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Macfarlane v. Berryhill

United States District Court, N.D. Alabama, Eastern Division

December 12, 2018

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         Pursuant to 42 U.S.C. § 405(g), Plaintiff Jennifer MacFarlane seeks judicial review of a final adverse decision of the Commissioner of Social Security. The Commissioner denied Plaintiff's claim for a period of disability and disability insurance benefits (“DIB”). After careful review, the court finds that the decision of the Commissioner is due to be reversed and remanded for further consideration.


         Plaintiff applied for Supplemental Security Income (“SSI”) benefits on August 19, 2014, alleging a disability onset date of January 9, 2014. (R. 62, 133). The Commissioner initially denied Plaintiff's claim on October 24, 2014. (R. 73). Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) on November 10, 2014. (R. 77). Subsequently, the ALJ issued a decision unfavorable to Plaintiff dated February 15, 2017. (R. 33). On September 30, 2017, the Appeals Council declined Plaintiff's request for review (R. 1-6), making the Commissioner's decision final and properly before this court for review. See 42 U.S.C. § 405(g).

         II. FACTS

         Plaintiff was born on October 4, 1972 and was 41 years old on the date of alleged disability onset. (R. 133). She speaks English and completed high school and one year of college. (R. 169, 171). Plaintiff alleges that migraines, high blood pressure, lumbar spondylolisthesis, and back pain limit her ability to work. (R. 63, 170).

         In the fifteen years preceding Plaintiff's alleged onset disability date, Plaintiff worked as a waitress, cook, sales associate, and store cashier. (R. 54, 156-58). In 2013, Plaintiff was let go from Family Dollar and did not return to the work force. (R. 54, 170).

         After being involved in a motor vehicle accident, Plaintiff began treatment with Dr. James Beretta at the Beretta Pain Clinic on March 24, 2014. (R. 247). The accident reportedly exacerbated her previously-existing spondylolisthesis, most notably her neck and back pain. (R. 247, 258). Dr. Beretta found decreased rotation in the cervical spine, tenderness in the paraspinal musculature, increased kyphosis in the thoracic spine, and a tender lumbar spine. (R. 247). Dr. Beretta diagnosed Plaintiff with cervical herniated disc, cervical radiculopathy, and aggravated lumbar spondylosis. (R. 247-48). He prescribed Ultram and Robaxin and planned for bilateral L5-S1 transforaminal epidural steroid injection. (Id.). Plaintiff received the epidural steroid injection on April 15, 2014. (R. 247, 249).

         On May 19, 2014, Plaintiff sought treatment from neurologist Dr. James White. (R. 253, 495-96). Plaintiff reported mild to moderate neck pain and severe “unrelenting” back pain, making it impossible to participate in any activities. (R. 495). She reported that the pain was relieved “somewhat when lying down” and that she had tried epidural injections received at the Beretta Pain Clinic which “has not helped.” (Id.). On examination, Dr. White found that Plaintiff had normal gait and station. (Id.). Dr. White also found Plaintiff to have 1 and symmetrical deep tendon reflexes, a positive straight leg raising test bilaterally at 45 degrees, and no overt sensory or motor deficits. (Id.). Dr. White's impression was that Plaintiff was experiencing a minimally symptomatic herniated disc at C5 and a central herniated disc at LS with a grade one to two spondylolisthesis. (R. 496). Dr. White noted that Plaintiff would need surgical intervention in light of her report that the epidural injection was not effective. (Id.).

         On April 8, 2015, almost a year after her visit with Dr. White, Plaintiff sought treatment with Dr. Brian Scholl at The Orthopedic Center. (R. 653). At that consult, Plaintiff reported that she was frustrated with the persistence of neck and back pain and that she experienced significant weight gain over the preceding two years as a result. (Id.). On examination, Plaintiff had range of motion of chin to chest, 45 degrees of extension, 70 degrees of rotation, and negative Spurling's and Lhermitte's tests. (Id.). Dr. Scholl noted that Plaintiff presented significant back pain in the lumbar spine, but had a normal gait and intact heel, toe, and tandem walking. (Id.). Dr. Scholl diagnosed Plaintiff with lumbar spondylolisthesis at L4-L5. (Id.). Dr. Scholl discussed treatment options with Plaintiff including a posterior spinal instrumented fusion and Gill laminectomy at L4-L5. (Id.).

         About a month later, on May 7, 2015, Plaintiff returned to Dr. Scholl for an epidural injection. (R. 650). This time she reported that the last epidural shot “helped out quite a bit, ” but the pain returned after working in a flowerbed. (Id.). On examination, Dr. Scholl found that Plaintiff had 5/5 motor range from C5-C8 and L2-S1, and noted that the epidural would be repeated. (Id.). On July 22, 2015, Plaintiff underwent an epidural injection procedure at Crestwood Medical Center. (R. 664).

         On August 6, 2015, Plaintiff returned to Dr. Scholl reporting that her back pain had improved after the last epidural injection. (R. 739). On examination, Dr. Scholl reported that Plaintiff had 5/5 motor strength from C5-C8 and L2-S1 with normal gait, station, and coordination. (Id.). Dr. Scholl's treatment notes indicate that the claimant was considering surgical treatment but would continue conservative care and attempt to lose weight. (R. 739-41).

         In November 2015, Plaintiff visited Premier Family Care with complaints of back pain, including the report of the sensation of “giv[ing] out” in her leg. (R. 769-72). Dr. Youngblood, the treating physician at Premier Family Care, noted spinal and paraspinal tenderness on examination. (R. 771). However, during the examination, Plaintiff reported that she was able to carry out activities of daily living. (R. 769).

         On January 7, 2016, Plaintiff returned to Dr. Scholl again complaining of pain associated with her back. (R. 758). Dr. Scholl noted that Plaintiff had failed all attempts of conservative care and was “quite frustrated” with the persistence of symptoms. (Id.). On examination, Dr. Scholl reported that Plaintiff had 5/5 strength from C5-C8 and L2-S1 with normal gait, station, and coordination. (R. 759). Dr. Scholl developed a surgical plan with Plaintiff, proposing a Gill laminectomy with posterior spinal instrumented fusion at L5-S1. (Id.). Dr. Scholl required that Plaintiff get an updated MRI before surgical treatment. (Id.). On January 18, 2016, Plaintiff's MRI showed “bilateral L5 pars defects with mild associated grade 1 spondylolisthesis” and moderate bilateral neural foraminal stenosis. (R. 761).

         Two months later, on March 9, 2016, Plaintiff underwent a Gill laminectomy of L5-S1 with posterior spinal instrumented fusion, interbody arthrodesis, and application of a biomechanical device and instrumentation at ¶ 5-S1. (R. 782-83). She had a “normal uneventful postoperative course” and was discharged the following day. (R. 783). However, on March 22, 2016, Plaintiff presented to the emergency department of Huntsville Hospital complaining of swelling, back pain, and shortness of breath. (R. 785). On examination, the emergency room physician found that Plaintiff had an epidural fluid collection compressing the cauda equina. (R. 787). Plaintiff underwent evacuation of a hematoma/seroma, ...

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