10, 2005, Dr. Jaimy Patton administered an L4-5 transforaminal steroid injection. AR 283.

On April 4, 2005, orthopedic surgeon Dr. Todd Lewis examined Ms. Russell. AR 320. Dr. Lewis noted a herniated L4-5 disc causing stenosis and root impingement. AR 324. He proposed a surgical excision of the disc. AR 325. Dr. Lewis placed Ms. Russell on limited activities restriction, including restrictions on bending, lifting, carrying, twisting, extension, pushing, and pulling. AR 325.

On April 25, 2005, orthopedic surgeon Dr. Edward Grossenbacher and neurosurgeon Dr. Thomas Dietrick examined Ms. Russell for SAIF Corporation. AR 285. The doctors noted Ms. Russell ambulated with a slow, guarded gait, antalgic on the left, and her range of motion was markedly limited. AR 287-88. Sensation was decreased over L5. AR 288. They diagnosed a disc herniation at L4-5 with encroachment verified by MRI and chronic

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degenerative disc disease at L4-5. AR 288-89.

The doctors stated that their diagnoses agreed with Dr. Lewis's but not with Dr. Strum's. AR 289. They stated Ms. Russell could work with intermittent sitting and standing, and no lifting greater than ten pounds. AR 291. They further stated her prognosis was guarded, because of her deconditioned state and weight, as well as the chronicity of her complaints. AR 291. The doctors noted her reflexes were equal and there was no demonstrable weakness, and felt that instead of surgical intervention, an alternate form of treatment with continued observation and conservative care would also be a medical option. AR 292.

On June 9, 2005, Dr. Lewis performed an excision of the L4-5 disc. AR 297. He found a large subligamentous disc herniated and removed it. AR 297. On June 24, 2005, Dr. Lewis performed a post-operative examination. AR 327. Ms. Russell reported her low back pain was gone, but she had left gluteal pain occasionally radiating into her calf, which worsened when walking and standing. AR 327. On July 8, 2005, Dr. Lewis examined Ms. Russell again and she reported significant persistent pain in her left leg. AR 329. Another MRI was performed on July 15, 2005, and on July 22, 2005, Dr. Lewis reported the MRI showed some inflamation, but no recurrent disc or infection. AR 330.

On September 26, 2005, orthopedic surgeon Dr. Anthony Woodward performed an independent medical examination of Ms. Russell. AR 305. Ms. Russell complained of constant pain in the lumbosacral area which radiated in the midline to the coccyx, into the medial aspect of the left buttock and posterior left thigh. AR 306. Dr. Woodward concurred with Dr. Strum, stating that he did not believe Ms. Russell sustained a disc herniation in her January 6, 2005, injury. AR 318. He disagreed with Drs. Grossenbacher and Dietrich as to causation. AR 318.

Throughout the remainder of 2005 and into 2006, Ms. Russell was seen by Dr. Ward, and reported continued back pain. AR 485, 481, 476, 474. On December 5, 2006, Ms. Russell reported increased low back pain going into the buttock and her left leg, as she had experienced with her herniated disc. AR 472. Dr. Ward noted some weakness on the left with plantar flexion. AR 472. On February 9, 2007, Ms. Russell reported an increased " pins and needles" sensation in the left foot, with pain after walking. AR 469.

On March 22, 2007, Ms. Russell had new back pain with a persistent, severe ache and radiation into the left buttock. AR 466. On June 10, 2007, Ms. Russell was transported by ambulance to the hospital after falling down five stairs at her home. AR 362. The next day, Dr. Ward noted a CT scan was negative, but that there was pain to palpation over the midline, and decreased sensation over the left lower leg, decreased reflexes in the patellar and Achilles on the left leg. AR 465. Dr. Ward also noted the left leg pain was suggestive of left radiculopathy at L5-S1. AR 465.

In November 2007, Ms. Russell reported continued left leg pain, worse at times with increased activity. AR 460. She also had some weakness in her left leg and numbness in the toes. AR 460. Dr. Ward noted a continuation of the decreased sensation over the left lower leg and decreased patellar and Achilles reflex on the left leg. AR 460. A new MRI showed post-surgical changes at L4-5 with a small central protrusion and retrolisthesis, but no surgical lesion. AR 461.

In January 2008, Ms. Russell reported increased weakness in the left leg. AR 458. In March 2008, Ms. Russell had a

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second transforaminal injection, which did not seem to help. AR 375, 455. In May 2008, Ms. Russell reported pain medications overall seemed to be fairly effective in controlling her persistent low back pain. AR 453.

On November 22, 2008, Dr. Ryan Vancura examined Ms. Russell at the request of the agency. AR 383. Dr. Vancura reviewed Ms. Russell's medical records and performed a 30-minute examination. AR 383. Dr. Vancura noted Ms. Russell was easily able to transfer from the chair to the examination table, and sit comfortably, with mildly increased efforts. AR 384. There was no evidence of poor effort or inconsistencies. AR 384. Sensory examination was diminished in a L5 distribution on the left lower extremity. AR 386. Dr. Vancura diagnosed failed back syndrome with left L5, lumbar radiculopathy and likely post-surgical and post-traumatic degenerative disc disease and facet joint arthropathy. AR 387. He opined that her maximum standing and walking capacity was up to four hours, and no limitations in sitting. AR 387. She could lift and carry 20 pounds occasionally and 10 pounds frequently, could occasionally stoop, bend, kneel, and crouch, and should never climb, balance, or crawl. AR 387.

In January 2009, Ms. Russell reported persistent ongoing low back and leg pain, with pain worse at night and if she remained in one position for too long. AR 440. In February 2009, Ms. Russell reported increased back pain down both legs and increasing left leg numbness after a fall ten days earlier. AR 437. Dr. Ward again noted decreased sensation over the left lower leg and decreased reflexes, and some mild weakness with dorsiflexion. AR 438.

In March 2009, a follow-up MRI showed no significant changes. AR 424. Ms. Russell reported the pain had improved some but that her activities were still quite limited due to pain. AR 424. In April 2009, Ms. Russell complained of continuing radicular pain in her left leg and trouble sleeping because of the ongoing pain. AR 421. Dr. Ward noted the injections were not helpful and advised Ms. Russell was not a surgical candidate. AR 422.

On May 20, 2009, Dr. Allen G. Brooks examined Ms. Russell for a disability evaluation. AR 576. Dr. Brooks diagnosed chronic L5 radiculitis with degenerative disease of the lumbar spine. AR 578. As far as what Ms. Russell could or could not do in terms of work, Dr. Brooks declined to opine because a formal physical capacities evaluation would be necessary. AR 578. He did note that the examination did not show any evidence of functional overlay. AR 578.

In September 2009, Ms. Russell sought emergency treatment for incapacitating leg pain. AR 593. On September 29, 2009, Dr. Roberson examined Ms. Russell and noted increased left L4 dermatome and " even more numbness in the left L5 dermatome." AR 594. He diagnosed an acute, large L4-5 recurrent herniated disc. AR 594. Dr. Roberson performed a left L4-5 microdiscectomy. AR 591. He found a moderate amount of epidural fibrosis at the site of her previous laminotomy, and a large L4-5 herniated disc. AR 591.

On October 1, 2009, Ms. Russell was discharged from the hospital. AR 585. She returned two days later, however, in severe pain and barely able to walk. AR 598. An MRI revealed a large mass at L4-5. AR 598. Dr. Roberson again operated, removing gel foam inserted in the September 29, 2009, surgery that was compressing the thecal sac and left L5 nerve root. AR 596-97. Ms. Russell was discharged the next day and initially did well. AR 606.

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By October 26, 2009, Ms. Russell again reported markedly increased pain in her low back and left leg. AR 606. An MRI revealed a possible recurrent L4-5 disc extrusion. AR 607. On November 2, 2009, Dr. Roberson performed another left L4-5 microdiscectomy. AR 611. He again found a large acute recurrent herniated disc underneath the thecal sac and left L5 nerve root. AR 611. He noted epidural adhesions and a very large annular hole at L4-5. AR 611.

At the end of November 2009, Ms. Russell developed severe left leg pain that was tolerable only if she would lie still and take pain medications. AR 668. On November 30, 2009, Dr. Roberson performed a lumbar fusion. AR 619. This was necessary because of the likelihood of further recurrence of herniation due to a very large swollen annulus created by the large herniation in September. AR 619. During surgery, Dr. Roberson did not find a recurrent herniation, but there was granulation tissue and epidural fibrosis forming in the left lateral gutter and around the left L5 nerve root. AR 619. Dr. Roberson noted Ms. Russell had had an L4-5 left dorsiflexion weakness for several months, and that finding remained unchanged. AR 620.

Two weeks post-surgery, on December 17, 2009, Ms. Russell still reported back and leg pain, but it was much better than pre-surgery or immediately post-surgery. AR 667. Dr. Roberson thought her residual left leg pain was totally understandable, and noted her left dorsiflexion improved to close to normal. AR 667.

Two months post-surgery, on January 26, 2010, Ms. Russell reported continual improvement, with very little low back pain but some residual left leg pain. AR 666. Dr. Roberson noted she was doing well, but he was not totally comfortable because she still had radicular pain. AR 666.

On March 31, 2010, Ms. Russell still had left leg " aching type" discomfort if she walked a good distance, and sometimes when she sat, but it was not severe. AR 665. She had some mild low back pain. AR 665. Dr. Roberson doubted she had ongoing compression of her left L5 nerve root, but it was conceivably secondary to the epidural scar formation noted in the last surgery. AR 665. Another possible explanation was mild residual from the intermittent severe compression she experienced over a period of months prior to the November 30, 2009, surgery. AR 665.

On August 20, 2010, Ms. Russell saw Dr. Ward, and reported more significant back pain. AR 738. Dr. Ward told Ms. Russell there was still hope for improvement, but it might be very slow and take a long period of time. AR 738. Ms. Russell continued ...

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