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Gallo v. Astrue

July 20, 2010

SUSAN GALLO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Michael T. Mason, United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Presently before this Court is plaintiff Susan Gallo's ("Gallo" or "claimant") motion for summary judgment [19] seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for disability insurance benefits under the Social Security Act ("Act"), 42 U.S.C. §§ 416(i) and 423. (R. 62). The Commissioner filed a cross motion for summary judgment [23] seeking this Court to uphold the decision of the Administrative Law Judge ("ALJ"). This Court has jurisdiction to hear this matter pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, Gallo's motion for summary judgment is denied, and the Commissioner's cross-motion for summary judgment is granted.

I. BACKGROUND

A. Procedural History

Gallo filed an application for Disability Insurance Benefits ("DIB") on May 11, 2006 alleging disability beginning on June 30, 2005. (R. 48). Her application was denied initially on June 30, 2006 and again on October 12, 2006 after a timely request for reconsideration. (R. 48-49). Gallo requested a hearing, which was held on April 8, 2008 before ALJ John Pope ( the "ALJ" or "ALJ Pope"). (R. 9-47). ALJ Pope issued a written decision denying Gallo's request for benefits on August 25, 2008. (R. 62). The Appeals Council subsequently denied Gallo's request for review on December 4, 2008, and ALJ Pope's decision became the final decision of the Commissioner. Estok v. Apfel, 152 F.3d 636, 637 (7th Cir.1998). Gallo subsequently filed this action in the district court.

B. Medical Evidence*fn1

1. Dr. Ellen Voronov -- Lower Back Pain

On May 24, 2005, about one month before claimant's alleged onset date, Dr. Ellen Voronov ("Dr. Voronov"), of M & M Orthopaedics, conducted a follow-up examination concerning claimant's recent bilateral medial branch block procedure to treat recurring pain in her lower back. (R. 188). Claimant had been receiving treatment from Dr. Voronov for recurring lower back pain since the beginning of December 2004. (R. 193). Claimant reported relief of her lower back difficulties after the procedure. (Id.). Although she reported intermittent subjective parethesia in her bilateral lower extremities, her sensation was intact in the L2-S1 dermatomes. (Id.). On May 24, 2005, Dr. Vorovnov found that claimant did not demonstrate any tenderness at the injection site or any perilumbar tenderness. (Id.). She had full range of motion of her lumbar spine. (Id.). Dr. Voronov also reaffirmed claimant's diagnoses of "degenerative disease of the lumbar spine." (Id.). In addition to continuing with her current medication, which included taking Celebrex regularly for pain and Ultracet as needed for pain, Dr. Voronov prescribed claimant with Neurontin for pain and encouraged her to exercise, suggesting a trial in water aerobics. (Id.).

Claimant returned to see Dr. Voronov on September 14, 2005 with complaints of intermittent lower back pain, especially at the extremes of physical activity. (R. 186). Again, she had no radicular symptoms. (Id.). She demonstrated no perilumbar tenderness. (Id.). Dr. Voronov found that claimant had some stiffness in her lower back with extension, but otherwise demonstrated a full range of motion of her lumbar spine with some stiffness. (Id.). Additionally, Dr. Voronov noted that claimant had found aquatic aerobics beneficial to relieve her lower back pain. (Id.). Claimant also reported that Neurontin provided relief of paresthesias in her lower extremities. (Id.).

On October 27, 2005, claimant complained to Dr. Voronov of recurring lower back pain in the previous three weeks, with some pain occasionally radiating to her buttocks. (R. 185). However, she reported that she did not feel tingling or numbness in her lower extremities. (Id.). Claimant expressed discomfort with range of motion of the lumbar spine in all directions. (Id.). She had been continuing with daily doses of Celebrex and Neurontin, and doses of Ultracet as needed, while occasionally taking half a tablet of Darvocet for acute pain. (Id.). Claimant reported that these medications had not produced any side effects. (Id.). Because claimant had previously found a medial branch block beneficial, Dr. Voronov scheduled claimant for another. (Id.).

On November 14, 2005, claimant received a second medial branch block to treat the pain in her lower back. (R.241). She returned to Dr. Voronov for a follow-up on November 17, 2005. (R. 184). Claimant reported some residual aching, but no pain in the lower back. (Id.). She again reported that there were no side effects as a result of her regularly taking Celebrex and Ultram and occasionally taking Darvocet. (Id.). When Dr. Voronov conducted a physical examination, claimant did not demonstrate any perilumbar tenderness, and she had a full range of motion of the lumbar spine without any discomfort. (Id.). Dr. Voronov again recommended that claimant participate in aquatic aerobics and continue her home exercise program. (Id.).

Claimant visited Dr. Voronov again on April 4, April 27, May 5, and October 18, 2006. (R. 176-183). On April 4, 2006, claimant reported doing reasonably well until two weeks prior. (R. 180). Before the two weeks prior to the April 4 appointment, she reported on and off aching and occasional mild pain in her lower back. (Id.). She also explained that she did not suffer from any numbness or tingling in her lower extremities at any time. (Id.). Claimant asked about receiving another back injection because that procedure had been beneficial in the past. (R. 182). Dr. Voronov recommended that she first try taking Medrol Dosepak for pain instead of Celebrex and undergo an MRI. (Id.).

On April 27, 2006, claimant returned to Dr. Voronov to discuss the results of the MRI on her lumbar spine and the Medrol Dosepak trial. (R. 178). Dr. Voronov noted that claimant's condition had improved. (Id.). Claimant reported a decrease in the intensity and frequency of her lower back pain. (Id.). She had not been having any pain at night. (Id.). She had no perilumbar tenderness, but expressed some discomfort with flexion of the lumbar spine. (Id.). Her MRI of the lumbar spine demonstrated "Grade I/II anterolisthesis at L4-L5 grossly unchanged." (R. 179). Dr. Voronov noted that claimant had not been taking calcium supplements despite being directed to do so previously by her primary care practitioner. (Id.). Dr. Voronov asked claimant to undergo a bone density scan before her next appointment and also noted that claimant's use of a lower back brace may prove beneficial. (Id.).

Claimant reported that her lower back pain remained largely unchanged when she saw Dr. Voronov on May 25, 2006. (R. 177). She had no radicular symptoms and had no new complaints. (Id.). The bone density scan suggested osteopenic findings in her femurs, which is a precursor to osteoporosis. (Id.). Although the lower back brace seemed to provide claimant some relief, she had stopped using it. (Id.). Claimant again reported that her medication had not produced any side effects. (Id.). Dr. Voronov noted that claimant had persistent lower back pain, but also noted that claimant experienced a few months of relief resulting from a previous medial branch block procedure. (Id.). Dr. Voronov recommended that claimant schedule another medial branch block procedure and continue to take Celebrex regularly for pain, Ultracet as needed for mild pain, and Darvocet as needed for acute pain. (Id.).

Claimant received another medial branch block on July 17, 2006. (R. 224, 233). She followed up with Dr. Voronov on October 18, 2006. (R. 284). Claimant reported that she had been experiencing occasional, centralized lower back pain at a severity of five or six out of ten. (Id.). She had not experienced any radicular symptoms and made no new complaints. (Id.). Claimant demonstrated some stiffness with extension of her lumbar spine, but she had full flexion, lateral bending, and bilateral rotation. (Id.). She had no focal deficit. (Id.). Her motor and neurovascular examination was normal. (Id.). Dr. Voronov noted that claimant was "doing reasonably well" with her current medication and specifically noted that a combination of Ultracet and Darvocet for pain, "seemed to provide [claimant] relief." (Id.). Claimant also reported that she had not been consistently performing her home exercise program. (Id.). Dr. Voronov encouraged her to proceed with the home exercises on a regular basis and recommended another trial of aquatic aerobics for which he provided a referral. (Id.).

A little over a month later, on January 10, 2007, claimant reported that she had completed aquatic aerobics therapy and had been performing home exercises on a regular basis. (R. 281). Claimant reported improvement in her discomfort. (Id.). She experienced some residual aching in the lower back. (Id.). However, she described it as "mild and quite tolerable." (Id.). She reported occasional episodes of lower back pain, but they were "low in frequency." (Id.). According to claimant, she felt improvement in her functional status and was able to tolerate physical activities during the day better. (Id.). She reported no new difficulties. (Id.).

On January 10, 2007, claimant had been taking Celebrex for pain as directed by her primary care physician. (R. 282). She had also been taking one tablet a day, on alternating days, of Ultracet and Darvocet for pain, and one tablet a day of Neurontin for pain. (R. 281). She again reported that this combination of medication did not produce any side effects. (Id.). Claimant also told Dr. Voronov that "the combination of the above medication seem[ed] to provide her good relief of residual difficulties," and that "she [was] pleased with her improvement." (Id.). Dr. Voronov directed her to continue taking Celebrex for pain as directed by her primary care physician and to continue taking Ultracet and Darvocet for pain, but only as needed. (R. 282). Additionally, Dr. Voronov directed claimant to continue taking Neurontin for pain once a day before bed and instructed her to continue with regular home exercises. (Id.).

In 2007, claimant saw Dr. Voronov three more times on April 18, July 18, and October 17. (R. 325, 322, 319). On April 18, 2007, Dr. Voronov noted that claimant was "doing reasonably well with a combination of [her] home exercise program and trial of her pharmaceuticals." (R. 325). Claimant reported having occasional centralized lower back pain, but having "significantly more good days" than bad. (Id.). She had no radicular symptoms. (Id.). Claimant had no perilumbar tenderness. (Id.). She had a full range of motion of the lumbar spine, but experienced some discomfort and stiffness with extension of the lumbar spine. (Id.). She did not have any new complaints. (Id.). In the previous weeks, claimant had been gradually slowing the frequency with which she took Darvocet, the strongest of her pain medications. (Id.). She asked that she be allowed to discontinue taking Darvocet altogether. (Id.). Dr. Voronov directed claimant to continue taking Celebrex, Neurontin, and Ultracet for pain and to continue with her home exercise program. (Id.).

During her July 18, 2007 visit, claimant stated that she was able to tolerate her physical activities during the day and that "she [was] reasonably fine at [that] time." (R. 322). Further, Dr. Voronov noted that claimant was "doing reasonably well." (Id.). Claimant reported that, for the most part, she suffered from residual aching in her lower back, but at times she experienced minimal pain. (Id.). She rated her lower back pain at two out of ten. (Id.). She did not have any radicular symptoms. (Id.). She continued to take Celebrex, Neurontin, and Ultracet for pain. (Id.). She was taking one half tablet of Darvocet for pain, at most, once a week. (Id.).

Claimant returned to Dr. Voronov for a checkup on October 17, 2007. (R. 319). She reported that she had recently been diagnosed with hypertension by her primary care practitioner. (Id.). Again, Dr. Voronov noted that claimant was doing "reasonably well with her home exercise program and the combination of pharmaceuticals." (Id.). Claimant reported minimal aching in her lower back during the day. (Id.). At extremes of physical activities, she rated pain in her lower back at two out of ten. (Id.). She had no pain in her lower extremities. (Id.). She continued to take Celebrex, Neurontin, Ultracet, and occasionally, Darvocet for pain. (Id.).

Finally, claimant saw Dr. Voronov three times in 2008 on February 27, April 30, and May 21. (R. 310, 335). At her February 27 appointment, claimant reported that she had been diagnosed with hemochromatosis, a blood disorder, since she had last seen Dr. Voronov on October 17, 2007. (R. 310). In addition, she had also been diagnosed with arthritis, secondary to hemochromatosis, by Dr. Maria Sosenko ("Dr. Sosenko"), a rheumatologist. (Id.). In regards to her lower back pain, claimant reported that she had been doing reasonably well with occasional aching in her lower back. (Id.). She had been taking Ultracet and Darvocet only as needed. (Id.). However, in the two weeks prior to the February 27, 2008 appointment, claimant reported that her lower back pain had become exacerbated. (Id.). She rated her lower back pain at five out of ten with some radiation into the back side of her thighs. (Id.). Dr. Voronov noted that claimant experienced discomfort and mild pain with extension of the lumbar spine. (Id.). However, there was no discomfort with the extremes of range of motion of her lumbar spine. (Id.). She had mild perilumbar tenderness in her lower back, but was able to walk on her heels and toes without difficulty. (Id.).

Claimant admitted that she had recently been unable to attend aquatic aerobics on a regular basis. (R. 311). However, she stated that she intended to resume regular aquatic aerobics at a local fitness facility. (Id.). She also reported that she had failed to consistently perform her home exercise routine. (Id.). Dr. Voronov encouraged her to resume the performance of both. (Id.). Dr. Voronov directed her to continue taking Neurontin regularly for pain and to take Ultracet and Darvocet for pain as needed. (Id.).

Claimant returned to see Dr. Voronov for a follow up appointment on April 30, 2008. (R. 335). Her complaints, presentation, evaluation, and examination remained unchanged from her February 27, 2008 visit. (Id.). She rated her lower back pain at five out of ten. (Id.). Claimant reported that she had again failed to resume aquatic aerobic therapy or to consistently perform her home exercises. (Id.). She explained that her schedule had become too busy due to the work up for her recently diagnosed hemachromatosis condition. (Id.). Dr. Voronov directed her to continue to take Neorontin for pain regularly and to take Ultracet for pain as needed. (Id.). Additionally, Dr. Voronov recommended a follow up MRI of the lumbar spine. (Id.).

Dr. Voronov saw claimant on May 21, 2008 to discuss the results of her MRI. (R. 336). Claimant reported that her lower back difficulties had improved. (Id.). Dr. Voronov noted that claimant's residual pain was minor. (Id.). Dr. Voronov also noted that claimant had resumed a consistent home exercise program and that the combination of consistent home exercise and current pain medication had made her minor pain "well tolerable." (Id.). Claimant demonstrated a full range of motion of the lumbar spine with minimal stiffness on extension. (Id.).

According to Dr. Voronov's notes, the MRI of claimant's lumbar spine revealed nothing new. (R. 336). She had chronic, mild compression of the superior endplate of L5. (Id.). There was a 1.2 centimeter anterior subluxation, L4 on L5, with associated pseudobulge and facet changes. (Id.). She had moderate to severe narrowing of the spinal canal. (Id.). Dr. Voronov directed claimant to continue to take Neurontin regularly and suggested a trial of Ultram for pain instead of Ultracet and Darvocet. (Id.). ...


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