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Jackson v. Astrue

November 18, 2010


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


I. Introduction

Terri L. Jackson seeks judicial review of the Social Security Administration Commissioner's decision to deny her applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act and Supplemental Security Income ("SSI") under Title XVI 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 April 14, 2009. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

Claimant first filed for DIB on or about August 7, 2006, with her application being completed on or about August 24, 2006 (Tr. 10, 91.) She alleges a disability onset date of July 25, 2004. (Tr. 91.) Her claim was denied initially and on reconsideration. (Tr. 47, 52.) The Administrative Law Judge ("ALJ") conducted hearings into Claimant's application for benefits on February 13, 2008 (Tr. 18.) At the hearing, Claimant was represented by counsel and testified. (Tr. 18--44.) Dr. Ronald Semerdjian, a Medical Expert ("ME") and James Breen, a Vocational Expert ("VE"), were present and testified. (Tr. 19.) The ALJ issued a written decision denying Claimant's application on May 29, 2008, finding that Claimant could perform jobs that exist in significant numbers in the national economy. (Tr. 15.) Because the Appeals Council denied Claimant's Request for Review regarding the ALJ's decision, that decision constitutes the final decision of the Commissioner. (Tr. 1.)

III. Background

At the hearing, Claimant testified to the following: She was 39 years old at the time of the hearing. (Tr. 22.) She lived with her husband and her 18-- and 22--year old daughters. (Tr. 23.) She completed her GED and had been working as a lunch aid at a high school for approximately two hours per day since August or September of 2007. (Tr. 24.) Prior to her alleged onset date, Claimant was a legal secretary for approximately one year and worked at the United State Postal Service. (Tr. 25--26.) She had stopped working at the Post Office job because of her family situation and because of pain in her back and legs. (Tr. 25.)

Claimant was five feet and eight inches tall and weighed about 320 pounds at the time of her hearing. (Tr. 22.) She used to weigh approximately 220 pounds in 2004, and gained 100 pounds in the intervening four years because her activity level became "little to none." (Tr. 26.) Claimant had surgery on her ankle in July of 2004 and now has nine screws and two plates in her ankle. (Tr. 31.) Her back condition was worsened by the ankle surgery and she had surgery on her back in May of 2005 for a herniated disc. (Tr. 25, 31.) Her condition had gotten worse over the year preceding the hearing. (Tr. 27.) She used to have hardly any pain in her leg and by the time of the hearing she described her leg as hurting all the time. (Tr. 27.) She has pain when bending over to pick things up and if she sits for too long she feels that she may fall over. (Tr. 26--27.) At the time of the hearing, she was taking Vicodin three times per day and Tylenol Arthritis occasionally. (Tr. 27.) One of her doctors told her in March of 2007 that he wanted her to have an another back surgery, but she did not have insurance and had not scheduled the procedure. (Tr. 26, 34.)

On a typical day, Claimant would go to work, come home, watch television, do some laundry, and cook dinner. (Tr. 29.) She drives about three to four times a week, but otherwise her husband usually drives. (Tr. 23.) She does her own grocery shopping about twice a month, but often uses a motorized cart and is accompanied by her daughter or husband. (Tr. 24, 28.) She can dust, cook, and do laundry while sitting down, but does not sweep, mop, vacuum, or wash dishes. (Tr. 27--28.) She gets pain in her back and numbness in her legs if she drives for too long and sitting through a church sermon would cause her discomfort and tingling in her legs. (Tr. 23, 29.) She does not have any hobbies and can no longer bowl. (Tr. 29.) At her job, Claimant can stand or sit, and she stated that the pain would prevent her from performing the job for eight hours a day. (Tr. 29.)

Claimant stated that she had problems standing for long periods of time, and that she could stand for the hours that she was at work but it caused her leg to hurt "a lot." (Tr. 30.) She has trouble sitting for long periods because her legs go numb and tingle. (Tr. 30.) She is able to lift a gallon of milk and can use her hands and fingers to button buttons or operate zippers. (Tr. 30.) She has trouble going up and down stairs and needs a railing to do so. (Tr. 30.) Claimant also had problems with deep vein thrombosis, for which she was taking Warfarin, a blood thinner medication. (Tr. 31--32.) In total, Claimant spent almost $200 per month on medication, and could not afford the additional $900 per month it would cost for her to take Topomax. (Tr. 33.) She was given epidural blocks after her back surgery but they provided no relief. (Tr. 33.) The Vicodin dulls her pain but does not take it away. (Tr. 34.)

The ME testified that Claimant's ankle responded relatively satisfactorily to her surgical procedure. (Tr. 35.) The results of her microdisectomy procedure were less than satisfactory. (Tr. 35.) He noted that an MRI from June 5, 2006 indicated some progressive change with left-sided epidural scarring at the L-4/5 level but that he was "a little bit uncertain" because of a January 2007 note that Claimant was neurologically intact with a negative straight leg raise test. (Tr. 35.) The ME highlighted three medical exams between May and June of 2007 where there was no mention of leg pain, though two of the exams were for unrelated medical issues. (Tr. 35.) The ME opined that Claimant had a capacity between sedentary and medium, at which point the VE interjected that from a vocational standpoint Claimant would be limited to sedentary. (Tr. 36.) The ME stated that Claimant could walk intermittently for two out of eight hours, sit with a sit/stand option, and would have difficulty bending, squatting, or climbing. (Tr. 38.)

The VE testified that Claimant had held only one job in the past where she was gainfully employed. (Tr. 25, 41.) She worked as a mail processor, which was semiskilled and light to medium as Claimant performed it. (Tr. 41.) The ALJ posed a hypothetical to the VE asking what types of jobs could be performed by a person of Claimant's age, education, and work experience with the following limitations: that she be limited to lifting 20 pounds occasionally; 10 pounds frequently; could stand and walk two out of eight hours in divided periods; sit six out of eight hours with sit/stand option approximately every 30 minutes; be limited to occasional posturals, but could not climb any ropes or scaffolds; and should not work around unprotected heights or dangerous moving machinery. (Tr. 41--42.) The VE opined that Claimant could not return to her past relevant work, but that as long as the sit/stand option didn't take her off task for more than 10% of the day or take away from her job site, she would be able to perform the unskilled sedentary jobs of account clerk, eyeglass assembly, or printed circuit board assembly. (Tr. 42.) In total, the VE testified that there were 1,540 such jobs in the Rockford area and 13,700 in the Chicagoland area. (Tr. 42.) The VE also noted that a person who needed to take unscheduled breaks, or a person who would be absent more than 10 to 12 days a year would be unemployable. (Tr. 43.)

IV. Medical Evidence

Claimant's medical record reveals complaints of left sided lower back pain dating to a visit with Laura Jill Wirfs, RN, FNP, through Rockford Health System on July 24, 2003. (Tr. 226.) At the visit, claimant stated that her hands and feet are swollen and that her face feels swollen. (Tr. 226.) The medical report also describes how Claimant had increased from 186 pounds two years prior to 271 pounds at the time of the appointment. (Tr. 226.) The treating nurse noted concerns of kidney or thyroid pathology based on Claimant's edema. (Tr. 226.)

On April 16, 2004, Claimant was seen at a Rockford Health System by Nurse Practitioner Wirfs for back pain. (Tr. 228.) Claimant alleged that she had been experiencing pain for about two weeks that was worse on the left side of her back and radiated into her legs. (Tr. 228.) She stated that the pain got as severe as an 8 on a scale of 1 to 10, but that it was currently a 3 and could be lessened by ibuprofin. (Tr. 228.) Claimant was assessed as having sacroiliac fasciitis, or swelling and tenderness of tissue in or around her lower back. (Tr. 228.)

On August 2, 2004, Claimant saw Dr. Jon B. Whitehurst, M.D., on a referral for consideration of surgery after she reportedly fell while exiting an RV and had been diagnosed at a local emergency room with a sprain of her left ankle and a fracture of her right ankle. (Tr. 299.) A CT scan of her right ankle revealed two fractures. (Tr. 300.) Dr. Whitehurst assessed Claimant as having an unstable ankle fracture and referred her to Dr. Sorkin for open reduction and internal fixation surgery. (Tr. 299.) Claimant's left ankle was placed in a "Cam walker" to allow her to ambulate. (Tr. 299.)

Dr. Anthony T. Sorkin, M.D., performed surgery on Claimant's right ankle on August 9, 2004. (Tr. 306--07.) Procedures were performed on fractures in the distal fibula and the medial malleolus. (Tr. 307.) Claimant had at least one plate and numerous screws inserted into her ankle. (Tr. 306--07.) Dr. Sorkin reported that Claimant tolerated the procedure well. (Tr. 307.) At a September 20, 2004 evaluation, Dr. Sorkin noted that Claimant denied having much pain, but that she felt more pain in her left ankle than her right ankle. (Tr. 304.) Dr. Sorkin also indicated that Claimant was wearing a boot on the right ankle, required the use of a walker for ambulation, was unable to negotiate stairs step-over-step, and was receiving help from her kids to do cooking and cleaning. (Tr. 304.) Dr. Sorkin ordered Claimant to undergo physical therapy sessions and a home exercise program in order to regain her previous level of function. (Tr. 305.)

On October 25, 2004 Dr. Sorkin saw Claimant and noted that her ankle was healing, that she was able to stand on her right leg without significant discomfort, and that she could resume activities as tolerated. (Tr. 295.) On December 12, 2004, Dr. Sorkin reported that Claimant had attended seven of twelve physical therapy sessions with three cancellations and two no-shows. (Tr. 302.) She was able to demonstrate improvement in her range of motion but was still unable to perform stairs step-over-step. (Tr. 302.) Claimant did not show up for her last scheduled appointment and did not schedule any further visits, so she was discharged from physical therapy. (Tr. 302--03.)

Claimant had a visit with Nurse Practitioner Lisa Larson, N.P., at Rockford Clinic on February 24, 2005. (Tr. 235.) Claimant reported persistent back pain since her 2004 accident, and Ms. Larson ordered a lumbar spine x-ray to look for herniation of the disc or narrowing. (Tr. 235.) Nurse Larson indicated that Claimant may need to proceed to an MRI based on the xray. (Tr. 235.) On March 14, 2005, Claimant returned to Rockford Clinic to discuss the results of an MRI. (Tr. 237.) Nurse Larson found a large disc herniation based on the MRI and suggested Claimant go to a Pain Center to see a neurosurgeon. (Tr. 237.)

Claimant was referred to Dr. Linda Li, M.D., for an evaluation on March 16, 2005. (Tr. 321.) Dr. Li's notes indicate that Claimant complained of back pain after her fall in 2004 that ranged from a five to an eight on a scale of one through ten. (Tr. 321.) The notes also indicate that Claimant underwent a lumbar x-ray and an MRI on March 11, 2005, which revealed a large central disc herniation at L4-L5 level. (Tr. 321.) Dr. Li noted that claimant had a hard time walking long distances, even while shopping, because of her pain. (Tr. 321.) Dr. Li also recorded that Claimant had been on unemployment for more than a year, but that it was not related to a health reason. (Tr. 321.) Ultimately, Dr. Li suggested Claimant have an EMG, nerve conduction study, and epidural injection. (Tr. 322.) She also suggested that a muscle relaxant would decrease muscle spasms around Claimant's paraspinal muscles and hamstrings, and prescribed Daypro*fn1 , Neurontin*fn2 , and Zanaflex*fn3 . (Tr. 322.)

Claimant underwent an EMG and nerve conduction study on March 17, 2005. (Tr. 318.) The next day, she received an epidural steroid injection from Dr. Li. (Tr. 318.) During the examination prior to the injection, Dr. Li noted that she did not educe any deep tendon reflex and that the knee jerk and Achilles tendon reflex were both absent. (Tr. 318.) She also found that the right L5 region was very weak, and that the "right side L5 innervated muscle definitely has neurological weakness." (Tr. 318.) The first steroid injection reduced Claimant's pain to a 5/10 on a ten point scale. (Tr. 315.) She received two more epidural steroid injections on March 25, 2005 and April 1, 2005. (Tr. 312, 315.) At a follow-up visit on April 8, 2005, Dr. Li noted that Claimant's back pain was better and that she was able to sleep a few hours at night, but that her right leg was still weak and felt as though it would give out on her. (Tr. 310.) Dr. Li noted that her plan was to refer Claimant to a neurosurgeon, and to physical therapy after the neurosurgeon consult. (Tr. 310.)

Dr. Li referred the Claimant to Dr. Todd D. Alexander, M.D., S.C., who saw the Claimant on May 12, 2005. (Tr. 338.) Dr. Alexander noted that Claimant reported numbness, tingling, and weakness in her lower extremities, particularly on the right side. (Tr. 338.) He wrote that she had experienced episodes of bladder incontinence since the incident in July 2004 that resulted in a broken right ankle, and that she has difficulty climbing stairs. (Tr. 338.) Dr. Alexander's review of Claimant's March 11, 2005 MRI indicated a very large L4-5 herniated disc of the extrusion variety that fills the majority of the spinal canal, and he recommended surgical treatment. (Tr. 338, 345.)

On May 25, 2005, Dr. Alexander performed microdiskectomy surgery on Claimant. (Tr. 345.) Claimant tolerated the procedure well. (Tr. 346.) She attended a post-operative follow-up visit on May 27, 2005 where she reported some left sciatic buttock pain, but there was no evidence of swelling or pseudomeningocele around the surgical area. (Tr. 337) Claimant was prescribed a Medrol*fn4 dosepak and Valium for muscle spasms. (Tr. 337.) At a June 3, 2005 follow-up appointment, Michelle Heidel, C.N.R.N., noted that Claimant reported that she was feeling much better and that her leg pain was completely gone. (Tr. 336.) She was given a prescription for physical therapy. (Tr. 336.)

On June 15, 2005, Claimant was evaluated by physical therapist Laura L. Chambers Isely, PT, based on the referral from Dr. Alexander. (Tr. 340.) According to Ms. Chambers Isely's letter to Dr. Alexander, Claimant reported stiffness or pain at times, but no symptoms of numbness or tingling radiating into her legs. (Tr. 340.) The letter also noted that Claimant had been attempting to walk for five to ten minutes per day, which was her maximum. (Tr. 340.) Claimant reported that her goals were to return to being able to perform normal household activities, and to be able to begin an exercise program. (Tr. 340.) The letter indicated that Claimant was limited in her lower extremity range of motion and demonstrated decreased mobility and function secondary to her recent surgery. (Tr. 340.) The goals of her physical therapy were to restore a normal pain-free erect posture, to restore full pain-free trunk range of motion in all planes, to allow Claimant to ambulate up to 30 minutes continuously without pain, and to allow Claimant to perform normal household activities with proper body mechanics and neutral spine positioning. (Tr. 341.)

Claimant saw her orthopedist on June 20, 2005, and an ultrasound revealed a deep vein thrombosis that caused Claimant to be referred to the emergency room at Rockford Memorial Hospital. (Tr. 343.) Dr. Asner, on call for Dr. Alexander, prescribed anticoagulation therapy and Claimant was given Lovenox*fn5 and a prescription for Coumadin*fn6 . (Tr. 343.) Claimant was discharged from the hospital at her own request in the company of family and with close outpatient follow-up. (Tr. 344.) She followed up with Nurse Larson at Rockford Clinic on June 23, 2005, where it was noted that the leg pain was gone and that she was feeling fine. (Tr. 241.) Claimant was started on anticoagulation therapy. (Tr. 241.)

Dr. Alexander reported to Dr. Li that he saw Claimant on July 7, 2005, and that she reported good relief from her radicular pain. (Tr. 335.) Dr. Alexander's letter noted that Claimant had some leg pain from a deep venous thrombosis that she developed as a complication. (Tr. 335.) Dr. Alexander also noted that there were no "return to work issues" because Claimant was a homemaker. (Tr. 335.) Overall, Dr. Alexander's impression was that Claimant had done well following the surgery, and that she would complete her physical therapy and return to normal activities. (Tr. 335.)

In a letter dated August 29, 2005, physical therapist Chambers Isely sent a letter to Dr. Alexander summarizing Claimant's physical therapy. (Tr. 385.) After her emergency room visit in June 2005, Claimant returned for physical therapy on July 12, 2005. (Tr. 385.) She was able to appear for three total visits, despite being scheduled for twice a week, and cancelled all further visits on August 31, 2005. (Tr. 385.) Chambers Isely ...

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