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YNOCENCIO v. BARNHART

January 27, 2004.

MARISELA YNOCENCIO, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security Defendant



The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

  Plaintiff Marisela Ynocencio ("Claimant" or "Plaintiff") seeks judicial review of the final decision of the Commissioner of Social Security, Jo Anne B. Barnhart ("Commissioner"), denying her application for Disability Insurance Benefits ("DIB") under § 216(i) and § 223 of the Social Security Act. 42 U.S.C. § 416(i), 423(d). This case comes to this Court on cross-motions for summary judgment. Plaintiff raises the issues of whether the Administrative Law Judge ("ALJ") properly disregarded the testimony of Claimant's treating physician in favor of the testimony of the Medical Expert ("ME") and whether the ALJ committed legal error by failing to clarify important ambiguities in the record, resolve conflicts, and obtain important medical information. For the reasons stated below, Claimant's motion for summary judgment is granted and the Commissioner's motion Page 2 for summary judgment is denied. The case is remanded to the Commissioner for further proceedings.

  II. BACKGROUND

 A. PROCEDURAL HISTORY

  Claimant applied for DIB on September 11, 2001, claiming that she became disabled on September 14, 2000. R. 84-86. Her application was denied on October 17, 2001, R. 66, and she filed a timely request for reconsideration on October 31, 2001, R. 72, which was denied, R. 67. On April 26, 2002, Claimant requested an administrative hearing.

  On April 3, 2003, ALJ James A. Horn conducted a hearing at which Claimant, who appeared with counsel, and ME Dr. George Tsatsos testified. R. 32-65. ALJ Horn issued a decision on May 27, 2003, denying Claimant's application for DIB on the grounds that Claimant was not disabled because she retained the residual functional capacity ("RFC") to perform a full range of sedentary work. R. 11-18. Claimant timely requested a review of the ALJ's decision by the Appeals Council, R. 10, which denied the request on July 25, 2003, R. 5-9. Thus, the ALJ's decision is the final decision of the Commissioner. Claimant filed a timely complaint with this Court on August 22, 2003, and jurisdiction is proper pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3). Page 3

 B. HEARING TESTIMONY

  1. Claimant's Testimony

  At the time of the administrative hearing, Claimant was a thirty-one year-old married woman with a ninth-grade education and two children, ages ten and four. R. 41. Prior to September 2000, Claimant had worked in various positions, such as waitress, cashier, and stock person, at retail stores and at restaurants. R. 42-43. Her most recent position was as a department supervisor at a Kohl's store in Batavia, Illinois. R. 41. Her duties as department supervisor included moving part of the store's stock from the dock and the stockrooms to the display racks on the main floor of the store. R. 42. She has not worked since September 2000. R.43.

  Claimant stated that she presently can not work because she can "barely do anything" as a result of the pain in her neck caused by a work-related injury that occurred on September 14, 2000. See R. 41, 43, 46. She complains of constant pain running from the back of her neck, down her spine, into her right shoulder, and down her arm to her elbow. R. 46-48, Turning her neck and sitting too long tend to cause an increase in the pain. R. 52. Claimant testified that she can sit only for a duration of twenty to thirty minutes. R. 53. She also states that she can not stand or walk for long periods of time. R. 118. Claimant has received injections for the pain, but they have given her only "a little bit" of relief for only a couple of days. R. 48-49. Narcotic pain relievers are ineffective because she has problems with dependency and has gone through withdrawal in the past. R. 44. To manage the pain, she Page 4 takes Tylenol or Advil, R. 49. To relieve the pain, she must lay down several times a day for an hour or more at a time. R. 48,

  A typical day for the Claimant involves preparing something for her child to eat in the morning and laying on the couch to watch television, R. 52. The extent of her activities involves tending to her children. Id. Her husband does the cleaning. Id. Although Claimant states that she can not drive because she can not move her neck, she also states that she does drive when she takes her older child to and from school or when someone can provide her with side vision. R. 118.

  2. Dr. Bruce Montella — Treating Physician

  The testimony of Claimant's treating physician, Dr. Bruce Montella, an orthopaedic surgeon, was presented to the ALT in the form of an evidence deposition taken for the purpose of Claimant's workers compensation claim. R. 49, 188. Dr. Montella first saw Claimant on May 17, 2001, at which time he physically examined her, finding no "inconsistency or incongruency in the way she described her symptoms or behaved." R. 190-91. He determine that she had ongoing spasms around her neck and "limited cervical spine range of motion on all planes with reproduction of symptoms in extremes of cervical range of motion" resulting from an injury sustained at work while doing heavy lifting. Id. A review of Claimant's MRJ revealed disc bulges at C5-6 and C6-7, as well as a larger bulge or protrusion at C4-5. R, 191. Dr. Montella prescribed non-operative treatments and concluded that "it was unreasonable for her to participate in work in any way." R. 191-92. Page 5

  On May 26, 2001, Claimant underwent an EMG study, which Dr. Montella found to be normal. R. 192, He remarked, however, that an "EMG is noted to be insensitive to determining the presence of pathology," which he opined to be true in this case. Id.

  By June 29, 2001, Dr. Montella surmised that Claimant's condition was not improving with the non-operative treatment he had prescribed, so he recommended and performed four series of epidural steroid injections with limited transient benefit. R. 193.

  On July 14, 2001, Dr. Montella admitted Claimant to Alexian Brothers Medical Center for intractable pain of the nature he had been treating. Id. At that time, another MRI was performed of Claimant's cervical spine. Id. That MRI generally was consistent with Claimant's prior MRI, but there were changes at discs C4-5 and C5-6 and more pronounced changes at disc C3-4. R. 194.

  Dr. Montella then referred Claimant to Dr. Scott Greenwald for a second opinion on July 16, 2001. Id.; R. 144. According to Dr. Montella, Dr. Greenwald's prognosis of Claimant's condition was essentially the same as his own, and Dr. Greenwald ordered another series of injections on July 18, 2001. R. 194-95. After that set of injections, Claimant experienced persistent and debilitating pain that was managed by oral pain medications. R. 195.

  Dr. Montella next examined Claimant on August 2, 2001. Id. At that time, Claimant had ongoing difficulties consistent with prior evaluations. R. 196. Dr. Montella continued Claimant on pain management with oral medications, considered additional injections, Page 6 prescribed anti-inflammatories and physical therapy, and recommended that she not work. Id. Between August 30, 2001, and December 23, 2002, Claimant's last visit with Dr. Montella, Dr. Montella evaluated Claimant eleven times, finding no significant changes in her condition. R. 196-202. His assessment of her condition did not change, and the only change to her pain management strategy came in the form of narcotic medications, to which she had an allergic reaction that hospitalized her on December 13, 2001. Id.

  Dr. Montella's final diagnosis is that Claimant has cervical disc herniation at multiple levels and subsequent cervical radiculitis. R. 202, 205. He believes the condition is permanent. R. 202. Surgery, according to Dr. Montella, is a last resort because multiple levels of pathology diminish the likelihood of surgical benefits and increases the morbidity inherent in the surgery. R. 205.

  3. Dr. George Tsatsos — Medical Expert

  Dr. George Tsatsos, an orthopaedic specialist, testified as the medical expert. R. 54-64, 81. He reviewed Claimant's medical records but never examined her. R. 59. Dr. Tsatsos's review of the medical records indicates that Claimant has degenerative disc disease of the cervical spine and symptoms of radiculopathy going down to the right lower extremity. R. 56. Her neurological exams were normal. Id. That leaves an element of pain remaining. Id. Consequently, Dr. Tsatsos opines that Claimant's condition does not meet or equal a listing. Id. Page 7

  Dr. Tsatsos concluded that Claimant could lift twenty pounds occasionally and ten pounds less than frequently, making the work level she would be capable of performing sedentary with some light work. R. 56-57. In other words, she could pull or push ten or twenty pounds occasionally but not necessarily lift that much. R. 57. She would have to use her right hand to assist her left hand, and she would have to take over-the-counter pain medication to do this level of work. R. 57-58. One hour breaks would be too long for her condition. R. 58-59.

  Dr. Tsatsos testified that Dr. Montella's finding of disc problems at multiple levels was accurate. R. 59. However, he expressed concern with Dr. Montella's diagnosis of herniated discs because such a diagnosis was at odds with the radiologist's MRI report, which indicates degenerative disc disease. R. 59-60. Dr. Tsatsos noted that Dr. Montella also referred to the discs as bulging, which is a different condition, and speculated that Dr. Montella may have had a "slip of the tongue" when he said the discs were herniated. R. 61. It was unclear to Dr. Tsatsos whether Dr. Montella intended to say "herniated." Id.

  Dr. Tsatsos concluded that the record does not support a pathology severe enough to cause pain as intense and persistent as Claimant claims to suffer because the discs do not impinge upon the spinal cord and the EMG tests were normal. R. 57. However, he could not disagree with Dr. Montella's testimony about Claimant's subjective symptoms, such as neck spasms and radiating arm pain, R. 61-62, and admitted that there would be some pain, R. 57, Page 8 Furthermore, he agreed with Dr. Montella's use of conservative treatment and stated that dissuading Claimant from surgery was appropriate. R. 62-63.

 C. OTHER MEDICAL EVIDENCE

  1. Objective Medical ...


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