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Surratt v. Astrue

December 21, 2009

LASHERIL SURRATT, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER

Plaintiff LaSheril Surratt seeks judicial review of a final decision denying her application for Supplemental Security Income ("SSI") benefits. Ms. Surratt has filed a Motion for Summary Judgment and seeks a judgment reversing or remanding the Commissioner's final decision. For the reasons set forth below, Ms. Surratt's motion is granted and this case is remanded for further proceedings [dkt 22].

PROCEDURAL HISTORY

On March 21, 2006, Ms. Surratt filed an application for SSI benefits for a period of disability beginning January 27, 1998.*fn1 She alleged that "asthma, extra rib on shoulder and locked bowels" limited her ability to work, and that she could not "breath [sic] good."*fn2 Subsequent to her initial application, Ms. Surratt filled out several additional disability reports alleging that her balance was deteriorating and that her left side was weaker than her right and kept "going out."*fn3 She also alleged an enlarged heart.*fn4

Ms. Surratt's claim was denied initially on July 26, 2006, and upon reconsideration the following day.*fn5 On September 26, 2007, she filed a timely written request for a hearing before an Administrative Law Judge ("ALJ").*fn6 A hearing was held on May 12, 2008, and ALJ Regina Kossek issued her final decision on June 27, 2008.*fn7 Ms. Surratt timely filed a Request for Review of Hearing Decision on August 19, 2008, and the Appeals Council denied review on September 17, 2008.*fn8

A. Background and Medical Evidence

The facts set forth in this subsection are derived from the medical record reviewed by the ALJ. They provide a brief history of Ms. Surratt's background and the events which led to her application for SSI.

Ms. Surratt was born on July 28, 1969, making her 38 years of age at the time of the ALJ's decision.*fn9 She completed high school and received a degree from a four-year college.*fn10 She currently lives with her mentally handicapped brother, who is receiving SSI benefits.*fn11 Her brother assists her with housework, meal preparation and grooming. Ms. Surratt has been attempting to find a care facility which will take her brother, but to date has been unable to do so.*fn12

1. January 1998-October 2005

There are no medical records in Ms. Surratt's application for SSI for the period between January 1998 and October 2005. This period is nonetheless important because Ms. Surratt claims that her disability began in January of 1998. Despite the paucity of records specific to this time period, information about these years can be extrapolated from subsequent records. For example, reference is made to ongoing treatment for pre-existing conditions. According to her application and medication lists, Ms. Surratt has had bronchial asthma for decades.*fn13 She also has prescriptions for medication to treat iron-deficiency anemia, osteopenia (low bone mineral density), allergic rhinitis and chronic constipation.*fn14 She also has a goiter.*fn15 Her disability claim is not specifically related to these conditions, but their aggregation exacerbates her difficulty with life activities and must be considered in formulating an opinion as to her disability.

During this time, it is possible that Darryl Woods, M.D., was Ms. Surratt's primary treating physician. Ms. Surratt reports having seen Dr. Woods since age 18, which would mean that she first saw him in 1987.*fn16 Dr. Woods himself, however, reports a different initial treatment date: either May 4, 1998, (as stated in the Medical Evaluation he prepared for the Illinois Department of Human Services)*fn17 or April, 2006 (as stated in the Physical Residual Functional Capacity Questionnaire he prepared on January 30, 2008).*fn18 No explanation has been given for this discrepancy by either Dr. Woods or Ms. Surratt.

Ms. Surratt's sole work history also comes from this time period. Although she claims in an undated disability report that she first became unable to work on January 27, 1998, later in the same report she indicates that she worked as a school teacher from November 1998 through August 13, 1999, and that her condition did not cause her to work fewer hours or change her job duties.*fn19

This is the only job she reports having held, and certain details about her work are unclear. For example, Ms. Surratt has reported various and inconsistent reasons for leaving employment. She has alleged that she required consistent "breathing treatment" on the job, but also that the school ran out of funding and could no longer pay her.*fn20 She has also stated that one reason she is currently unemployed is that she has been unable to find other employment which would allow her brother to accompany her.*fn21

2. The 2005 Illness

In October of 2005, Ms. Surratt began experiencing tingling, pain and numbness in her left side.*fn22 In December of 2005, she had an episode wherein her left side became paralyzed temporarily.*fn23 She has not indicated whether this "paralysis" was momentary or prolonged. Since that time, she claims to have had episodic left-sided weakness and balance problems of increasing severity.*fn24

Because Ms. Surratt filed her first application for SSI benefits in early 2006, from that time she was following three concurrent tracks of medical care.*fn25 The first track was with Dr. Woods, who continued to evaluate and attempt to diagnose her condition, including sending her for physical and neurological tests.*fn26 The second track was with physical and occupational therapists, apparently at John H. Stroger, Jr. Hospital (the therapy notes say only Stroger, Clinic/Outpatient) (hereinafter "Stroger"), who attempted to therapeutically restore Ms. Surratt's ability to function.*fn27 The third and final track of medical care was with physicians and psychologists working with the State of Illinois to make a disability determination.

a. Dr. Woods' Evaluations and Physical Therapy Treatment

From early 2005 through the present, Ms. Surratt received medical care both from Dr. Woods and from therapists at Stroger. Ms. Surratt reports that although she began experiencing the new symptoms, including paralysis, in late 2005, she did not see Dr. Woods until January of 2006, because she had already made an appointment to see Dr. Woods in January and because the doctor was on vacation in December.*fn28 The first time Dr. Woods reported seeing Ms. Surratt, however, is in April of 2006.*fn29

On April 27, 2006, Dr. Woods ordered blood tests, which were completed at ACHN/Westside Health Center ("ACHN") with inconclusive results.*fn30 During testing, Ms. Surratt complained of loss of balance, reduced strength on her left side, headaches, and swollen ankles; she weighed 229.9 pounds.*fn31

On June 5, 2006, Ms. Surratt had a follow-up appointment from her bloodwork at ACHN. Clinic notes show that Ms. Surratt was still complaining of dizziness and headaches, and used a walker to correct her unsteady gait.*fn32 A Romberg test was administered, with positive results.*fn33 Romberg tests are administered by asking the patient to stand independently, with feet slightly separated and stable, and then close his or her eyes.*fn34 In some cases, the patient's head may be tilted back.*fn35 A "positive result" in a Romberg test means that the patient was unable to maintain a stable balance with closed eyes; that is, the patient swayed or fell when visual input was removed.*fn36

Positive Romberg results are objective neurological findings that indicate instability.*fn37

Throughout June of 2006, Dr. Woods continued to send Ms. Surratt for tests. On June 21, a pulmonary function study, disclosed a "mild restrictive defect" and shortness of breath.*fn38 Medical records from this date also show edema, or swelling, in Ms. Surratt's legs.*fn39 A CT scan completed at Stroger on June 28 was inconclusive, with the final analysis being to "recommend [an] MRI in this patient with multiple documented neuro defects."*fn40

On August 11, 2006, Ms. Surratt began physical and occupational therapy at Stroger with the goal of being able to comb her own hair and resume hobbies.*fn41 Ms. Surratt's condition had deteriorated to the point where a shoulder evaluation at Stroger showed a reduced grip strength of 50% on the left.*fn42 She reported headaches, chest pain, and sharp pains.*fn43 Her intake notes suggest that the interviewer (whose name on the intake notes is illegible) believed that the symptoms may be partially mental, due to "new home/care situation."*fn44

Throughout September of 2006, Dr. Woods recommended more testing for Ms. Surratt. On September 6, an MRI was performed on her brain, but not her spinal cord.*fn45 The results were "unremarkable."*fn46 On September 8, 2006, Ms. Surratt attended physical therapy at Stroger complaining of pain in her left shoulder.*fn47 This was the last time Ms. Surratt came to physical therapy in 2006, and the 2006 therapy appears to have been confined to addressing her shoulder problems. At this time, Ms. Surratt was issued a hemi-cane, also called a hemi-walker, which is a specialized four-point walker designed for use with one hand.*fn48 (Ms. Surratt had previously been using an ordinary walker to assist her with balance, but it was inappropriate for two reasons: first, it had been her grandmother's and not properly fitted to her, and second, it required lifting with both hands.*fn49 As a mobility device, the hemi-cane falls between the four-point "quad cane" and the classic walker for stability assistance.*fn50 Its broader base provides greater stability than a quad cane, but its lighter frame makes it less difficult to transport and use than an ordinary walker.*fn51 Finally, on September 15, 2006, Ms. Surratt underwent an echocardiogram, which also did not disclose abnormalities.*fn52 Although her condition was still deteriorating, a definitive diagnosis continued to elude Dr. Woods.

By the end of 2006, neither the therapy nor the testing Ms. Surratt had undergone since October 2005 had provided a reason for or a method of treating her symptoms. Medical records from late 2006 through early 2007 show that Ms. Surratt's weight increased to 243 pounds, and that she continued to have left-side weakness and balance issues.*fn53 Attempts were made to adjust her medication, with no conclusive results, and Dr. Woods prescribed another course of therapy and testing during the following year.

In January of 2007, Ms. Surratt returned to physical therapy to try to deal with her balance issues. On intake, she complained of pain and stated that she was now falling 3-4 times daily.*fn54 She had an unsteady gait and complained of decreased sensation in her left side.*fn55 A Berg balance test was administered, and Ms. Surratt scored 45 out of 56 possible points.*fn56 The Berg balance score is determined by observing a patient performing a series of tasks including standing, turning, stooping, and climbing.*fn57 It is used to assess fall risk; a score of 45 is the minimum for independent ambulation, and patients scoring 20 or below are considered an extremely high fall risk.*fn58

Ms. Surratt continued to visit both ACHN and physical therapy throughout early 2007, but despite her continued complaints, objective medical evidence and a definitive diagnosis continued to elude her care providers. ACHN notes from February 6, 2007, show "no evidence of neurologic disease, suspect functional etiology."*fn59 Physical and occupational therapy notes throughout February and March of 2007 show repeated complaints of pain and weakness, but inconsistent presentation during actual testing.*fn60

Ms. Surratt's condition continued to deteriorate, although it still fluctuated. In one therapy session, Ms. Surratt marched on a trampoline, but she also suffered a near-collapse in the gymnasium during the same session.*fn61 By April 20, the physical therapist had begun to suspect that Ms. Surratt's symptoms might be psychological in origin.*fn62 On May 2, 2007, she had no pain at her occupational therapy class, but by May 9, she was in enough pain to cry during a grooming exercise.*fn63 On May 23, while attending a cerebrovascular accident awareness class at Stroger, she complained of pain.*fn64 By July, Ms. Surratt still required her hemi-cane to prevent falls, and her Berg balance score had gone from 45 to 21.*fn65 A score of 21 indicated that Ms. Surratt was now at considerable risk of falling. Because of Ms. Surratt's failure to improve, physical and occupational therapy were terminated in July, although Dr. Woods continued to prescribe tests.*fn66

On July 9, 2007, Ms. Surratt returned to Stroger for more blood tests.*fn67 She complained of episodic weakness, falls, and difficulties climbing the stairs to her second-floor apartment.*fn68 She told hospital personnel she was still in pain.*fn69 The additional blood testing still did not disclose the source of her ailments.

There are no medical records for the months of August or September 2007, but in October Ms. Surratt returned to ACHN for a checkup and to refill her extensive list of medications.*fn70 Dr. Woods prescribed a number of medications, including pain medication and a multipurpose medication for depression.*fn71 She also complained of chest pain and dizziness.*fn72 ACHN notes indicate that Ms. Surratt was using a "walker."*fn73

In December of 2007, tests finally began to disclose possible reasons for Ms. Surratt's symptoms. A December 17, 2007, CT scan of her spine, while otherwise "unremarkable," showed "[v]ery mild multilevel degenerative disc disease with small diffuse posterior disc bulges at multiple levels."*fn74 The report notes that CT scanning is not the best way to evaluate soft tissue such as the spinal canal; if soft tissue analysis is needed, an MRI is the next step.*fn75

An MRI was performed on February 8, 2008, and disclosed mild myelomalacia and disc bulges.*fn76 Myelomalacia is a softening of the spinal cord which can result in numbness, sensory loss, and partial to complete paralysis.*fn77 Ms. Surratt was scheduled for surgery (a discectomy) on April 4, 2008.*fn78 At her preoperative consultation with Maninder Kohli, M.D., she was documented at a stable weight, with clear lungs, although the doctor noted her asthma, a goiter, and limited effort tolerance.*fn79 Ms. Surratt never had the surgery; she was apparently concerned about finding care for her brother should she be hospitalized or fully immobilized.*fn80

b. Disability Evaluations

During the same period of time during which Dr. Woods evaluated her, Ms. Surratt was also evaluated several times as part of her application for disability. At each evaluation she made similar complaints and described her symptoms consistently. She did not, however, bring medical records with her to the evaluation appointments, and the evaluating doctors were forced to mostly rely on her self-reports.

On May 22, 2006, Ms. Surratt was first evaluated as part of her disability application. Fauzia A. Rana, M.D., at Lakeshore Medical Clinic, first discussed Ms. Surratt's ongoing problems, and then performed her own objective testing. Ms. Surratt complained of asthma, but told Dr. Rana that she had not been hospitalized or received emergency breathing treatment "because she cannot afford it."*fn81 Ms. Surratt also told Dr. Rana that she could "hardly walk half a block because she feels off-balance and she uses a walker all the time."*fn82 Ms. Surratt reported that she had recently been told she had an enlarged heart, that she was taking high blood pressure medication, and that she had a history of locked bowels although laxatives "fixed the problem."*fn83 She further complained of pain in her knees, legs, and left shoulder, stating that she had "an extra bone in her shoulder which cuts off the circulation."*fn84 She told Dr. Rana that she had lost consciousness "because of this reason" in 1993, and had been on physical therapy for a while.*fn85 Dr. Rana recorded the pain as arthralgia, which is non-specific severe joint pain (in contrast to arthritis, which is joint pain with inflammation).*fn86

When Dr. Rana examined Ms. Surratt, she noted that Ms. Surratt was "alert and oriented in time, place and person."*fn87 Dr. Rana did not observe any edema (swelling) in Ms. Surratt's extremities, and noted that her lungs were clear and her heart had a regular rhythm.*fn88 "She could get up from the chair, step up on the stool, and sit on the examining table by herself."*fn89 She could also button, turn knobs, and manipulate objects with both hands, and Dr. Rana rated her upper extremity muscle strength at 5/5.*fn90 Ms. Surratt refused to lie on the table or to stand without her walker during the exam.*fn91 She claimed that lying down "cuts the air in her chest" and that she "tends to become off balance and tends to fall down" without the walker.*fn92 Despite this, however, Dr. Rana's records show that Ms. Surratt "was observed after the exam, in the waiting room, folding up the walker and carrying out of the office." [sic]*fn93

Dr. Rana also perfomed a mental status evaluation, and opined that Ms. Surratt was anxious and possibly depressed.*fn94 Although her "ability to concentrate [was] fair" Dr. Rana questioned whether Ms. Surratt should handle her own funds.*fn95

On June 19, 2006, Ms. Surratt was psychologically evaluated by Ana M. Gil, M.D., S.C., pursuant to her disability claim.*fn96 Dr. Gil found her to be a reliable informant with logical thought processes, and interviewed her about her illness and symptoms.*fn97 Ms. Surratt told Dr. Gil that she had never been treated for depression, although her mother had died recently and she had lost twelve relatives.*fn98 She discussed her living situation extensively, including the frustrations of caring for her brother, having insomnia and being physically unable to exercise or handle household chores.*fn99

Ms. Surratt told Dr. Gil that her godmother and godsisters were her only social support, stating "[w]hen I was very sick with my congestive heart failure, they were the ones that helped me. They seemed to make things better for me. They came over and they checked on us and they helped me with my daily activities."*fn100 On further questioning, Ms. Surratt told Dr. Gil that her brother now helped her with grooming, cooking, and laundry when she was unable to do these things herself.*fn101

Based on this interview, Dr. Gil diagnosed dysthymic disorder and a moderately severe single episode of major depression.*fn102 Dysthymic disorder is characterized by mild to moderate chronic depression and despondency.*fn103 Unlike Dr. Rana, Dr. Gil found Ms. Surratt competent to handle funds.*fn104

On July 18, 2006, Carl Hermsmeyer, Ph.D, a medical consultant for the State, performed a mental RFC assessment on Ms. Surratt.*fn105 Dr. Hermsmeyer found Ms. Surratt to be moderately limited in carrying out instructions, and noted that she had dysthymic disorder and depression at a "more than non-severe" level, although her symptoms "do not meet or equal a medical listing."*fn106

Dr. Hermsmeyer found Ms. Surratt capable of carrying out "simple one- and two-step tasks at ...


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