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Robert Compean v. Michael J. Astrue

March 28, 2011

ROBERT COMPEAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Nolan

MEMORANDUM OPINION AND ORDER

Plaintiff Robert Compean filed this action seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act").*fn1 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). Mr. Compean filed a motion for judgment on the pleadings and the Commissioner filed a cross-motion for summary judgment. For the reasons stated below, Mr. Compean's motion is denied, the Commissioner's motion is granted, and the final decision of the Commissioner of Social Security is affirmed.

PROCEDURAL HISTORY

Mr. Compean applied for DIB and SSI on October 16, 2006, alleging he became disabled because of congestive heart failure, sleep apnea, a brain aneurysm, diabetes, high blood pressure, high cholesterol, and an intracerebral hemorrhage. (R. at 126-131, 132-134, 144). He alleged these impairments caused him to have memory problems, weakness in his legs, disorientation, an inability to lift heavy objects, and an inability to get up quickly. (R. at 147).

The applications were denied initially and on reconsideration, after which Mr. Compean filed a timely request for a hearing. (R. at 75-82, 101-108, 110-114). On April 22, 2008, Mr. Compean, represented by counsel, testified at a hearing before an Administrative Law Judge ("ALJ"). (R. at 5-22). The ALJ also heard testimony from Lee Newton, a vocational expert ("VE"). (R. at 22-27). On December 16, 2008, the ALJ found that Mr. Compean was not disabled because he could perform a significant number of jobs in the national economy. (R. at 60-70). On July 20, 2009, the Appeals Council issued a partially favorable decision, finding Mr. Compean disabled as of, but not prior to, June 25, 2008 (his 50th birthday). (R. at 31-38). Mr. Compean now seeks judicial review of the Appeals Council's determination that he was not disabled from October 16, 2006 (the date of his application) to June 24, 2008, which stands as the final decision of the Commissioner.

FACTUAL BACKGROUND

Mr. Compean was born on June 26, 1958. (R. at 20). He testified that he does not have a high school diploma or GED. (R. at 5). Mr. Compean explained that he worked as a dock man and spotter prior to the onset of his impairments and operated equipment such as spotting trucks and forklifts. (R. at 7-8).

A. Medical Evidence

On December 1, 2004, Mr. Compean visited Dr. K. Ahmed and was diagnosed with chronic obstructive pulmonary disease ("COPD"). (R. at 642). Dr. Ahmed noted that Mr. Compean had dyspnea (shortness of breath) after walking less than 100 yards. Id.

1. Intracerebral Hemorrhage Hospitalization

On July 27, 2006, Mr. Compean was admitted to MacNeal Hospital in Berwyn, Illinois complaining of headaches and a stiff neck. (R. at 647-49). After a CT scan, Mr. Compean was diagnosed with an intracerebral hemorrhage due to hypertension. (R. at 647). Dr. Calvin W adley noted a history of congestive heart failure and hypertension. (R. at 648). Dr. W adley's neurological assessment described Mr. Compean as "alert," with cranial nerve and motor functions intact, no focal extremity weakness, and no pronator drift. (R. at 648). On July 31, 2006, Mr. Compean was transferred from MacNeal Hospital to Northwestern Memorial Hospital at a doctor's request. (R. at 447).

During his stay at Northwestern Memorial Hospital, Mr. Compean was treated for a variety of impairments. An August 1, 2006 neurological consultation performed by Dr. Rajeev Garg indicated Mr. Compean had impaired alertness, speech, and attention. (R. at 429-33). Specifically, Dr. Garg noted Mr. Compean was "remarkable for worsened encephalopathy (due to bicerebral dysfunction) and left medial rectus palsy." (R. at 432). On August 2, 2006, an electroencephalography test indicated abnormal results due to focal left frontal slowing, which Dr. Garg stated was consistent with mild focal cerebral dysfunction. (R. at 504).

An August 3, 2006 speech pathology evaluation by speech-language therapist Kristin Larsen noted that Mr. Compean had memory deficits. (R. at 294-95). Ms. Larsen noted that Mr. Compean had "mild-moderate cognitive communication difficulties characterized by reduced shortterm memory, difficulty with problem-solving, and reduced auditory processing." (R. at 294). The long-term goals of speech therapy for Mr. Compean were to "stabilize cognitive-communication skills for functional activities of daily life." (R. at 295).

Kathleen Schmidt performed a diabetes consultation with Mr. Compean on August 3, 2006. (R. at 413-14). The record does not indicate Ms. Schmidt's job title. Ms. Schmidt recommended a treatment plan of 25 units of Lantus, blood sugar checks before meals and at bedtime with coverage per medium dose Novolog scale for sugars greater than 150 mg/dl, and prandial Novolog insulin 3 units with meals once tolerating oral intake. (R. 414). That same day, Dr. Bernard Bendok noted that Mr. Compean was seven days post intraventricular hemorrhage and "neurologically intact." (R. at 445).

On August 4, 2006, a sleep study was conducted by Dr. Lisa W olf. (R. at 506). The study confirmed Mr. Compean's diagnosis of obstructive sleep apnea ("OSA"). Id. The report indicated that a nasal CPAP device was required due to the severity of Mr. Compean's OSA. Id. In addition, the report noted that "[p]ersons with excessive daytime sleepiness may be at an increased risk for motor vehicle accidents." Id.

On August 7, 2006, Kristin Larsen conducted another series of cognitive evaluations on Mr. Compean. (R. at 551-52). Mr. Compean initially had a 0% accuracy rate on a short-term memory evaluation. (R. at 551). Ms. Larsen noted he was oriented to person and place but "not consistently oriented to time." Id. Mr. Compean had a 30% accuracy rate to follow 3-step direction with no repetition. Id. Mr. Compean reported that while he has always had some problems with short-term memory, he was near baseline with multi-step directions. Id. Ms. Larsen presented Mr. Compean with a few strategies such as rehearsal and written cues to compensate for his decreased shortterm memory. Id. Mr. Compean's accuracy increased to 100% on the recall list of 3 words after short delay after the discussion of the rehearsal/association strategies. (R. at 552). Ms. Larsen noted that the long-term goal of the therapy was to "stabilize cognitive-communication skills for functional activities of daily living." Id.

On August 8, 2006, another diabetes consultation performed by Elyssa Springer, an Advanced Practice Nurse, noted that Mr. Compean verbalized depression and felt overwhelmed by his health issues. (R. at 202). Ms. Springer's assessment of Mr. Compean listed a diagnoses of Type 2 diabetes. (R. 203). She presented him with a course of treatment involving insulin monitoring, diet, exercise, and diabetes education. Id. An August 8, 2006, neurological assessment indicated Mr. Compean was "within normal limits." (R. at 522). On August 8, 2006 Mr. Compean was discharged from Northwestern Memorial Hospital. (R. at 198).

2. Second MacNeal Hospitalization

On August 9, 2006, one day after discharge from Northwestern Memorial Hospital, Mr. Compean was again admitted to MacNeal Hospital in Berwyn complaining of dizziness. (R. at 617). W hile admitted or being admitted, Mr. Compean's daughter checked a box in response to a nursing admission history questionnaire which stated he was not "currently experiencing difficulty in concentration, disorientation/confusion, lethargy or social withdrawal." (R. at 621). An August 9, 2006 computerized tomography exam revealed Mr. Compean's hemorrhage had decreased slightly in size since the July 31, 2006 computerized tomography exam. (R. at 638).

An August 10, 2006 MacNeal assessment form listed Mr. Compean as oriented to person, place, and time as well as able to follow simple commands and speak appropriately. (R. at 626). Memory problems were not observed or reported on that form. Id. On August 15, 2006, Mr. Compean underwent another CT scan, which was evaluated by Dr. Stephen F. Futterer. (R. 204-05). The scan revealed the hemorrhage had progressed as expected without overt hydrocephalus.*fn2

(R. at 204). An August 15, 2006 progress note by Dr. Peter Lee stated that Mr. Compean was asymptomatic and without complaints after being admitted. (R. at 206). Dr. Lee noted that Mr. Compean was neurologically stable after his latest fainting episode and his CT scan appeared stable compared to prior scans. (R. at 207).

3. Other Medical Records

In November 2006, Mr. Compean complained of neck pain. (R. 738). A radiological exam reveal no obvious fracture or dislocation as well as intervertebral disk spaces well preserved. Id. On November 17, 2006, Mr. Compean visited the Eerie Family Medical Center complaining of numbness and tingling in his left hand. (R. at 687). He was diagnosed with degenerative arthritis in his spine. (R. at 687).

On December 18, 2006, Dr. Peter Biale performed a consultative exam. (R. at 667). The exam last for 30 minutes and reviewed Mr. Compean's vital signs, general appearance, skin, head, eyes, ears, nose, throat, neck, lungs, cardiac functioning, back, abdomen, peripheral pulses, extremities, musculoskeletal status, neurological status, and mental status. (R. at 667-70). In his clinical impressions, Dr. Biale opined that Mr. Compean does not have any gross neurological deficits, except for being Romberg positive (indicating a balance impairment). (R. at 670). Dr. Biale found that Mr. Compean had diabetes mellitus Type 2, hypertension, congestive heart failure, obesity (Mr. Compean was 67" tall and weighed over 350 pounds at the time), sleep apnea, and hypercholesterolemia. (R. at 669-70). Dr. Biale noted "no apparent mood or thought disorder." (R. 668). At the time of the consultative exam, Mr. Compean was taking the following medications: Furosemide, Metoprolol, Metformin, Enalapril, Amitriptyline. (R. at 667). In his mental examination, Dr. Biale found Mr. Compean to be "alert and oriented times three". (R. at 669). Dr. Biale opined that Mr. Compean's recent and remote memory was "intact." Id. Dr. Biale further opined that Mr. Compean was able to concentrate and maintain attention span. Id.

On January 3, 2007, Dr. Virgilio Pilapil reviewed Mr. Compean's medical records to determine Mr. Compean's RFC. (R. at 671-78). Dr. Pilapil opined that Mr. Compean could occasionally lift 20 pounds, frequently lift ten pounds, stand and/or walk at least two hours in an eight-hour day, sit about six hours in an eight-hour day, push and/or pull unlimited, and occasionally climb ramps and stairs, balance, stoop, knell, crouch, and crawl, but could never climb ladders, ropes, or scaffolds, and needed to avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation, and work hazards such as machinery and heights. (R. 672-75). Dr. Pilapil stated:

[Mr. Compean] is 48 years of age and is morbidly obese. There is history of bleeding aneurysm, but neurologic exam is within normal limits, except positive Romberg. His is able to bear weight and ambulate unassisted with normal gait. The finger grasp and hand grip are unimpaired bilaterally. The motor strength in the lower extremities is (5/5) intact. There is full range of motion in back and extremities, with normal lumbar curvature, and no spasms or tenderness. There appears to be fluid retention, and claimant complains of shortness of breath on minor exertion. The cardiac exam revealed normal S1, S2, without murmurs or clicks. The lungs are clear, with no evidence of wheezing, rales, or rhonchi, and good airway entry. There was no clubbing or cyanosis. This individual can perform a sedentary level exertion. (R. 678). On March 22, 2007, Dr. Robert Patey reviewed Mr. Compean's medical records and agreed with Dr. Pilapil's RFC findings. (R. at 700-02). On May 22, 2007, Mr. Compean complained of tingling and ...


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