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Laidlaw v. Commissioner of Social Security Administration

United States District Court, D. Oregon, Eugene Division

January 16, 2015



JANICE M. STEWART, Magistrate Judge.

Plaintiff, Leland Laidlaw ("Laidlaw"), seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. This court has jurisdiction under 42 USC § 405(g) and § 1383(c). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c) (docket #8).

Because the Commissioner's decision is not supported by substantial evidence, it is reversed and remanded for an award of benefits.


Laidlaw filed applications for SSI and DIB on June 11, 2010, alleging disability as of May 14, 2009. Tr. 158-71.[1] After the Commissioner denied his applications initially and upon reconsideration, Laidlaw requested a hearing before an Administrative Law Judge ("ALJ"). Tr. 70-86. Laidlaw appeared before ALJ Stuart Waxman at hearings held on March 14 and July 13, 2012. Tr. 29-65. On July 21, 2012, the ALJ issued a decision finding Laidlaw not disabled. Tr. 13-23. The Appeals Council denied Laidlaw's subsequent request for review on September 9, 2013 (Tr. 1-4), making the ALJ's decision the final Agency decision. This appeal followed.


I. Background

Born in 1964, Laidlaw was 48 years old at the time of the hearings. Tr. 48. He left high school in the 11th grade and has past work experience as a dish washer, a bouncer, a welder, a cleanup worker, a landscaper, and a carpenter. Tr. 33-36.

II. Medical Evidence

In June 2009, Laidlaw sought emergency treatment for sciatic pain after being involved in a motor vehicle accident several weeks earlier. Tr. 298. The physician believed that he likely had a herniated disk and diagnosed sciatica. Tr. 299. Laidlaw established care with Kathie J. Lang, M.D., who referred him to physical therapy and prescribed pain medications. Tr. 288, 296. He continued to have pain, and an MRI revealed moderate degenerative disc narrowing at L4-L5 and a broad-based disc herniation at L5-S1 with impingement of the left L5 nerve root. Tr. 285, 290.

Dr. Lang referred Laidlaw for an orthopedic evaluation. Tr. 339. Karl Wenner, M.D., an orthopedic surgeon, evaluated Laidlaw on July 30, 2009. Tr. 337. At that time, Laidlaw reported "bouts of occasional extreme left leg pain, " discomfort in any position, and feeling "quite miserable." Tr. 339. Dr. Wenner adjusted the pain medications, scheduled an epidural steroid injection, and absent any improvement, stated that he would schedule an L5-S1 left-sided microdiskectomy. Tr. 340.

Laidlaw received physical therapy 15 times over 90 days from June through September 2009. Tr. 305-24. Although he missed some scheduled visits, he was "starting to respond better" by mid-August. Tr. 318.

In September 2009, Dr. Wenner noted a positive straight leg raise on the left, paresthesias in the lateral side of the leg and dorsum of the foot, some weakness, and decreased reflexes. Tr. 337. He wrote that Laidlaw had a disc herniation with significant involvement of the L5-S1 foramen and a very broad-based bulge. Id. He believed that Laidlaw was a candidate for surgical intervention because two epidural injections had failed to alleviate his condition. Id.

On October 15, 2009, Dr. Wenner performed a minimally invasive microdiskectomy at L5-S1. Tr. 349-50. Laidlaw did well after the operation for a few days, but his leg pain soon returned. Tr. 336, 345. An MRI revealed a recurrent disc herniation impinging on the exiting L5 nerve root. Tr. 345, 355-56. Due to severe discomfort, Laidlaw elected to have a second microdiskectomy. Tr. 333, 345.

On January 4, 2010, Dr. Wenner performed a re-exploration and microdiskectomy at L5-S1. Tr. 346. The nerve root was "extremely swollen" with a disc protrusion beneath. Id. After surgery, Laidlaw continued to report pain. Tr. 331. The following month, Dr. Wenner advised Laidlaw to increase his activity as tolerated. Tr. 330. By May 28, 2010, however, Laidlaw was "still very uncomfortable." Tr. 327. Although Dr. Wenner noted objective improvement with no definite paresthesias and a mild straight leg raise, he noted that Laidlaw "subjectively is still uncomfortable." Id. Dr. Wenner again advised Laidlaw to increase his activity as tolerated. Id.

By March 2010, Laidlaw was "doing quite a bit better, " but began having leg pain again. Tr. 329. Based on a new MRI that did not show a recurrent or new disc herniation, Dr. Wenner approved a diagnosis of Laidlaw in April 2010 with status post L5-S1 microdiskectomy with persistent left leg radiculitis due to chemical radiculitis.[2] Tr. 328. Because Laidlaw had an adverse reaction to steroids, Dr. Wenner prescribed Neurontin and a foraminal injection to relieve his pain. Id. Having "run out of other options, " he considered a pain referral if Laidlaw showed no improvement. Id.

In May and July 2010, Dr. Wenner noted that Laidlaw was "still pretty uncomfortable" with pain radiating into his leg and feeling unsteady when walking. Tr. 326-27. While his function had improved overall, Laidlaw could not "do anything vigorous and could not return to his work as a welder." Tr. 326. Dr. Wenner noted that Laidlaw got around the room reasonably well, had a negative straight leg raise, except for tight hamstrings, and had a markedly positive spring test in the lower lumbar spine. Id. He diagnosed persistent radiculitis and mechanical back pain after two disc herniations. Id. Because he had nothing surgical to offer and Laidlaw had no medical insurance to cover physical therapy, he recommended a conditioning program. Id.

By letter dated July 23, 2010, Dr. Wenner stated that "despite appropriate treatment" now focused on a "conditioning program" and "nonsteroidal anti-inflammatory medicines, " Laidlaw "continues to have persistent pain and discomfort and inability to do significant work." Tr. 325. He projected that Laidlaw's condition would preclude gainful employment for the next six months to a year. Id.

In the fall of 2010, Laidlaw returned to Dr. Wenner. Tr. 461. His condition had not changed; he had good days and bad days, was taking narcotic analgesics, and had a positive straight leg raise. Id.

In November 2010, Dr. Wenner ordered another MRI, which revealed scarring in the nerve area, but no recurrent disc herniation. Tr. 461. The following month, he referred Laidlaw for an evaluation for a possible spinal cord simulator. Tr. 460. He opined that Laidlaw was neurologically intact, but had a positive straight leg raise and popliteal compression tests. Id.

In January 2011, Laidlaw was examined by Viviane Ugalde, M.D., at The Center, Orthopedic and Neurosurgical Care and Research. Tr. 432-35. Dr. Ugalde diagnosed lumbar neuritis; postlaminectomy syndrome (lumbar), and lower back pain. Tr. 425. Prior to considering spinal cord stimulation, she recommended a SPECT scan to rule out alternative treatment courses. Tr. 435.

In February 2011, Dr. Wenner completed a form regarding Laidlaw's condition and opined that his recurrent herniated nucleus pulposus with persistent radiculitis could be expected to last at least 12 months. Tr. 424. He wrote that Laidlaw experienced back pain and left leg pain with weakness in the left leg and noted a positive straight leg raise in the left leg and an MRI showing epidural fibrosis. Tr. 425. Dr. Wenner opined that Laidlaw must lie down or rest periodically during the day every one to two hours due to his back and leg pain, could stand and walk at least two, but less than six, hours and sit for less than six hours in an eight-hour workday with normal breaks. Id.

On March 2, 2011, Laidlaw was examined by Jon N. Swift, Jr., D.O., at The Center to continue the spinal cord stimulator assessment. Tr. 427. Laidlaw reported taking various medications which had not worked or could not be tolerated and also engaging in physical therapy which worsened his pain. Id. Dr. Swift noted that Laidlaw's lumbar range of motion was diminished in all planes and provocative with twisting and extension which caused left-sided back and leg pain. Tr. 428. Lumbar facet loading maneuvers and straight leg raise were positive on the left. Id. Laidlaw's gait was antalgic. Tr. 429. A SPECT (single photon emission computed tomography) scan showed increased tracer activity at the L4-5, L5-S1 disc space, consistent with active degenerative disc disease, and worse at L5-S1. Id. Dr. Swift found that would be reasonable to proceed with a medial branch block. Tr. 430. If the branch block did not provide pain relief, he would consider a spinal cord stimulator trial. Id. The next day, Dr. Swift administered the medial branch block. Tr. 449. After several days of relief, the pain returned. Tr. 464.

On August 4, 2011, in a letter referring Laidlaw to another physician, Dr. Wenner reported that The Center believed Laidlaw was a candidate for an electrical stimulator trial, but had not been successful in getting it approved by the insurance company. Tr. 459. Since he did not have anything surgical to offer, he believed "that the electrical stimulator may be the only option" and that Laidlaw "may require some degree of narcotic treatment on a chronic basis "as long as he is not escalating his use." Id. Dr. Wenner also noted that Laidlaw was neurologically intact with radicular pain with straight leg raise. Id.

In April 2012, at the request of the agency, Laidlaw was examined by Raymond P. Nolan, M.D., Ph.D., a cardiologist and internal medicine specialist. Tr. 464. Laidlaw reported that he had not been able to pursue the implantable stimulator because the cost was prohibitive. Id. He also reported that in a comfortable position in a chair, he could sit for 30 to 45 minutes ...

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