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Krista J. Braungardt v. Michael J. Astrue

December 21, 2010


The opinion of the court was delivered by: Charles H. Evans, U.S. Magistrate Judge:

3:10-cv-03037-CHE # 15 Page 1 of 22


11:30:27 AM

Clerk, U.S. District Court, ILCD


Plaintiff Krista J. Braungardt appeals from the denial of her application for Social Security Disability Insurance Benefits (Disability Benefits). 42 U.S.C. §§ 416(I), 423. The parties consented, pursuant to 28 U.S.C. § 636, to have this matter proceed before this Court. Consent to Proceed Before a United States Magistrate Judge, and Order of Reference (d/e 5). This appeal is brought pursuant to 42 U.S.C. § 405(g). Pursuant to Local Rule 8.1(D), Plaintiff has filed a Brief in Support of Complaint (d/e 11), which the Court construes as a motion for summary judgment. The Commissioner has filed a Motion for Summary Affirmance (d/e 13) and Commissioner's Memorandum in Support of Motion for Summary Affirmance (d/e 14). For the reasons set forth below, the decision of the Defendant Commissioner of Social Security is affirmed.

STATEMENT OF FACTS Braungardt was born on September 1, 1958. She graduated from high school and completed an EMT training program and is a licensed EMT. Notice of Filing of Supplemental Transcript and Response to Plaintiff's Motion for Extension of Time to Submit Plaintiff's Motion for Summary Judgment (d/e 10), attached Certified Supplemental Transcript of Proceedings before Social Security Administration (Supp. R.). She worked as an EMT, an ambulance dispatcher and a clerical assistant. She last worked on March 28, 2007. Supp. R. 478 - 480.

Braungardt suffered from neck and back pain that radiated into her legs. A March 2007 MRI showed moderate central canal stenosis at L4-5 with disc space bulging at that level. Answer to Complaint (d/e 6), attached Certified Transcript of Proceedings Before the Social Security Administration (R.), at 230. On April 2, 2007, Dr. Brian Russell, M.D., performed a decompressive microforaminotomy and discectomy. R. 246.

She saw Dr. Russell again on May 16, 2007. R. 248. Dr. Russell stated that she looked to be doing much better. She had no pain radiating into her legs, but had some fatigue in her back and legs. He told her not to lift over fifteen to twenty pounds. R. 248. On May 25, 2007, Braungardt saw her primary care physician, Dr. Nathan DeWitt, for allergic rhinitis. Dr. DeWitt noted that Braungardt had gained ten pounds, going from 183 pounds to 193 pounds. R. 259. Braungardt complained of pain in her knees and back. R. 259.

Braungardt saw Dr. Russell again on June 27, 2007. Braungardt did not have severe radiating leg pain, but still had back pain. Dr. Russell suggested physical therapy. R. 249.

On July 2, 2007, Braungardt was evaluated for physical therapy. Braungardt reported that the surgery had not helped her back pain. She stated that the pain was constant and could get to a 9 on a scale of 1 to 10. The evaluator noted that Braungardt had pain with palpitation and worse pain with a prolonged gait. The evaluator rated Braungardt's strength in her bilateral lower extremities at 4. R. 251.

A July 26, 2007, MRI showed a previous L4-5 hemilaminotomy, but no other changes in the lumbar spine. MRI showed thoracic spondylosis with evidence of multilevel degenerative disc disease most marked from T6-7 through T9-10. R. 231. She saw Dr. DeWitt on July 31, 2007. R. 260. Braungardt continued to complain of chronic pain. Dr. DeWitt prescribed Lyrica. R. 261.

Dr. Russell met with Braungardt on August 12, 2007. Dr. Russell told Braungardt that she had degenerative changes in her spine, and he did not believe that any additional surgery was going to be of any benefit. R. 254.

Braungardt went to Dr. Timothy VanFleet, M.D., on September 7, 2007. R. 262-63. Dr. VanFleet noted that Braungardt reported increasing tremendous constant pain in her lumbar spine, thoracic, spine, and anterior chest and that physical therapy exacerbated her pain and made her symptoms worse. R. 262. Dr. VanFleet diagnosed thoracic and lumbar degenerative disc disease, thoracic radiculopathy, and status post laminotomy. Dr. VanFleet suggested epidural steroid injections and reconditioning. R. 263.

On September 27, 2007, Dr. Frank Norbury, M.D., a state agency physician, reviewed Braungardt's medical records and prepared a residual function capacity assessment. Dr. Norbury opined that Braungardt could lift fifty pounds occasionally, twenty-five pounds frequently, sit or stand for six hours in an eight-hour day, and occasionally climb ladders, ropes, and scaffolds. R. 265-72.

Braungardt saw Dr. Paul Smucker, M.D., on November 5, 2007. R. 312-15. Braungardt reported to Dr. Smucker that taking deep breaths, sitting for too long, standing or lying down in one position, or making certain movements would increase her pain. R. 312. Dr. Smucker diagnosed thoracic degenerative disc disease, soft tissue pain in the thoracic area, probable thoracic radiculopathy, and lumbar degenerative disc disease, status post laminotomy. R. 313. Dr. Smucker stated that Braungardt's insurance carrier would not cover epidural steroid injections, but still suggested injections. Dr. Smucker recommended additional physical therapy. R. 312-15.

Braungardt returned to see Dr. Smucker on December 3, 2007. Braungardt reported that her thoracic pain went from left-sided to bilateral and that Lyrica did not help. R. 311. Dr. Smucker noted that Braungardt was not tolerating physical therapy. Dr. Smucker offered to talk to the insurance carrier regarding epidural steroid injections.

R. 311. On December 6, 2007, Dr. Smucker performed an EMG 5 study that showed bilateral thoracic radiculopathy that involved thoracic paraspinals in the T9-10-11 area. R. 309-10.

Dr. Smucker saw Braungardt again on December 28, 2007. He diagnosed thoracic disc herniation with radiculopathy. R. 308. On January 17, 2008, Dr. Smucker performed a left TS transforaminal epidural steroid injection. R. 306. Braungardt returned to Dr. Smucker on February 8, 2008, and reported that the injection was not effective. Dr. Smucker recommended that Braungardt see Dr. VanFleet for possible surgery. R. 320.

On February 11, 2008, Dr. Frank Jimenez, M.D., another state agency physician, reviewed Braungardt's medical records and affirmed Dr. Norbury's assessment. R. 316-18.

On February 25, 2008, Braungardt went to see Dr. Bruce Vest, M.D. Dr. Vest diagnosed post-lumbar laminotomy state at L4-5 on the right side, moderate spinal stenosis at L4-5, and degenerative disc disease with disc bulges at T6-7, T7-8, T8-9, T9-10. R. 339-42. Dr. Vest administered ...

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