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Kellems v. Commissioner of Social Security

September 1, 2009

TINA KELLEMS, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, SUED AS MICHAEL J. ASTRUE, DEFENDANT.



The opinion of the court was delivered by: David G. Bernthal U.S. Magistrate Judge

ORDER

In June 2007, Administrative Law Judge David Thompson (hereinafter "ALJ") denied Plaintiff Tina Kellems' application for disability insurance benefits (hereinafter "DIB"). The ALJ based his decision on findings that, although Plaintiff suffers from severe impairments, she is capable of performing other jobs that exist in significant numbers in the national economy; therefore, she is not disabled within the meaning of the Social Security Act.

The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge.

In March 2008, Plaintiff filed a Complaint (#5) against Defendant Michael Astrue, the Commissioner of Social Security, seeking judicial review of the ALJ's decision to deny DIB. In December 2008, Plaintiff filed a Motion for Summary Judgment (#28). In March 2009, Defendant filed a Motion for an Order Which Affirms the Commissioner's Decision (#32). In April 2009, Plaintiff filed a Reply (#33). After reviewing the administrative record and the parties' memoranda, this Court DENIES Plaintiff's Motion for Summary Judgment (#28).

I. Background

A. Procedural Background

Plaintiff applied for DIB in February 2004, alleging disability beginning November 2, 2001. The Social Security Administration (hereinafter "SSA") denied Plaintiff's application in September 2004, and again upon reconsideration in May 2005. Plaintiff filed a Request for Hearing, and then testified at the hearing in April 2007. In June 2007, the ALJ denied Plaintiff's application for DIB based on findings that Plaintiff was not disabled within the meaning of the Social Security Act and that she was capable of performing jobs available in significant numbers in the economy.

In January 2008, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. Plaintiff then appealed this decision by filing a complaint in federal court pursuant to 42 U.S.C. § 405(g). Plaintiff seeks an outright reversal.In the alternative, she asks the Court to remand the case for reconsideration.

B. Plaintiff's Background

In 2001, Plaintiff saw Dr. Victoria Johnson and Dr. Randall Megeff on several occasions for joint, neck, shoulder, and low back pain and migraines. (R. 438-62.) In February 2001, Plaintiff underwent a total colectomy. (R. 501.) In March 2001, Dr. Eric Baddour gave Plaintiff a lumbar epidural steroid injection because of her low back pain, although straight leg raising was negative and his examination indicated no trigger points. (R. 454.) In April 2001, Plaintiff followed up with Dr. Johnson, and stated her epidural steroid injection had resolved most of her discomfort. (R. 451.) In June 2001, she told Dr. Megeff that she has been having suicidal ideations, but was not sure whether she would act on them. (R. 442.) In July 2001, Dr. Johnson noted that Plaintiff has stable hypertension, depression, fibromyalgia, restless leg syndrome, and hyperlipidemia. (R. 440.)

Between June 26, 2001, and August 15, 2001, Dr. Sherrie Levy treated Plaintiff for severe depression and suicidal thoughts, including admission to The Pavilion on a partial hospitalization and inpatient basis. (R. 162-247.) Plaintiff was subsequently discharged from the Pavilion on July 31, 2001, because she lost her job and "felt unable to continue with Partial Hospital due to financial reasons." (R. 163.) In August 2001, Dr. Johnson noted that Plaintiff had lost her job and was having significant problems with depression. (R. 438.) In November 2001, she visited Dr. Megeff because of her headaches and depression, although she denied suicidal ideations. Dr. Megeff directed her to continue with counseling at The Pavilion.

(R. 434.)

In February 2002, Plaintiff began seeing Dr. Judith Lee-Sigler for chronic pain management. (R. 417.) She reported neck, low back, and hip pain as well as headaches.

(R. 417.) Dr. Lee-Sigler noted that Plaintiff is a full-time student and mother, the primary care provider for her disabled husband, and she also cares for an elderly, wheelchair-bound woman.

(R. 419-20.) Dr. Sigler also noted that Plaintiff was taking an exercise class and walking 3.3 miles three times per week. (R. 420.) Dr. Lee-Sigler diagnosed fibromyalgia, cervical degenerative disc disease, and low back pain with a large biomechanical component. (R. 421.)

In March 2002, Plaintiff visited Dr. Lee-Sigler because she strained her lower back helping transfer a patient from the toilet to the wheelchair. (R. 412.) Then she visited Dr. Megeff because she strained her shoulder helping the elderly woman. (R. 411.) In April 2002, Plaintiff told Dr. Lee-Sigler that her low back pain had improved. (R. 406.) Dr. Lee-Sigler noted Plaintiff has fibromyalgia and myofascial pain, and prescribed occupational therapy for bilateral epicondyles and a myofacial release protocol for her cervicalgia and myofacial pain.

(R. 406.)

In May 2002, Dr. Lee-Sigler administered an injection for right forearm extensor tendinitis. (R. 398-99.) Plaintiff stated that she had to quit school, but she was still helping the elderly woman, despite the pain, because of financial need. (R. 398.) Dr. Lee-Sigler later administered trigger-point injections over Plaintiff's bilateral trapezius and rhomboids.(R. 393.)

In June 2002, Plaintiff reported her medications were not relieving her pain or headaches.

(R. 391.) Plaintiff requested Hydrocodone to "have on hand," and rejected trying different medications when her doctor would not refill her Hydrocodone prescription. (R. 390-91.)

In July 2002, Plaintiff followed up with Dr. Lee-Sigler regarding her chronic pain syndrome. (R. 383- 85.) Dr. Lee-Sigler expressed her concern that Plaintiff was on too many medications designed to do the same thing, therefore making their use inefficient. (R. 384.) Dr. Lee-Sigler discussed what changes she thought would be beneficial, and Plaintiff agreed to wean herself off some medications. (R. 384-85.) Plaintiff also presented to the emergency department for a chronic tension headache and was given injections of Toradol, Vistaril, and Ativan. (R. 487.)

In August 2002, Plaintiff visited Dr. Megeff, complaining that the change in medications had made her miserable. (R. 379-80.) Dr. Megeff was concerned about her narcotic use, and talked to her regarding continuing to wean herself off some medications. (R. 380.) Plaintiff later called in distress, wanting to quit all medications because she was tired of taking them. (R. 378.) Dr. Megeff changed Plaintiff's medications with the ultimate goal still being to get her off of narcotics. (R. 377.)

In September 2002, Plaintiff informed Dr. Megeff that she was feeling less groggy since she had discontinued two of her medications. (R. 371.) Plaintiff stated that she is still in chronic pain, so Dr. Megeff started her on an anti-seizure medicine, Neurontin, to aid with her pain.

(R. 371.) Plaintiff later visited during a fibromyalgia flare-up, and Dr. Megeff noted that she was tender to the touch everywhere on her body. (R. 369.)

In November 2002, Plaintiff consulted Dr. Lee-Sigler because she was in pain all over.

(R. 361-62.) Dr. Lee-Sigler opined that she has done everything she can think of to help Plaintiff, and recommended to Dr. Megeff that Plaintiff be sent to a chronic pain center.

(R. 362.) Later in the month, Plaintiff visited Dr. Lee-Sigler again wanting to know why Dr. Lee-Sigler would not treat her anymore. (R. 359.) Dr. Lee-Sigler explained that she was not comfortable with dealing with her treatment anymore, and that a chronic pain center would provide better care. (R. 359.) Plaintiff explained she has been using her husband's Darvocet and asked for a prescription of her own. Dr. Lee-Sigler gave her a prescription and then noted she will no longer see Plaintiff. (R. 359.)

In January 2003, Plaintiff again met with Dr. Lee-Sigler. Plaintiff had gone to the Millennium Pain Clinic in Bloomington, Illinois, and felt her pain was under better control.

(R. 354.) After Plaintiff explained that the drive to Bloomington was too long, Dr. Lee-Sigler told her that as long as a pain-management plan was in place, she would be willing to maintain the regimen. (R. 354.) In May 2003, Plaintiff told Dr. Lee-Sigler that she was working 50 to 60 hours per week, and was very tired. (R. 348.) Plaintiff stated that it felt like her shoulder was going to fall off due to the pain. (R. 348.) Dr. Lee-Sigler diagnosed Plaintiff with tendinitis with tenosynovitis and possible ulnar entrapment neuropathy. (R. 349.) In July 2003, Plaintiff canceled an occipital block because she did not have the insurance to pay for it. (R. 342.) However, she reported that her arm felt better since she began using a splint. (R. 342.) In September 2003, Plaintiff reported depression, but could not change ...


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