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Reider v. Astrue

July 11, 2008


The opinion of the court was delivered by: Magistrate Judge Susan E. Cox


Plaintiff Alan Reider seeks judicial review of a final decision denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act.*fn1 The parties have filed Cross-Motions for Summary Judgment; plaintiff seeks a judgment reversing or remanding the Commissioner's final decision, while the Commissioner seeks a judgment affirming his decision. For the reasons set forth below, plaintiff's motion is denied and defendant's motion is granted.


On March 22, 2005, plaintiff filed an application for DIB and a period of disability beginning on October 29, 2004.*fn2 He alleged that severe lower back pain limited his ability to work by preventing him from concentrating or sitting for more than thirty minutes at a time.*fn3 Plaintiff's claim was denied on June 17, 2005.*fn4 Plaintiff then filed a request for reconsideration on June 24, 2005, which was denied on July 29, 2005.*fn5 On August 22, 2005, plaintiff requested a hearing before an Administrative Law Judge ("ALJ").*fn6 Plaintiff's request was granted and a hearing took place before ALJ Cynthia Bretthauer on September 13, 2006.*fn7 Following the hearing, the ALJ issued an unfavorable decision, finding plaintiff not disabled at any time from October 29, 2004 through the date of the decision, September 29, 2006.*fn8 Plaintiff then filed a request for review of the ALJ's decision with the Social Security Administration Appeals Council ("Appeals Council") on November 9, 2006.*fn9 The Appeals Council granted plaintiff's request and remanded the case to the ALJ on February 8, 2007.*fn10 Plaintiff received a second hearing before ALJ Bretthauer, which took place on June 5, 2007.*fn11 On June 29, 2007, the ALJ issued a second unfavorable decision, finding plaintiff not disabled at any time from October 29, 2004 through that date.*fn12 Plaintiff again filed a request for review of the ALJ's decision, which was denied by the Appeals Council on November 2, 2007. The ALJ's June 29 decision thus stands as the final decision of the Commissioner.*fn13

Plaintiff filed this action on December 28, 2007.


A. Introduction and Medical Evidence

The facts set forth under this subsection provide a brief review of plaintiff's background and the events which led to his application for DIB and a period of disability. They are derived from the medical record, which the ALJ reviewed at both hearings and considered in its entirety when rendering both of her decisions.

Plaintiff was born on November 2, 1964, making him forty-two years old on the date the ALJ issued her final decision.*fn14 He completed high school, received a degree from a four-year college and undertook special job training in software development.*fn15 Between February 1990 and October 2004, he held seven different jobs as either a lab technician or a database administrator.*fn16 On his first Disability Report dated March 15, 2005, plaintiff indicated that he first began experiencing severe lower back pain in 1995.*fn17 Though he was able to continue working for the next nine years, plaintiff alleged that his back pain prevented him from being able to work as of October 29, 2004 because it limited his ability to concentrate or sit for more than thirty minutes at a time.*fn18

On September 15, 2004, plaintiff went to North Shore PET/CT MRI Centre in Skokie, Illinois for a magnetic resonance image ("MRI") of his lumbar spine.*fn19 The MRI indicated disk bulges at the L4-5 and L5-S1 levels, causing mild-to-moderate central stenoses and mild biforaminal stenoses.*fn20 Plaintiff's treating physician, Yuri Shapiro, M.D., discussed the MRI results and provided an overview of plaintiff's back problems in an April 22, 2005 dictation report made one week after plaintiff was examined by Dr. Shapiro.*fn21 In the report, Dr. Shapiro indicated that he first examined plaintiff on March 5, 1998. Though plaintiff reportedly experienced low back pain radiating to the right buttock since November 1996, his pain worsened in the months prior to the April 2005 visit. Treatment with Voltaren resulted only in mild improvement. Plaintiff's physical examination during the April 2005 visit was also significant for positive straight leg syndrome on the left side.*fn22

Dr. Shapiro then discussed the September 2004 MRI. He confirmed the finding of stenosis and reported that plaintiff had received multiple courses of physical therapy as well as epidural steroid injections, all without significant improvement.*fn23 He further opined that plaintiff was only able to sit for one hour before being required to rest in bed for two hours to alleviate pain, and was thus unable to work.*fn24 The findings of stenosis and inability to sit for more than one hour were subsequently confirmed in a May 17, 2005 examination report by a Dr. Simkina,*fn25 who also made a diagnosis of chronic pain syndrome.*fn26 Two months later, Dr. Shapiro reiterated his belief that plaintiff was unable to work in a second dictation report. He also reported that a neurologist, Dr. Simpkins,*fn27 had completed a nerve conduction study of plaintiff's lower extremities and concluded that plaintiff was unable to sit for more than one hour.*fn28

However, other evidence challenges Dr. Shapiro's findings regarding the severity of plaintiff's physical limitations resulting from his back problems. A May 24, 2005 Residual Functional Capacity Assessment ("RFCA") by state agency physician Charles Kenney, M.D. concluded that despite plaintiff's spinal stenosis, he could still lift or carry twenty pounds occasionally and ten pounds frequently, push or pull with no additional difficulties, stand for at least two hours and sit for about six hours in an eight-hour workday.*fn29 Dr. Kenney's findings were later affirmed by another state agency physician, Boyd McCracken, M.D., in July 2005.*fn30 Further, the results of a Physical Work Performance Evaluation ("PWPE") conducted by physical therapist Susan Hardin on June 7, 2005 indicated that while plaintiff was unable to work at the medium exertional level, he was likely to tolerate an eight-hour workday at the light exertional level.*fn31 Ms. Hardin also noted that plaintiff's self-limiting behavior, which resulted from increasing pain and fatigue and fear of high levels of pain following the test, reduced his participation level by 50% and heavily influenced the results of the PWPE.*fn32

On August 9, 2005, plaintiff was examined by Victor E. Nutenko, M.D., a psychiatrist.*fn33 At the examination, plaintiff complained of insomnia, weight loss of approximately thirty pounds and feelings of depression. Dr. Nutenko noted that plaintiff's medical history included anxiety, depression, spinal stenosis, lumbar disk disease, cardiac arrhythmia and chemical dependence.*fn34 He diagnosed plaintiff with a major depressive disorder and prescribed Zoloft.*fn35

Dr. Nutenko's progress notes detailing plaintiff's depression treatment indicated fluctuation in plaintiff's condition over the eighteen months following the initial August 2005 examination. Only minimal improvement was indicated by Dr. Nutenko in his notes dated October 2005, but by December 2005 his notes indicated that plaintiff was better, in general, on Zoloft.*fn36 While his notes from January 2006 indicated no apparent improvement, those from March and May of 2006 indicated less preoccupation with negative thoughts.*fn37 The notes from January 2007 indicated less negativity, depression and pessimism, while those from February 2007 reported that plaintiff's condition had worsened due to increased depression and apathy.*fn38 On a Social Security Medical Questionnaire dated March 7, 2007, Dr. Nutenko indicated that plaintiff suffered from moderate restrictions with regard to daily living, social functioning and a variety of mental activities; a marked ability to accept instructions and respond appropriately to criticism; and repeated episodes of deterioration or decompensation in work or work-like settings.*fn39

B. The September 13, 2006 Hearing

Plaintiff's first hearing before the Social Security Administration took place on September 13, 2006 in Evanston, Illinois. Plaintiff appeared in person and was represented by his attorney at the time, Neil Good. A vocational expert ("VE"), Lee Knutson, testified as well.*fn40 At the hearing, plaintiff responded to questions from the ALJ. He first discussed his educational background and work history, noting that he has no pension and has had no income since he stopped receiving disability from his last employer in 2005.*fn41 When asked by the ALJ to explain why he refused to continue working at his most recent job, plaintiff disputed the ALJ's characterization of the circumstances of his unemployment, saying that he could not work because his previous employer was unwilling to hire him given his need for bed rest.*fn42 He also disputed the results of the June 2005 PWPE, claiming that he was in such pain that he had to interrupt the evaluation.*fn43 He also stated that his physical therapy sessions failed to lead to any improvement in his condition.*fn44 When asked by the ALJ about his depression, plaintiff reported experiencing occasional crying spells, though he thought they were not severe.*fn45 He then answered questions about his exercise routine, which consisted of stomach exercises, ten- or fifteen-minute stationary bike rides and twenty minute walks each day.*fn46 When asked by the ALJ about his hobbies, plaintiff said he enjoyed reading novels and Popular Science frequently to keep his mind occupied.*fn47

The ALJ then asked plaintiff about his travel habits. Plaintiff said that he didn't leave town or go out to the movies or to restaurants other than for fast food.*fn48 However, he said that he took a two-week vacation to Mexico in the winter of 2005, during which he swam in salt water to ease his back pains.*fn49 Finally, plaintiff's attorney briefly questioned plaintiff and elicited responses about his origins in Russia, his education, the severity of his pain and his need to rest for two hours for each hour of activity.*fn50

The VE, Mr. Knutson, testified next. He first categorized plaintiff's prior database administrator position as a skilled and sedentary job under the Department of Labor's Dictionary of Occupational Titles ("DOT").*fn51 The ALJ then asked the VE whether a person with plaintiff's work experience and education and certain exertional limitations would still be able to perform plaintiff's past work.*fn52 The exertional limitations given by the ALJ consisted of the ability to sit for six to eight hours per day; to stand and walk for about six hours per day; to lift and carry up to ten pounds frequently and up to twenty pounds occasionally; and to occasionally stoop, crawl, crouch, kneel and climb stairs and ramps, but not to climb ladders, ropes or scaffolds. The VE said such a person could perform the database administrator position, but not the lab technician position because that job was categorized in the light exertional level.*fn53 Though the VE testified that a person who had to lie down during the day could not hold the database administrator job, he said such a person would still be employable if he or she only had to sit and stand occasionally.*fn54

C. The ALJ's September 29, 2006 Decision

In her decision dated September 29, 2006, the ALJ ruled that plaintiff was not disabled and thus was not entitled to DIB or a period of disability.*fn55 The ALJ's decision followed the five-step sequential evaluation process outlined in 20 C.F.R. § 404.1520(a). Before beginning the five-step process, the ALJ determined that plaintiff met the insured status requirements of sections 216(I) and 223 of the Social Security Act,*fn56 meaning that he acquired sufficient quarters of coverage to remain insured through December 31, 2009.*fn57 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since October 29, 2004 as defined in 20 C.F.R. § 404.1520(b).*fn58 The ALJ then found at step two that plaintiff had a combination of impairments qualifying as severe under the Social Security Regulations which included lumbar spine stenosis with bulging and adjustment disorder.*fn59

Though she found that plaintiff suffered from severe impairments, the ALJ concluded at step three that plaintiff's impairments did not meet or medically equal any of the listed impairments in Title 20 of the Code of Federal Regulations, Part 404, Subpart P, Appendix 1 because plaintiff's back impairment was not accompanied by the neurological deficits required by section 1.04(A) of the Listing of Impairments, or the inability to ambulate effectively required by sections 1.02(A) and 14.09.*fn60 With regard to plaintiff's mental condition, the ALJ found that the evidence only established functional limitations under the "B" criteria under section 12.04.

Next, the ALJ determined plaintiff's residual functional capacity ("RFC").*fn61 A claimant's RFC represents what they can still do despite their limitations.*fn62 Considering the entire record, the ALJ found that plaintiff had the RFC to lift or carry ten pounds; alternate between sitting and standing every thirty to forty-five minutes; occasionally stoop, crawl, crouch, kneel and climb stairs or ramps; and perform activities that do not require climbing ladders, ropes and scaffolds.*fn63 This conclusion was at odds with plaintiff's claim (as well as treating physicians' opinions) that plaintiff's pain precluded him from concentrating, lifting ten pounds or sitting for more than thirty minutes without needing to lie down.*fn64 The ALJ found that while plaintiff's impairments could reasonably be expected to produce the symptoms he alleged, his statements about the intensity, persistence and limiting effects of his symptoms were not entirely credible.*fn65 In support of this finding, the ALJ noted that plaintiff's June 2005 PWPE indicated he was capable of light work, and that plaintiff's primary care physician and a neurologist both opined that plaintiff was capable of sit/stand work.*fn66 In giving less weight to the ...

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