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Anthony v. Astrue

October 26, 2010

DAVID M. ANTHONY, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge

OPINION

Plaintiff David Anthony appeals from a final decision of the Social Security Administration (SSA) denying his application for supplemental security income (SSI) and disability insurance benefits (DIB) under sections 216(I), 223(d), and 1614(a)(3)(A) of the Social Security Act. See 42 U.S.C. §§ 416(I), 423(d) & 1382c(a)(3)(A). Anthony brings this appeal pursuant to 42 U.S.C. § 405(g). The parties have consented to a determination of the case by a United States Magistrate Judge, pursuant to 28 U.S.C. § 636. Order, April 30, 2010 (d/e 11). The parties have filed cross-motions for summary judgment or affirmance pursuant to Local Rule 8.1(D). Brief in Support of Complaint (d/e 10) (Plaintiff's Brief); Motion for Summary Affirmance (d/e 14). For the reasons set forth below, Anthony's request for summary judgment is denied, and the SSA's request for summary affirmance is allowed.

STATEMENT OF FACTS

A. Medical History

Anthony was born July 15, 1977. Answer (d/e 8), Attachments 3 - 12, Administrative Record (A.R.) at 14.*fn1 He attended twelfth grade, but did not graduate from high school. A.R. at 42-43. He lives with his girlfriend and his two children. He was in a car accident on July 16, 2003, during which he sustained injuries to his back, neck, and head. A.R. at 21-22. Anthony was hospitalized for four days following the car accident. A.R. at 307. Treatment notes indicate that Anthony lost consciousness and suffered an impact seizure at the scene of the accident. When he arrived at the hospital, Anthony was agitated and combative. As a result, he was "sedated, paralyzed, and intubated." Id. He was admitted to the intensive care unit under continued sedation, where he continued to improve. CT scans of Anthony's brain were normal. Anthony was slow to ambulate, but by the time he was released from the hospital, he was ambulatory with some assistance and minimal complaints. Discharge instructions directed Anthony to refrain from working or driving and to follow up in one week. X-rays of Anthony's spine taken July 26, 2003 were normal, as was an electroencephalogram (EEG) performed July 28, 2003. A.R. at 303-06.

On August 21, 2003, Anthony saw Kurt Heimbrecht, M.D. A.R. at 182. Dr. Heimbrecht noted that CT scans and x-rays following the accident were negative and that Robert Kraus, Jr., M.D. had released Anthony to return to work. Anthony reported a left sided headache that did not respond to prescribed ibuprofen and tingling and shaking in his right hand and feet. Anthony stated that his leg gave out occasionally and he did not feel able to return to work at Speed Lube. Anthony also reported stuttering more than previously, a little bit of memory loss, and a little bit of left-sided neck pain. Dr. Heimbrecht noted no appreciable stuttering and a supple neck. Dr. Heimbrecht's assessment was mild memory loss and headache. Dr. Heimbrecht extended Anthony's work note, directing that Anthony should not work until seen again. He referred Anthony to a neurologist, ordered more physical therapy, and directed follow up in two weeks.

Anthony saw Dr. Heimbretch again on September 8, 2003. A.R. at 181. Dr. Heimbretch noted that the stuttering and tingling were better, but Anthony still experienced occasional headaches. Anthony reported a fair amount of fatigue, lower back pain, and heartburn. Dr. Heimbretch directed Anthony to continue with physical therapy and to follow up in two weeks. Dr. Heimbretch anticipated that Anthony would be released to work at that time, but noted that he was not quite up to work yet.

On September 22, 2003, Anthony saw Dr. Heimbretch and asked if he could go back to work. A.R. at 178. Anthony reported seeing Dr. Ahmed, who changed his medications. Anthony also reported occasional shaking in his hand, that did not affect his handwriting. Anthony stated that he was experiencing neck pain, and Dr. Heimbretch noted a tentative diagnosis of whiplash. Dr. Heimbretch noted that Anthony exhibited a good range of motion in the neck and right shoulder, however, he concluded that Anthony "could very well" be suffering from whiplash. Id. Dr. Heimbretch directed Anthony to continue on his current medications and to follow up in three weeks. A work note was given. An EEG performed September 24, 2003 was normal. A.R. at 302. An MRI performed October 1, 2003 was also normal. A.R. at 301. Radiographs of the cervical spine showed disc dessication and small herniations. A.R. at 299-300.

On October 16, 2003, Anthony reported to Dr. Heimbretch that Dr. Ahmed wanted him to be off from work for another two months.

A.R. at 179. Dr. Heimbrecht noted that Anthony still had a little bit of a limp and that most of his symptoms were not much better. Dr. Heimbretch assessed Anthony as suffering from neck pain and abdominal pain, although he noted that Anthony's neck was supple. Dr. Heimbretch issued a work note and directed follow up in two months.

Anthony saw Dr. Heimbretch again on December 17, 2003. A.R. at 176. Anthony reported that he had to take a day off from work due to severe lower back pain. Dr. Heimbretch noted that Anthony "continues to have low back pain especially when it's cold weather. Even gets a headache." Id. Dr. Heimbretch released Anthony to return to work with no overhead work, ladder use, or climbing.

On April 2, 2004, Anthony returned to see Dr. Heimbretch, complaining of abdominal pain for three weeks. Dr. Heimbretch noted that Anthony's shoulder was "getting better," but that he occasionally took Aleve. A.R. at 177. Dr. Heimbretch opined that Anthony may have an ulcer that could be the result of non-steroidal anti-inflammatory medicine.

He directed Anthony to discontinue using Aleve. On April 28, 2004, Anthony saw Dr. Heimbretch for a hemorrhoid. A.R. at 175.

On June 10, 2004, Anthony saw Dr. Heimbretch complaining of lower back pain that began five days prior and abdominal pain. A.R. at 173. Anthony reported that he had been to the emergency room for the back pain, where he received a pain shot that helped briefly. Anthony also reported that he had been working at Speed Lube. Dr. Heimbretch concluded that Anthony had suffered a simple low back strain which should resolve on its own.

An ultrasound of Anthony's abdomen, performed on August 19, 2004, was normal. A.R. at 298. Anthony presented to the emergency room on August 20, 2004, complaining of lower back pain. A.R. at 294-96. Anthony reported that the back pain had flared up about one week prior. Anthony sought a note excusing him from work for a while. The doctor ordered Anthony off work for the next day only and directed him to follow up with Dr. Heimbretch early the next week.

Anthony returned to the emergency room on August 29, 2004, again complaining of lower back pain. A.R. at 291-92. Treatment notes indicate that Anthony stated that he had difficulty returning to work due to back pain. The doctor told Anthony that, if he wanted disability paperwork, he needed to see his primary care doctor. At this point, Anthony stood up, took off his gown, swore about the poor care in the hospital, and left. The emergency room doctor's notes indicate "I never had the chance to examine the patient." A.R. at 291. Anthony visited Dr. Heimbretch on August 30, 2004. A.R. at 172. Anthony reported "more back pain ever since working in the pit area at Speed Lube" and that the pain was such that he could not do more than lie down when he gets home from work. Id. Dr. Heimbretch's notes indicate that Anthony "was told by a doctor in St. Louis (went there at the advice of his attorney) that he has a pinched nerve in his neck and a disc problem at L5-6. There is no record of this." Id. Dr. Heimbretch noted some palpable lower back tenderness, although a straight leg raise was negative, and that Anthony seemed to be frustrated. Dr. Heimbretch issued Anthony a work note and suggested that Anthony consider epidural steroid injection.

In November 2004, Anthony saw David Gregory, M.D., as a new patient. Anthony was seeking a referral to the Sarah Bush Lincoln Health Center physician's pain clinic. A.R. at 357-58. Dr. Gregory noted that Anthony's neck was supple, and a straight leg raise was negative bilaterally. Dr. Gregory noted obvious limited range of motion in Anthony's lower back, secondary to pain. At a follow up in January 2005, Anthony reported abdominal pain, headaches, blurred vision and a lot of shaking in his right hand. A.R. at 356-57. By February 14, 2005, Anthony reported that his headaches were improved, but he complained of lower abdominal pain. A.R. at 355.

At a follow up on May 16, 2005, Dr. Gregory noted that Anthony did not have any problems with his back pain but that his acid reflux was "bothering a lot." A.R. at 353. Dr. Gregory noted that Anthony was still working as a mechanic. Id. Anthony saw Dr. Gregory in July 2005, complaining of acid reflux and abdominal pain. A.R. at 352. Dr. Gregory's notes from the visit make no mention of back pain. Anthony returned to see Dr. Gregory on August 3, 2005, for acid reflux, abdominal pain, and epigastric pain. A.R. at 351. Dr. Gregory noted that Anthony had a history of back pain. Id.

On August 9, 2005, Anthony saw a physician's assistant for follow up on abdominal pain and headaches. A.R. at 350. Anthony also reported that he was experiencing some low back pain. Id. The physician's assistant noted mild tenderness to palpation bilaterally in Anthony's back, but no spinal tenderness, bony abnormalities, bruising, or redness of the skin. Id. On August 11, 2005, Anthony saw another physician's assistant, complaining of sore throat, fever, and chills. A.R. at 349-50. The physician's assistant diagnosed strep throat and prescribed antibiotics.

In December 2005, Anthony returned to see Dr. Gregory for evaluation of left elbow pain and back pain. A.R. at 348. Anthony reported that he slipped at home and fell. He had visited the emergency room, where x-rays were negative. Anthony was taking Tylenol 3 and muscle relaxers, which he stated were "working fine." Id. Dr. Gregory noted "[c]ontusion to the left elbow and low back pain secondary to fall" and directed Anthony to continue with all chronic medications as well as the medications prescribed at the emergency room. Id.

On July 5, 2006, Anthony was examined by Hima Atluri, M.D. A.R. at 402-06. Dr. Atluri noted that Anthony's grip strength was strong and equal bilaterally. A straight leg raising test was abnormal, at not more than sixty degrees. Anthony's back flexion was limited to sixty degrees, with extension less than ten degrees. Dr. Atluri noted minimal tenderness in the lower lumbar area. Side-to-side movements were less than ten degrees. Anthony exhibited a normal gait. Dr. Atluri noted that Anthony experienced moderate difficulty in walking on his toes and heels. Dr. Atluri further noted that Anthony was unable to squat and arise or hop on one leg. Dr. Atluri administered a "mini mental score examination." A.R. at 406. Anthony scored 21 out of 30, which correlated into mild cognitive impairment.

Dr. Atluri noted the following diagnostic impressions: (1) lower lumbar pain with significant stiffness and abnormal straight leg raise, but no neurovascular compromise; (2) headache and memory problems; and (3) nicotine dependence. A.R. at 405.

On August 4, 2006, Licensed Clinical Psychologist Stephen Vincent, Ph.D. performed a Mental Status Examination and IQ Assessment. A.R. at 407-10. Dr. Vincent noted noticeable tremors in Anthony's hands, which were evident at rest as well as upon voluntary movement. A.R. at 407. Anthony reported that he had been laid off from Speed Lube in January 2006 due to problems with co-workers and supervisors, as well as difficulty maintaining the required pace of work. Anthony informed Dr. Vincent that he was depressed and worried about his overall ability to care for himself due to chronic pain and fatigue. Anthony reported that he hurt constantly and his memory was not as good as it used to be, making it difficult for him to finish tasks. Anthony reported that his energy level was low and he had to pace himself to avoid exacerbating his neck and lower back pain.

Dr. Vincent noted that Anthony's mood was mildly depressed and that his "[t]hought processes, although somewhat slow and concrete, were logical, coherent and relevant and quite consistent with the IQ data, placing him within the borderline range." A.R. at 408. Anthony exhibited difficulty spelling and was unable to do simple multiplication or division. Testing revealed a verbal IQ of 72, a performance IQ of 78, and a full scale IQ of 73. Dr. Vincent noted that Anthony was functioning within the borderline range of intellectual abilities. Dr. Vincent noted the following diagnostic impressions: (1) mood disorder secondary to general medical condition with major depressive-like features and (2) borderline intellectual functioning.

On August 25, 2006, Phyllis Brister, Ph.D. reviewed Anthony's medical records. A.R. at 411-28. She opined that Anthony suffered from borderline intellectual functioning and mood disorder. However, she determined that Anthony's impairments did not meet or equal any Listing. According to Dr. Brister, Anthony had mild limitation in activities of daily living, moderate limitation in maintaining social functioning, moderate limitation in maintaining concentration, persistence, or pace, and no episodes of decompensation of extended duration. A.R. at 421. Dr. Brister completed a Mental Residual Functional Capacity Assessment for Anthony, noting moderate limitations in the following areas: ability to understand and remember detailed instructions; ability to carry out detailed instructions; ability to maintain attention and concentration for extended periods; ability to work in coordination with or proximity to others without being distracted by them; ability to interact appropriately with the general public; ability to accept instructions and respond appropriately to criticism from supervisors; and ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes. A.R. at 425-26. Dr. Brister opined that Anthony retained the "ability to understand, recall and execute simple operation of a routine, repetitive nature. Would do best in socially restricted setting. Retains ability to adapt to routine. Capable Simple [substantial gainful activity]." A.R. at 427.

On August 30, 2006, Delano Zimmerman, M.D. reviewed Anthony's medical records and completed a Physical Residual Functional Capacity Assessment. A.R. at 429-36. Dr. Zimmerman opined that Anthony could lift fifty pounds occasionally and twenty-five pounds frequently, could stand and/or walk about six hours in an eight-hour workday, could sit about six hours in an eight-hour workday, and perform unlimited pushing and/or pulling. Dr. Zimmerman opined that Anthony could frequently balance, kneel, and crawl, but only occasionally climb ramps, stairs, ladders, ropes, or scaffolds, stoop, and crouch. Dr. Zimmerman noted no manipulative, vision, or communicative limitations, but noted that Anthony should avoid concentrated exposure to hazards.

Anthony began treatment with chiropractor Dr. John Warrington on February 1, 2007. A.R. at 442-459. Dr. Warrington referred Anthony to Jay Riseman, M.D. for pharmaceutical management as co-treatment with his physical therapy. On May 4, 2007, Dr. Warrington wrote a letter, opining that Anthony suffered from spondylolistheses and degenerative disc disease.*fn2 He stated as follows: "Anthony's impairment is extensive and permanent. His impairment will be more than 12 months. He cannot engage in substantial gainful employment at this time." A.R. at 442.

On August 7, 2007, Anthony saw Edward Trudeau, M.D. for evaluation of Anthony's upper left extremity. A.R. at 461-65. Dr. Trudeau noted that Anthony had many problems from head to toe and was depressed about his inability to work. A.R. at 461. Anthony reported discomfort up and down his left arm and pain in his back and lower extremities. Dr. Trudeau performed electrodiagnostic studies of Anthony's left upper extremity. Dr. Trudeau noted the results as follows:

Detailed nerve conduction studies in the left upper extremity were normal, fortunately for Mr. Anthony. Detailed needle electromyographic examination of the left upper extremity revealed irritability, occasional positive waves, increase in polyphasia of motor unit potentials and decrease of motor unit potential number at maximal interference pattern in left posterior interosseous innervated muscles. Other muscles were normal, fortunately for Mr. Anthony.

A.R. at 462 (emphasis in original). Dr. Trudeau diagnosed mild posterior interosseous neuropathy in Anthony's left forearm and noted that there was no evidence of other entrapment neuropathy, left cervical ...


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