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Gfesser v. Astrue

August 25, 2010


The opinion of the court was delivered by: Judge Nan R. Nolan


Plaintiff Michael Gfesser claims that he is disabled due to arthritis and ankylosing spondylitis. He filed this action seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416, 423(d), 1381a. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and have filed cross-motions for summary judgment. For the reasons stated below, this case is remanded for further proceedings consistent with this opinion.


Plaintiff applied for DIB and SSI on October 25, 2005, alleging that he became disabled on September 29, 2004 due to arthritis, rheumatoid arthritis and ankylosing spondylitis.*fn1 (R. 170-72.) The applications were denied initially on December 14, 2006, and again on reconsideration on June 21, 2007. (R. 79-88, 94-101.) Plaintiff appealed the decision and requested an administrative hearing. The hearing occurred on January 7, 2009, at which time Plaintiff amended his disability onset date to December 31, 2005. Shortly thereafter, on January 30, 2009, the Administrative Law Judge ("ALJ") found that Plaintiff is not disabled because he is capable of performing a range of unskilled, sedentary work on a sustained basis. (R. 16-24.) The Appeals Council denied Plaintiff's request for review on June 26, 2009, and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. (R. 1-4.)


Plaintiff was born on April 17, 1980, making him 28 years old and a "younger individual" at the time of the ALJ's decision. (R. 167.) He has a high school diploma and completed two years of college. (R. 49, 249.) Plaintiff has worked a variety of part-time jobs over the years, including as a consultant, a computer technician, a waiter and a sales representative. (R. 46-47, 83, 88, 182-93, 245.)

A. Medical History

1. 2004 through 2006

The first medical record available is from April 9, 2004, when Plaintiff had an MRI of his thoracic spine due to complaints of back pain. The MRI showed mild multilevel compression from T3 through T8, with "more marked" findings at T4, T5 and T6. (R. 316.) There was also prominent signal abnormality at T7, likely caused by an acute Schmorl's node*fn2 with associated marrow edema. (R. 317.) The MRI revealed no cord compression or deformity, but Plaintiff had experienced a 30% loss of height. (R. 316-17.) An MRI of Plaintiff's lumbar spine dated April 13, 2004 showed mild to moderate disc dehydration at L3-4 and L4-5, with slight loss of disc space height at both levels. The MRI confirmed a Schmorl's node-type disc protrusion involving L4 and L5, and revealed "adjacent marrow signal abnormality and enhancement suggesting that these are acute or subacute in nature." (R. 318-19.) In addition, there was a "central disc extrusion with slight caudal migration of disc material" below the L4-5 level, as well as "facet arthropathy and ligamentum flavum hypertrophy" at L5. The radiologist opined that this combination of findings "produces mild to moderate central spinal stenosis." (R. 319.)

After reviewing these MRI results, Dr. James Sperling, M.D., of Orthopedic Specialists, PLLC, concluded on April 15, 2004 that Plaintiff had sacroiliac ("SI") joint sclerosis. He diagnosed a positive HLAB 27*fn3 and elevated inflammatory markers, and expressed concern about more soft tissue problems. Dr. Sperling also documented his concern about Plaintiff's need for significant narcotics, noting that he took a lot of Vicodin without any response. The doctor referred Plaintiff to a rheumatologist for further assessment, but there is no evidence in the record as to whether Plaintiff pursued that recommendation. (R. 314.)

To the contrary, it appears that Plaintiff next sought treatment in April 2005 at the Dachman Center for Pain Therapy. (R. 331.) On April 14, 2005, Veena Nayak, M.D., S.C., diagnosed Plaintiff with "[a]nkylosing spondylitis with facet syndrome of the lumbar spine and tendonitis in supraspinatus tendon, and sacroilitis." She administered joint and tendon sheath injections to help with the pain. (R. 387.) Plaintiff saw Dr. Nayak again on April 21, 2005 for a follow-up visit. His blood work revealed a positive HLAB 27, and his bone density evaluation was significantly low. Dr. Nayak advised Plaintiff to begin physical therapy and myofascial release "as soon as possible."

(R. 386.) She also noted "severe decreased range of motion in the cervical and thoracic spine with kyphosis [curving of the spine] and positive Faber [indicating pressure on the spinal cord], and some associated lumbar dysesthesia [sense distortion] with tendonitis." (R. 385.)

The next progress notes date from September 7, 2005, when Carey B. Dachman, M.D., S.C., reported that Plaintiff was feeling "a lot better." Plaintiff was taking Enbrel, methotrexate, Valtrex and Fosamax at that time, and Dr. Dachman added a prescription for Forteo to help with Plaintiff's osteoporosis. (R. 329.) Dr. Dachman ordered an MRI and ultrasound of Plaintiff's extremities "in view of inflammatory arthropathy and desire to determine degree of bone marrow edema, erosion, and enthesopathy at hand." He also advised that Plaintiff have a biofeedback study for his sleep disturbance, and that he start physical therapy. (R. 330.)

On October 6, 2005, Plaintiff saw Nurse Practitioner Patricia Morgan, MSN, APRN, BC, at the Dachman Center. Nurse Morgan noted Plaintiff's history of ankylosing spondylitis, and confirmed that he was taking Enbrel. Plaintiff told Nurse Morgan that he decided on his own to stop taking methotrexate due to a concern regarding his liver enzymes, and he found Lunesta unhelpful for his sleep problems and stopped taking that as well. He did, however, take Ultracet on occasion for pain. (R. 326.) Plaintiff reported working out four times a week, but Nurse Morgan noted that his April 2005 DEXA scan revealed "very significant osteoporosis especially in [the] spine." Plaintiff stated that he had taken Fosamax to help with his bone density (he had lost over 3 inches in height), but stopped when he ran out. (Id.) Nurse Morgan switched Plaintiff from Ultracet to Norco for pain, and diagnosed "ankylosing spondylosis, stable" and osteoporosis. (R. 327.)

Plaintiff saw Dr. Dachman again on November 3, 2005. He noted loss of lateral rotation by 20% and weakness proximally; prescribed double Enbrel for four weeks; and referred Plaintiff for physical therapy and myofascial release. (R. 325.) The next day, Plaintiff had an ultrasound of his right hand and wrist. The hand showed tendonosis and degenerative first and fifth MCP joint with pannus formation. The wrist showed median nerve entrapment, tenosynovitis, degenerative radiolunate, lunate capitate and ulnocarpal joint. Michele Fleischmann, M.A., confirmed the therapy referral and instructed Plaintiff to continue with Dr. Dachman's treatment plan. (R. 323.)

On December 14, 2005, Nurse Morgan prepared a letter stating that Plaintiff suffers from ankylosing spondylitis, and that MRIs revealed significant multilevel compression deformities accounting for "a loss of three inches in height." When Plaintiff first presented to the clinic he was gaunt (weighing 145 pounds), depressed and in signifcant discomfort. The subcutaneous injections of Enbrel and methotrexate, however, helped Plaintiff return to his normal weight (185 pounds) and control his pain. Nurse Morgan stated that Plaintiff must continue taking these medications, along with narcotic pain medication and Fosamax to help slow the progression of bone loss. She cautioned that discontinuing this treatment regimen would result in Plaintiff "revert[ing] back to his previous state of ill health." (R. 331.)

The next medical record is a November 8, 2006 consultative psychological evaluation of Plaintiff performed by William N. Hilger, Ph.D., on behalf of the Bureau of Disability Determination Services ("DDS"). (R. 332-35.) Plaintiff said that he had performed retail work for 3 1/2 years, but that he was continually late and frequently called in sick. When he lost his job and medical insurance in December 2005, he was not able to afford further medication or treatment. (R. 333.) Plaintiff told Dr. Hilger that he did a little vacuuming and cooking at that time, but that he needed to be very careful due to his low bone density and risk of fracture. He was able to dress himself, fold clothes, play on the computer, drive, and bathe, but he also needed more time for each activity and could not sit for long stretches because his body would stiffen. (Id.) Dr. Hilger concluded that Plaintiff is in pain "much of the time" and has "difficulty sitting for extended periods of time or doing anything." He agreed that Plaintiff needs proper medical treatment for his physical conditions, and found him to have "fair mental potential, depending especially on his physical condition, to perform any work related activities." (R. 334-35.)

Two days later on November 10, 2006, Mohammad Vaseemuddin, M.D., completed a Disability Evaluation Report of Plaintiff for DDS. (R. 337-41.) Dr. Vaseemuddin did not have any of Plaintiff's medical records, and noted that ankylosing spondylitis of the spine was "not demonstrable on radiological assessment or examination done at our office today." (R. 337, 340.) Nevertheless, the doctor acknowledged that Plaintiff had been diagnosed with rheumatoid arthritis, ankylosing spondylitis and osteoporosis, and that he complained of early morning stiffness "which needs [to be] assessed further by a rheumatologist." (R. 340.) Dr. Vaseemuddin noted that Plaintiff's pain was much improved when taking Enbrel, and found him able to sit, stand, walk, handle objects and perform fine manipulations. (Id.) Plaintiff complained of chronic pain in his cervical, thoracic and lumbar spine, as well as fatigue, but Dr. Vaseemuddin found him able to move around "without limitation of activity due to pain." Dr. Vaseemuddin further noted that "this may be an important time that he needs to start follow-up in terms of getting his pain under control." (Id.)

On December 4, 2006, David Gilliland, Psy.D., completed a Psychiatric Review Technique Form ("PRTF") on Plaintiff. (R. 348-60.) He found Plaintiff to have a normal mental status, noting the absence of any psychological counseling or treatment. (R. 360.) Virgilio Pilapil, M.D., performed two Physical Residual Functional Capacity ("RFC") Assessments of Plaintiff on December 7, 2006. (R. 362-77.) In both, Dr. Pilapil found Plaintiff capable of occasionally lifting and/or carrying 20 pounds; frequently lifting and/or carrying 10 pounds; sitting (with normal breaks) for 6 hours in an 8-hour workday; and pushing and pulling without limitation. (R. 363, 371.) He assessed no postural, manipulative or environmental limitations, and opined that "[b]ased on current exam and objective findings [Plaintiff's] pain should not be as severe as he makes it." (R. 364-67, 372-75.) Dr. Pilapil noted a history of rheumatoid arthritis, ankylosing spondylitis and osteoporosis, with associated pain; and an inability to sleep for more than two to three hours, with early morning stiffness. He stated that Plaintiff experienced pain relief when taking Enbrel, but opined that he "may need further treatment for better pain control." During the exam, Plaintiff exhibited some reduced range of motion in his spine, hip and neck, but his motor strength was 4. (R. 369, 377.)

2. 2007 through 2008

Plaintiff returned to Dr. Dachman on February 26, 2007 due to a flare of spondylitis. (R. 425-27.) Plaintiff was "extremely noncompliant" with his methotrexate at that time, "perhaps due to finances," and he had significant hand and back pain of at least 5-6/10. He had been off Enbrel for a year due to lack of insurance, and he was getting poor results from a newly started course of Enbrel plus Fosamax and Vicodin. (R. 425.) Dr. Dachman prescribed double Enbrel for four weeks; a Medrol-Dosepak ending with prednisone; continued use of Vicodin and Fosamax; therapy, myofascial release and electrical stimulation; and subcutaneous injections. (R. 427-28.) X-rays taken the same day showed bridging osteophytes at multiple levels in the lower thoracic spine, probably indicating early ankylosing spondylitis; and abnormal sacroiliac joints indicating bilateral symmetric sacroiliitis. (R. 403-04.) X-rays of Plaintiff's hands, wrists, feet and ankles, however, were all unremarkable. (R. 405-12.)

One month later on March 26, 2007, Plaintiff saw Dr. Dachman for another flare of low back pain related to spondylitis. (R. 421-23.) Plaintiff was "not doing well" at that time, exhibiting "substantial lower back pain, limitation of spinal flexion, [and] limitation laterally with a definitely positive Schober's" (i.e., difficulty flexing the back). (R. 421.) Dr. Dachman gave Plaintiff additional injections plus a Medrol-Dosepak, prescribed continued therapy,and contemplated switching him to Humira. (R. 423-24.) When Plaintiff returned to Dr. Dachman on May 14, 2007, he was "actually not doing too bad, although he [wa]s very deconditioned secondary to fatigue." (R. 419.) Plaintiff exhibited good range of motion, but he "look[ed] fatigued and deconditioned with slight weakness proximally." Dr. Dachman diagnosed spondylitis "under fair control complicated by deconditioning."

(R. 420.)

On May 24, 2007, Terry Travis, M.D., affirmed Dr. Gilliland's PRTF finding that Plaintiff does not have any determinable psychiatric impairment or mental problem. (R. 436-41.) On June 18, 2007, Dr. Travis similarly affirmed the December 2006 RFCs performed by Dr. Pilapil. (R. 433-35.) Dr. Travis explained that despite the diagnosis of ankylosing spondylitis, "none of the x-rays or MRI's done show this condition." In Dr. Travis's view, Plaintiff's musculoskeletal system is "fine" and he is able to move his legs, arms and trunk without problems. (R. 435.)

Plaintiff saw Dr. Dachman again on June 25, 2007, but there is nothing new reported in the records. (R. 450.) Plaintiff missed an appointment in July, but returned to Dr. Dachman on October 15, 2007, at which time he was "doing awful" with another flare of spondylitis. (R. 444-46, 448.) Plaintiff told Dr. Dachman that he was experiencing pain at a level of at least 7-10/10 in his lower back and across his neck and shoulders. (R. 444.) He reported working part-time in retail, and driving seven hours from Minnesota to see the doctor. (R. 444-45.) Dr. Dachman ...

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