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GREATHOUSE v. HALTER

January 13, 2003

CRAIG M. GREATHOUSE, PLAINTIFF,
v.
WILLIAM A. HALTER, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT



The opinion of the court was delivered by: P. Michael Mahoney, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Craig M. Greathouse, ("Plaintiff"), seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner"). See 42 U.S.C. § 405(g), 1383(c)(3). The Commissioner's final decision denied Plaintiff's application for Supplemental Security Income ("SST") pursuant to Title XVI of the Social Security Act (the "Act"). 42 U.S.C. § 1602, 1614(a)(3)(A). This matter is before the Magistrate Judge pursuant to consents filed by both parties on March 19, 2001. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73.

I. BACKGROUND

Plaintiff filed for SSI on June 30, 1997, alleging disability beginning on February 28, 1997. (Tr. 62-65). Plaintiff's application for benefits was denied on October 15, 1997. (Tr. 65). On October 22, 1997, Plaintiff filed a request for reconsideration. (Tr. 69). Plaintiff's request for reconsideration was denied on November 26, 1997. (Tr. 71). Plaintiff then filed a request for a hearing before an Administrative Law Judge ("ALJ") on December 24, 1997. (Tr. 74). Plaintiff appeared, with counsel, before an ALJ on August 4, 1998. (Tr. 32). In a decision dated January 13, 1999, the ALJ found that Plaintiff was not entitled to SSI (Tr. 19-26). On February 28, 1999, Plaintiff requested a review of the ALJ's decision by the Appeals Council. (Tr. 13). On October 2, 2000, the Appeals Council denied Plaintiff's request for review. (Tr. 8).

II. FACTS

Plaintiff was born on September 14, 1956, (tr. 62), and was forty-two years old at the time of his August 4, 1998 hearing before the ALJ. (Tr. 35). Plaintiff has completed his education through the twelfth grade. (Tr. 116). At the time of the hearing, Plaintiff, single, was living with a roommate. (Tr. 35-36). Plaintiff is a heavy smoker who allegedly smokes around three packs a day. (Tr. 48).

At the August 1998 hearing, Plaintiff testified that he stopped working after his February 28, 1997 accident. (Tr. 37). Allegedly, on February 28, 1997, Plaintiff, a truck driver, was involved in an accident whereby the semi truck he was driving rolled over causing him injury to his back. (Tr. 143). When asked by the ALJ to place parameters on his back pain (on a scale from 1 to 10 with 10 being the worst), Plaintiff testified that at times his back is a 10. (Tr. 39). However, Plaintiff also stated that his back is not a 10 all the time and, in fact, Plaintiff stated that, at the time of the hearing, he had not experienced extreme pain in his back for approximately three to four weeks. (Id.). On a normal day, Plaintiff stated his back is probably a 4. (Tr. 40).

At the hearing, Plaintiff testified that he was currently taking Elavil and a strong aspirin to help with his back pain. (Tr. 37). Additionally, Plaintiff stated that a hot shower helps the most to combat his back pain in addition to medication. (Tr. 41). Throughout the day, Plaintiff testified that the pain comes and goes depending on the type of activity he is involved in, but that the mornings are usually the worst until Plaintiff can limber up and take his medications. (Id.).

In terms of his activities, Plaintiff stated that he can walk a maximum of eight blocks and then he starts to get sore. (Id.). After walking the maximum, Plaintiff stated he would have to lay down on his back for about twenty minutes to a half hour for the pain to decrease. (Tr. 41-42). With regards to sitting, Plaintiff stated he usually can sit for about forty-five minutes to an hour but then must get up because his lower back hurts too much. (Tr. 44). At this point, Plaintiff must stand for maybe ten or fifteen minutes before the pain starts to decrease. (Id.).

In terms of his normal daily activities, Plaintiff stated most of his activities depend on what he did the day before and whether his back is still in pain from the prior day. (Tr. 42). However, it appears on most days, Plaintiff gets up, takes a nap, "putters" around, maybe drives over and visit a few friends, watches t.v., does the dishes, and goes fishing. (Id.). When asked whether Plaintiff fishes off the bank or fishes in a boat, Plaintiff stated he fishes off the bank but that he is unable to cast like he used to because casting causes pain in his back. (Id.). Additionally, Plaintiff is able to do his own laundry and his own cooking but he must do each chore in portions so as to do a little at time and not everything at once. (Tr. 43). Other daily tasks, such as putting on his shoes and clothes, Plaintiff stated he has a hard time performing. (Tr. 48).

When asked by the ALJ, Plaintiff stated, as long as he did not move wrong, he could pick up 10 pounds with no problem. (Tr. 45). Additionally, Plaintiff testified that he helped his aunt move her couch, although the Plaintiff stated that was not really lifting but rather lifting a little bit and then pushing. (Tr. 46). Uastly, in terms of lifting, Plaintiff stated he is able to lift a gallon of milk by the handle off the shelf at the grocery store. (Id.).

When questioned by his own attorney, Plaintiff stated that he has no skills other than being a truck driver. (Tr. 49). Allegedly, Plaintiff attempted to work in a factory after his injury, but was unable to continue such work because of his back. (Id.). Specifically, Plaintiff stated that his job required him to take one-pound packages off the lift and place them in boxes, but the repetition of the activity was too much for Plaintiff. (Id.). During this job, which lasted for two days, Plaintiff testified he had to lie down during his shift for fifteen minutes until his back pain decreased. (Id.). Plaintiff would do this a couple times during the day.

In addition to his back pain, Plaintiff stated he goes through bouts of depression. (Tr. 50). Plaintiff's depression causes him, according to Plaintiff, to become very irritable and angry. (Tr. 51). Plaintiff stated he gets very little sleep because his back pain causes him to wake up every couple of hours. (Id.). Plaintiff appears to attribute most of his depression to the loss of his father and his lack of financial stability. (Tr. 51-52).

Vocational expert, James Ragains, appeared before the ALJ at Plaintiff's August 1998 hearing. (Tr. 53). The ALJ directed Mr. Ragains to assume an individual with Plaintiff's vocational characteristics and the following limitations: the "individual is limited to a full range of light work*fn1, except that there should be no lifting of more than 10 pounds. There should be reduced interaction with others . . . [and] no continuous repetitive movements of the upper extremities." (Tr. 57). Mr. Ragains, in response, stated at the light exertion level, there are unskilled cleaning jobs such as office cleaning (30,000 jobs in Illinois) that a person with Plaintiff's characteristics and limitations could perform. (Tr. 58). Additionally, Mr. Ragains stated there are some unskilled cashiering jobs or gas station type jobs (30,000 jobs in Illinois) that a person with Plaintiff's characteristics and limitations could perform. (Id.). When directed to assume sedentary jobs*fn2 with reduced interaction with others, Mr. Ragains stated such a person would be unemployable. (Id.).

III. MEDICAL HISTORY

Plaintiff was born on September 14, 1956. (Tr. 62). On February 28, 1997, Plaintiff, a truck driver, was involved in an accident whereby the semi truck he was driving rolled over causing him injury to his back. (Tr. 143). However, Plaintiff's medical record pre-dates his February 1997 accident.

On March 21, 1996, Plaintiff saw Dr. Martin Goldstone of the Illinois Valley Community Hospital regarding Plaintiff's bouts with depression. (Tr. 215). Dr. Goldstone reported that about four months prior, in December 1995, Plaintiff's business venture went bad causing Plaintiff to be depressed and contemplate suicide. (Id.). After seeing Dr. Goldstone, Plaintiff saw Dr. Joseph Chuprevich. (Tr. 207). Dr. Chuprevich diagnosed Plaintiff as suffering from a depressive disorder and admitted Plaintiff to the Omega Unit. (Id.).

On March 22, 1996, Jeane Pfalzgraf, a therapist in the Illinois Valley Community Hospital's Omega Unit did a comprehensive assessment of Plaintiff. (Tr. 218). Ms. Pfalzgraf reported that Plaintiff told her that his depression stems from his loss of $35,000 six months prior to March 1996 because of a bad business deal and the loss of his uncle three weeks prior. (Id.). Plaintiff also reported to Ms. Pfalzgraf that he abuses alcohol, can only sleep during the day and not at night, and that he has suicidal thoughts but no plan or intention on acting on those thoughts. (Id.). In her report, Ms. Pfalzgraf reported that Plaintiff appeared disheveled yet cooperative and somewhat guarded. (Tr. 220). Plaintiff's motor activity was normal to high psychomotor agitation at times with noticeable pacing and restlessness. (Id.). In terms of his mood, Ms. Pfalzgraf noted that Plaintiff appeared to be in a depressed mood with low energy and minimal expressiveness. (Id.). Plaintiff was ultimately discharged from the Omega Unit on March 22, 1996. (Tr. 228).

On February 28, 1997, Plaintiff attempted to turn his semi truck on U.S. Highway 30 but because of the weather and road conditions, his load shifted and his semi rolled over. (Tr. 311). Initially, it appears Plaintiff refused any treatment at the scene of the accident and instead checked himself into a motel for the night. (Id.). However, the next day his back started to hurt and Plaintiff went to Parkview Memorial Hospital in Fort Wayne, Indiana to have his back checked. (Id.). Plaintiff's orthopedic examination, performed by Dr. Thomas Dykstra, revealed:

Cervical spine was nontender. Dorsal spine was contender. Lumbar spine showed some paraspinious spasm, but there was no bruising nor abrasions. The left traperial muscle had a bruise on it, but [Plaintiff] had no clavicular or supraclavicular pain. [Plaintiff] had no shoulder pain, elbow or wrist pain. [Plaintiff] had a superficial abrasion over the hypothenar eminence at its most ulnar aspect. Distal neurovascular status was intact and equivocal bilaterally to both hands. Back definitely had costovertebral angle tenderness bilaterally, right greater than left. Pelvis was stable to rock. Lower extremities were contender. [Plaintiff] had a little bruising to his knees and abrasions but he had walked on these. [Plaintiff] said these felt good. Distal neurovaseular examination of his lower extremities were intact and equivocal bilaterally. Cranial nerves II through XII were intact and otherwise as above.
(Tr. 311-312). Dr. Dystra diagnosed Plaintiff as suffering from: acute bilateral kidney contusions with microscopic hematuria, minor close head injury without loss of consciousness, multiple contusions and abrasions, and lumbar strain. (Tr. 312). Dr. Dykstra prescribed Lortab, Norflex and ibuprofen and then discharged Plaintiff (Id.).

On April 3, 1997, back in Illinois, Plaintiff saw Dr. Gregory Shenk, Radiologist, of the Illinois Valley Magnetic Resonance Imaging Center. (Tr. 233). Dr. Shenk found that Plaintiff had

A large left ventral central extradural defects [sic] present upon the thecal sac at the L2-L3 disc space level best visualized on axial T1 images #5 & #6. The left L3 nerve root is displaced posteriorly and left laterally. A right ventral central extradural defects [sic] noted upon the thecal sac at the L4-L5 disc space level best visualized on axial images #11 & #12. Normal height but decreased T2 signals present from the [sic] all the lumber intervertebral disc spaces except fro the L1-L2 disc. The psoas paraspinal muscles, abdominal aorta, inferior vena cava and conus medulliaris are normal. Schmorl's nodes present within the inferiror L1 vertebral body endplate.
(Tr. 233). Dr. Shenk reported Plaintiff was suffering from degenerate left centrally herniated L2-L3 disc which is displacing the left L3 nerve root posteriorly and left laterally. (Id.) Additionally, Dr. Shenk noted degenerated right centrally bulging questionably herniated L4-L5 disc with questionable posterior displacement of the right L5 nerve root. (Id.).

On April 24, 1997, Plaintiff saw Dr. Wayne Roden of Physical Medicine and Rehabilitation a Associates. (Tr. 249). Dr. Roden performed an electroneurodiagnostic study of Plaintiff's lower extremities and related lumbar and sacral paraspinal areas. (Id.). In terms of Plaintiff's EMG, Dr. Roden reported abnormal muscle membrane irritability present in the left L2, bilateral L5, and right S1 paraspinal areas. (Id.). Additionally, Dr. Roden found membrane irritability present in the left vastus medialis, right posterior tibialis, extensor hallucis longus, and peroneus longus muscles. (Id.). With regard to Plaintiff's NCS, Dr. Roden reported Plaintiff's left and right tibial H reflexes were within normal limits. (Id.). The left and right common peronela latencies, velocities, evoked responses, and F waves were within normal limits. (Id.). Additionally, the left and right tibial latencies, velocities, evoked responses, and F waves were within normal limits. (Id.). Overall, Dr. Roden opined that his findings were consistent with the presence of an active motor nerve root compromise that appeared to involve primarily the right L5 nerve root with possible additional involvement of the right S1 nerve root. (Tr. 250). Also, Dr. Roden reported his ...


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