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Pazour v. Berryhill

United States District Court, W.D. Wisconsin

February 20, 2019

LISA K. PAZOUR, Plaintiff,
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Lisa K. Pazour seeks judicial review of a final decision of defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, under 42 U.S.C. § 405(g), which denied her application for disability benefits. In finding Pazour capable of working eight hours per day in a sedentary position, the ALT placed no weight on the opinions of Pazour's treating physician and an examining medical consultant, both of whom concluded that her chronic pain prevented her from working eight hours per day. Because the ALT failed to weigh properly the opinions of these two physicians -- and relatedly, failed to offer valid reasons for discounting Pazour's credibility -- the Commissioner's decision will be reversed and remanded. The court also will order the Commissioner to calculate and award benefits upon remand.


         A. Overview of Claimant

         Pazour was born on April 20, 1962. She applied for SSDI in 2012, alleging a disability onset date of December 6, 2009. Pazour was 47 years-old at the date of the alleged onset of her disability; she was 50 years-old when she applied for disability; and she was 52 years-old at the time of her hearing in May 2014. As the ALJ notes, over this period, Pazour moved from younger individual, ages 45-49, to the age category of closely approaching advanced age, ages 50-54 See 20 C.F.R. § 404.1563. Pazour has at least a high school education, is able to communicate in English, and has past work experience as an assembly stock supervisor. She last worked in 2009, except for limited part-time secretarial and clerk jobs held more recently. Before her alleged onset date, Pazour worked for 20 consecutive years. She claims disability based on chronic pain, specifically in her back and legs.

         B. Medical Recor

         1. Pre-Alleged Onset Date

         Pazour had lower back surgery, consisting of microdiskectomies at the L5-Sl level in 2002 and 2004. In 2006 and 2007, Pazour began complaining of some foot numbness or paresthesia to her surgeon, Dr. Abernathy, and her podiatrist, Dr. Maurus. Both recommended that she manage these symptoms conservatively and perhaps try orthotics. (AR 307, 314.) By late 2007, from the record, Pazour appears to have suffered a set-back with increased back pain, radiating down her right leg to her foot. This time, Dr. Maurus ordered an MRI of her lumbar spine, which was conducted on January 3, 2008, revealing "[a] mild to moderate degree of postoperative epidural scarring ... in the right lateral epidural space at the L5-Sl level, [but] no recurrent disc extrusion or other new diagnostic abnormality." (AR3O9.)

         In the next several months, Pazour saw a number of doctors seeking relief from chronic pain, while working reduced hours or completely off work. A January 16, 2008, medical note by Balaji Singaracharlu, M.D., indicates that he saw Pazour at the request of Dr. Maurus for further evaluation of right distal lower extremity pain, tingling and numbness and foot contractures. On examination, Singaracharlu noted "[p]atient has pain with palpation diffusely over the anterior shaft of the tibia, dorsum of the foot, as well as the medial arch of the foot." (AR 302.) While the examination had to be cut short because of Pazour's "extreme distress and behavior," Pazour "appeared to have some motor weakness with knee extension." (AR 302-03.) The doctor also noted that other areas revealed no tenderness and that she had "normal range of motion of the hip and knees." (Id.) A few days later, Dr. Singaracharlu administered a transforaminal epidural steroid injection. (AR308.)

         On February 18, 2008, Pazour saw Jeffrey Jones, M.D., for a second opinion about surgery, having already seen Dr. Abernathey, who determined that she was not a surgical candidate. Dr. Jones noted some pain and weakness during the physical examination, but similarly concluded that she was not a surgical candidate, suggesting that she work on pain management through a simulator procedure, further epidurals or facial blocks. (AR 532.)

         On March 10, 2008, Pazour saw another surgeon Dr. Douglas T. Sedlacek, who noted that she had been off work since December, having experienced an episode of acute right radicular pain in October that had not improved. Pazour reported that the epidural steroid injection had not provided relief, so Dr. Sedlacek prescribed different medications, Cymbalta and Gabapentin. Sedlacek also suggested she try a lumbar epidural block, which he administered once a month in March, April and May. (AR 327-29, 339, 341.)

         Pazour saw Dr. Sedlacek again in June, and specifically requested that she be allowed to return to an 8-hour day. (AR 361.) Despite Sedlaceks note granting approval, Pazour continued to seek treatment for her chronic pain. Also in June she underwent a RACZ procedure by Dr. Tork Harman, which did not significantly improve her pain.[2] (AR 362-63.) Later that fall, Pazour continued to see Dr. Sedlacek, along with another physician, Dr. Kline, discussing other treatment options. At an appointment on November 8, 2008, Dr. Sedlacek changed her pain medications, suggesting that she should consider the dorsal column stimulator offered by Dr. Kline. (AR 367-68; see also AR 386-87 (another appointment with Sedlacek to discuss pain management options).)

         In February 2009, Pazour had the stimulator procedure with Dr. Kline. (AR 392-96.) Unfortunately, she reported that the procedure exacerbated her pain (AR 502.) During an appointment with Dr. Sedlacek on September 9, 2009, Pazour reported being "somewhat stable on her medications," but still complained of pain ranging from 3 to 9 on a 0 to 10 scale. Dr. Sedlacek again changed her prescription medications. (AR 503.)

         In addition to recurring back pain radiating down her right leg, Pazour suffered from left knee pain. A May 2008 scan of her left knee revealed "degenerative changes in the medial knee joint compartment." (AR 352.) In December 2008, Dr. Daniel C. Fabiano operated on her left knee. (AR 373.) That surgical procedure proved unsuccessful as well, and Pazour has a complete knee replacement in April 2009. (AR 397, 413.) Pazour subsequently completed 19 sessions of physical therapy. (AR 449.) Follow-up appointments indicated that Pazour was healing well. (AR 556, 559.) Indeed, by October 15, 2009, Pazour reported "no pain at all," and that she "forgot [she] had surgery" (AR 560.)

         2. Post-Alleged Onset Date

         While this earlier medical record provides context for Pazour's complaints of pain, she claims an alleged disability onset date of December 2009. In a December 14, 2009, appointment with Dr. James R Lamorgese, for low back and right leg pain with numbness and tingling, Pazour reported pain problems dating back to 2006 and her unsuccessful surgeries in 2002 and 2004 to relieve her pain. She further reported that: "standing, walking, handling, lifting exacerbates the pain. Rest helps to some extent, but does not really relieve it." (AR 572.) Lamorgese also notes that she rated her pain at ¶ 3 to 8 on a 10-point scale. Lamorgese reviewed her treatment to date, and noted that Pazour's pain medication provided "minimal relief of pain." (AR 572.)

         Still, in reviewing her acts of daily living, Dr. Lamorgese noted that her pain "reveals only mild to moderate interference." (AR 573.) Moreover, upon administering the Oswastry Low Back Pain Scale, Pazour scored a 26, which showed mild to moderate impairment. (AR 573.) Her physical examination also revealed normal low back anatomy, with no atrophy, but left knee reflex was trace, and there was "marked decreased vibratory sensation at the big toe in both feet." (AR 573.)

         Following that first appointment in December 2009, Dr. Lamorgese's initial impression was "chronic back and right leg pain with sensory changes secondary to the epidural scarring at the L5-Sl level." (AR 573.) He recommended continued conservative care, with medication (oxycodone, tramadol). He further scheduled to see her again in one month. Ultimately, Dr. Lamorgese would see Pazour roughly every four to ...

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