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Yttrie v. Astrue

July 26, 2010


The opinion of the court was delivered by: Magistrate Judge P. Michael Mahoney


I. Introduction

Paul Yttrie, Jr. seeks judicial review of the Social Security Administration Commissioner's decision to deny his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. See 42 U.S.C. § 405(g). This matter is before the magistrate judge pursuant to the consent of both parties, filed on July 25, 2008. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

Claimant first filed for disability insurance benefits on August 19, 2003 alleging a disability onset date of February 26, 2003. (Tr. 144--45.) His claim was denied initially and upon reconsideration. (Tr. 48--50, 58--60.) A hearing before an ALJ was held on March 1, 2005, at which Claimant was represented by an attorney. (Tr. 597.) Claimant and a vocational expert, Mr. Radke, testified. (Tr. 599, 641.) On March 29, 2005, the ALJ issued a written opinion partially in favor of Claimant (the "2005 opinion"). (Tr. 30--42.) The ALJ found that Claimant was disabled from February 26, 2003 through February 29, 2004, but was not disabled thereafter. (Tr. 30.)

Claimant requested that the appeals council review the ALJ's decision. (Tr. 87.) The appeals council affirmed that portion of the ALJ's decision finding Claimant disabled from February 26, 2003 through February 29, 2004. (Tr. 87.) The appeals council remanded the case for further consideration regarding the period of time beginning with March 1, 2004. (Tr. 87.)

A hearing was held on May 31, 2006 before the ALJ, at which Claimant and his attorney were present. (Tr. 588.) At that hearing, Claimant's counsel requested that Claimant undergo a psychiatric consultative exam. (Tr. 593.) The ALJ ordered the exam and reset the hearing date. (Tr. 593.)

A third hearing was held on July 26, 2006, at which Claimant was represented by his attorney. (Tr. 657.) Claimant and Mr. Radke testified. (Tr. 657, 688.) On July 28, 2006, the ALJ issued another written opinion finding that Claimant was disabled from February 26, 2003 through February 29, 2004, but not thereafter (the "2006 opinion"). (Tr. 24.) The ALJ also found that the Claimant's "entitlement to a period of disability and disability insurance benefits ended effective May 31, 2004, the end of the second calendar month after the month in which the disability ceased." (Tr. 24.) The appeals council denied Claimant's request for review on March 27, 2008, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 5--7.)

III. Background

Claimant was born on May 28, 1964, making him 42 years old at the time of the third hearing. (Tr. 144, 660.) He graduated high school, and is able to read and write the English language. (Tr. 660.) He testified that he can do basic math, but is a bit "shaky." (Tr. 660--61.)

He began having trouble with math shortly after starting pain medication. (Tr. 661.) Claimant ambulates with a cane and a removable, molded plastic leg brace on his left leg that fits underneath the bottom of his foot and goes up to the knee. (Tr. 623, 637, 639.) In the past, he also used crutches and a walker. (Tr. 624.)

At the first hearing, Claimant testified that he watches television and spends time on the computer during his typical day. (Tr. 612.) He also testified that he is unable to do any household chores due to pain, except that he occasionally assists with washing the dishes. (Tr. 613.) He stated that he might do some small repairs around the house. (Tr. 613.) For example, he might install a new connector on a bad cable wire. (Tr. 613--14.) He also stated that he cannot assist with grocery shopping because he is unable walk the entire time. (Tr. 614.) Claimant testified that he would go to the race car track as a spectator three or four times per year. (Tr. 614.) Claimant also testified that he would go fishing about twice per week. (Tr. 615.) Claimant stated that he has a driver's license and leaves the house every day to pick up or drop off his daughter at school, and to maybe run to the gas station. (Tr. 616.) He testified that he rarely goes out at night. (Tr. 616.)

Claimant also testified at the first hearing that he suffers from depression. (Tr. 624.) He stated that he fights with his daughter a lot, and that he is unsure about his relationship with his wife. (Tr. 625--27.) He attributed these things to his depression. (Tr. 624--27.)

At the third hearing, Claimant testified that his daily activities had changed since the first hearing. He stated that the time he spends doing chores around the house is "almost nonexistent." (Tr. 670.) He stated that he has not been to the race car track in almost two years. (Tr. 671.) He also stated that he rarely fishes, and that the last time he went fishing was about three weeks prior to the hearing. (Tr. 667.) He testified that he spends six to eight hours of his normal day between 9:00 AM and 5:00 PM sleeping. (Tr. 670.) He stated that, since the third surgery, he spends 60 to 70 percent of his day laying down. (Tr. 674.) Claimant explained that if he does feel motivated, he watches a little television or cuts the grass using the riding lawn mower. (Tr. 673.) He also stated that he might work on small lawn mower engines in his garage. (Tr. 673.)

Claimant testified that he earns a little extra money driving his friend to work. (Tr. 663.) The trip takes between one and two hours round trip. (Tr. 664.) Claimant's friend pays Claimant about $7 per day. (Tr. 663.) On rare occasions, Claimant also gives his friend a ride home after his friend's shift ends. (Tr. 684.)

Claimant also testified at the third hearing that he continues to suffer from depression. (Tr. 680.) He testified that he still fights often with his daughter and has withdrawn from people. (Tr. 680.) He stated that he disagrees with his wife regarding how to raise their daughter, and that he is unsure about his relationship with his wife. (Tr. 627, 681.) He believed that such things are symptoms of his depression. (Tr. 624--27, 680.) He also testified that he began suffering panic attacks about eight or nine months prior to the third hearing, and that he has experienced about nine or ten of them since they started. (Tr. 682.)

Claimant's relevant work history begins in July 1984 as a warehouse laborer for a bar and restaurant supply distributor. (Tr. 170.) He worked that job from 1984 until December 1992. (Tr. 170.) In December 1992, Claimant was promoted to warehouse manager, and held that job until December 1994. (Tr. 170.) There, he prepared all customer orders, did inventory counts, and unloaded trucks. (Tr. 174.) He supervised two people in that position. (Tr. 174.)

From January 1995 to July 1995, Claimant was a warehouse laborer for a wholesale electrical supply distributor. (Tr. 170.) From July 1995 until December 1998, Claimant worked in counter sales for the wholesale electrical supply distributor. (Tr. 170.) In that capacity, Claimant assisted walk-in customers, entered orders, filled customer orders, and assisted in loading material for customers. (Tr. 172.) Claimant would have to frequently lift over 25 pounds in that job, and sometimes would lift 100 pounds or more. (Tr. 172.) He also supervised one person in that position. (Tr. 172.) From December 1998 to the summer of 2003, Claimant did inside sales for the electrical supply distributor. (Tr. 170, 603.) In that capacity, he entered orders, negotiated prices, did returned goods authorizations, and managed inventory. (Tr. 171.) He also was responsible for customer contract maintenance and profiling. (Tr. 171.)

Claimant began experiencing medical problems in February 2003. (Tr. 601.) He had surgeries in April and July 2003. (Tr. 602.) According to Claimant's testimony at the third hearing, the last time he worked was at some point between the second and third surgeries. (Tr. 603.)

IV. Medical Evidence

Claimant's relevant medical history begins in late February 2003. Dr. Wright, a neurological surgeon, described in a letter dated February 28, 2003 to Dr. Schiller, Claimant's family physician, that Claimant had substantial disc protrusion in the L5-S1 level and that Claimant was in severe pain. (Tr. 231.) At that time, Claimant was taking Vioxx,*fn1 Vicodin,*fn2 and Flexeril.*fn3 (Tr. 230.) Dr. Wright did not believe that surgery was the only option, and suggested that Dr. Jaworowicz, a pain management specialist, evaluate Claimant for an epidural steroid injection. (Tr. 231.) Dr. Jaworowicz saw Claimant that afternoon and performed the injection. (Tr. 255.)

On March 4, 2003, Claimant returned to Dr. Jaworowicz for a follow-up. (Tr. 254.) Dr. Jaworowicz noted that Claimant reported still being largely confined to bed, was limping, and used a cane. (Tr. 254.) Claimant was given Neurontin*fn4 and Norco,*fn5 and underwent a selective nerve root block. (Tr. 254.)

On March 12, 2003, Dr. Soriano, a surgeon at Swedish American Hospital, wrote that Claimant had been referred to him because Dr. Wright's service was not covered by Claimant's health insurance. (Tr. 229.) Dr. Soriano noted that an MRI showed a large disc herniation at L5- S1, and that Claimant had severe left-side sciatica.*fn6 (Tr. 229.) Dr. Soriano indicated that they would proceed with a microdiskectomy. (Tr. 229, 282.) Dr. Soriano performed the surgery on March 13, 2003. (Tr. 279--80.)

Claimant returned to the SwedishAmerican Hospital on April 10, 2003 with severe nausea, headache, and tenderness to palpation at his incision wound on his back. (Tr. 274.) Claimant was referred to Dr. Daryanani for an infectious disease consultation. (Tr. 274.) Dr. Daryanani believed Claimant to have gotten a staph infection and took a culture of the draining fluid. (Tr. 275.) He started Claimant on the antibiotics vancomycin and oxacillin. (Tr. 275.)

Claimant was also referred to Dr. Bernsten for an MRI on April 10, 2003. The MRI showed fluid within the L5-S1 interspace without enhancement. (Tr. 246.) There was some subtle enhancement of the endplate of the inferior aspect of the L5 vertebral body, but Dr. Bernsten believed it to be a normal post-operative finding or secondary to degenerative change. (Tr. 246.) There also appeared to be some enhancement in the left anterior epidural space postoperative, which Dr. Bernsten thought consistent with post-operation changes. (Tr. 246.)

On April 14, 2003, Dr. Soriano performed an operation on Claimant to drain the wound. (Tr. 271.) The incision was opened and all the infected areas were irrigated, cleaned, and the disk space biopsied. (Tr. 271.) Claimant was discharged on April 15, 2003 with Darvocet*fn7 and home antibiotics. (Tr. 269.)

On May 1, 2003, Claimant saw Dr. Root at OSF Saint Anthony Medical Center for an infectious disease consultation. (Tr. 308.) Claimant reported feeling considerable pain in his left hip which was similar to the pain he felt prior to his last surgery. (Tr. 308.) He was continued on antibiotics. (Tr. 309.)

Claimant returned on May 13, 2003 to Dr. Root. (Tr. 307.) He had started taking Neurontin and his pain had gotten better, but his sedimentation rate*fn8 had remained the same. (Tr. 307.) An MRI was conducted on May 17. (Tr. 376.) The MRI was consistent with diskitis and osteomyelitis involving the inferior endplate of L5 and the superior endplate of S1. (Tr. 376.) It also indicated diskitis within the L5-S1 space and epidural phlegmon with what appeared to be a paravertebral abscess on the left. (Tr. 376.)

At a June 4 follow-up with Dr. Root, Claimant continued to complain of pain. (Tr. 305.) Dr. Root noted that the most recent MRI seemed to indicate that the infection may not have been totally eradicated. (Tr. 305.) At a June 17 follow-up with Dr. Root, Dr. Root noted that Claimant's sedimentation rate had improved, but that his pain had continued. (Tr. 304.)

Claimant visited Dr. Soriano on June 20, 2003. (Tr. 216.) He reported having hip pain and a headache, and Dr. Soriano observed that his sedimentation rate had gone from 27 to 42. (Tr. 216.) Dr. Soriano suggested that Claimant have an MRI. (Tr. 216.) The MRI showed "what appear[ed] to be an anterior collection of purulence." (Tr. 219.) Dr. Soriano ordered an infectious disease consultation. (Tr. 268.)

Dr. Homann of the SwedishAmerican Hospital performed the infectious disease consultation on June 25, 2003. (Tr. 263.) A CT scan suggested an acute inflammatory and probably infectious process. (Tr. 265.) Dr. Homann believed that there was a new infection, and suggested that cultures be taken. (Tr. 265.)

On June 27, 2003, Dr. Soriano performed an operation at the L5-S1 to remove the abscess. (Tr. 261.) During the procedure, Dr. Soriano found a pus pocket. (Tr. 262.) As the pus pocket was opened, Claimant's left leg jumped slightly. (Tr. 262.) Endplates were found to be partially eroded in the inferior portion of L5. (Tr. 262.) "[C]opious amounts of antibiotic irrigation were placed in the wound[,]" and the wound was closed after placement of a Blake drain. (Tr. 262.) Claimant was discharged on June 30, 2003 on Neurontin and Vicodin. (Tr. 260.)

Claimant visited Dr. Soriano on July 10, 2003. (Tr. 293.) He reported complete relief from pain in the back and hips, and that the pain was under control in his leg with the use of Neurontin. (Tr. 293.) He was still experiencing a light burning sensation in the lateral calf. (Tr. 293.) He also had developed "an unusual onset of inability to dorsi- or plantar flex his foot[,]" and the foot felt "very unstable." (Tr. 293.) Dr. Soriano put Claimant in a foot brace and suggested that an MRI be taken. (Tr. 293.)

An MRI was conducted on July 12, 2003, which showed a near complete loss of disk height with a tiny amount of increased T2 signal within the disk at the mid L5-S1 level. (Tr. 237.) The exam also showed "slight interval progression in the extensive enhancing soft tissue seen within the surgical site . . . with involvement of the epidural space extending from the L5 down to the mid sacral level, with prominent extension into through the S1 foramen." (Tr. 237.)

There was "extensive enhancement both laterally and anteriorly of the perivertebral soft tissues at the L5, S1 and S2 levels suspicious for a combination of scarring and phlegmonous debris." (Tr. 237.) There was "a focal 1.5 cm nonenhancing cystic area in the left hemilaminectomy site at L5-S1, which was noted on prior study. This could represent a seroma or possible underlying abscess." (Tr. 237--38.)

On July 24, 2003, Claimant returned to Dr. Root for a follow-up. (Tr. 347.) Claimant's sedimentation rate had fallen, but he still had significant back and leg discomfort. (Tr. 347.) Claimant saw Dr. Root for an infectious disease follow-up on August 6, 2003. (Tr. 296.) All signs of infection clinically and by laboratory measures had cleared. (Tr. 296.) However, Claimant was experiencing severe pain in his left foot. (Tr. 296.) Dr. Root believed it to be reflex sympathetic dystrophy. (Tr. 296.)

On August 8, 2003, Claimant returned to Dr. Jaworowicz. (Tr. 252.) Dr. Jaworowicz noted that Claimant had an extremely flat affect, and his examination indicated mild muscle wasting and atrophy in Claimant's quadriceps and the calf of his left leg. (Tr. 252.) Claimant was quite sensitive to light touch over the medial aspect of his left foot. (Tr. 252.) Dr. Jaworowicz noted that Claimant walked with a cane. (Tr. 252.) He gave Claimant a left lumbar sympathetic block by injecting Claimant with bupivacaine,*fn9 and prescribed him Neurontin, Norco, and amitriptyline.*fn10 (Tr. 253.)

Claimant returned to Dr. Jaworowicz on August 15, 2003. (Tr. 250.) Claimant reported that the bupivacaine injection did not change his symptoms. (Tr. 250.) Dr. Jaworowicz felt this was consistent with type II complex regional pain syndrome. (Tr. 250.) Dr. Jaworowicz increased Claimant's Neurontin prescription, and indicated that he would switch Claimant to Topamax*fn11 if that did not help. (Tr. 250.) He also started Claimant on a 72-hour Duragesic patch,*fn12 and increased his amitriptyline prescription. (Tr. 250.) Claimant reported impotence, and Dr. Jaworowicz gave him a Viagra prescription.

On September 4, 2003, Claimant saw Dr. Root for a follow-up regarding his infection. (Tr. 294.) He noted that Claimant had stopped taking Vicodin and Norco, but was still on the Duragesic patch. (Tr. 294.) Claimant reported pain levels at a two to four out of ten in his left leg. (Tr. 294.) He was able to wear a sock and occasionally slippers, which he could not do before. (Tr. 294.)

On September 9, 2003, Dr. Soriano filled out a neurological report sent to him by the Illinois Bureau of Disability Determination Services. (Tr. 204.) Dr. Soriano indicated that Claimant had experienced severe sensory loss in his left foot, had no reflexes in his left ankle or knee, and had a paralyzed left foot. (Tr. 204.) He also described severe atrophy in Claimant's left calf. (Tr. 204.) Dr. Soriano also stated that the condition was longstanding or chronic in nature, that Claimant was using a wheelchair to ambulate, and that he could not ambulate more than 50 feet without assistance. (Tr. 204.) ...

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