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Fischer v. Colvin

United States District Court, D. New Hampshire

October 30, 2014

Gloria Gean Fischer
Carolyn Colvin, U.S. Social Security Administration, Acting Commissioner.

MEMORANDUM AND ORDER Opinion No. 2014 DNH 227.

PAUL BARBADORO, District Judge.

Gloria Gean Fischer seeks judicial review of a ruling by the Commissioner of the Social Security Administration ("SSA") denying her application for Disability Insurance Benefits ("DIB"). For the reasons I discuss below, I conclude that the Administrative Law Judge ("ALJ") erred by failing to consult a medical advisor before determining that Fischer was not disabled as of her date last insured. Thus, I vacate the Commissioner's decision and remand for further administrative proceedings.


A. Relevant Medical and Other Documentary Evidence

Fischer was 41 years old when her insured status expired on March 31, 1998, and she was 56 years old on June 28, 2013, when the ALJ denied her claim. Fischer has a GED and she previously worked as a hairdresser, a retail store owner, and an operator of a small basket-making company.

1. Medical Evidence

On October 1, 1996, Fischer visited the Exeter Hospital Pain Clinic complaining of increasingly severe left buttock and left leg pain that began when she was injured after a fall in June 1996. The pain was worse with standing or sitting, and it woke her up at night. She also described transient paresthesias[2] in L4-5 and S1[3] distributions. On examination, Fischer had full range of motion in the lumbar spine, [4] tenderness in the spinous process in T2-T5[5] and at L4-5, and unusual paraspinal tenderness. She had good flexion and extension of her lower extremities, and she was able to toe and heel walk. Straight leg raise testing was positive at 90 degrees on the right and left. An MRI showed a bulge at L4-5. The attending physician diagnosed Fischer with sciatica[6] secondary to lumbar strain and administered an epidural steroid injection.[7] On January 6, 1998, Fischer underwent an MRI of her cervical spine to assess neck pain that was radiating to her left shoulder. The MRI was normal.

Fischer's insured status expired on March 31, 1998.

In October 1998, Fischer underwent an X-ray of her left hip and pelvis to rule out a bone abnormality or sacroilitis.[8] That study was also normal.

On March 31, 2004, Fischer visited Dr. Frank Graf, complaining of poor results from epidural blocks.[9] On examination, Fischer exhibited marked sensitivity in the sciatic notch on her left side, and she also had pain on passive range of motion of the hip joints. Dr. Graf noted that her X-rays and MRIs did not indicate any hip joint problem or sacroiliac joint problem, and her MRI of the lumbar spine suggested some degenerative disc changes with annular bulge but no disc herniation.[10] He recommended a pelvic examination with her internist, Dr. Braese, and an appointment with a physical therapist.

On May 27, 2004, Fischer underwent a physical therapy evaluation for a questionable diagnosis of piriformis syndrome[11]. Under the History section of the report, it was noted that Fischer had fallen off of a ladder seven years earlier onto her left hip with a twisting motion as she fell, and she had experienced problems with her left buttock and leg ever since. She had been treated with physical therapy, which did not help a great deal. Fischer complained that over the preceding few days she felt a constant pain in the left buttock and down into the lateral aspect of the leg, which she rated at a 7 on a scale of 0-10. While attempting to work out the pain, she had also been experiencing numbness and tingling in her left arm. She also noted that she began taking Ambien during the past week because the pain was making it difficult for her to sleep. The therapist administered a number of specific low back tests, including a piriformis test that yielded a "markedly positive" result on her left side and a straight leg raise that was positive for left lower back burning.

On August 14, 2004, Fischer underwent an MRI of the lumbar spine to evaluate complaints of left flank pain that radiated to the left leg. Fischer then underwent a second MRI of the lumbar spine on December 15, 2005.

On December 7, 2006, Fischer underwent an operation to implant a dual Octrode lead for a spinal cord stimulation trial.

On September 4, 2009, Fischer's treating primary care physician, Dr. Braese, noted that Fischer reported to him that she had ...

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