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Scott L. Richardson v. Michael J. Astrue

June 9, 2011


The opinion of the court was delivered by: Magistrate Judge Martin C. Ashman


Scott L. Richardson ("Plaintiff") seeks judicial review of a final decision of Defendant, Michael J. Astrue, Commissioner of Social Security ("Commissioner"), denying Plaintiff's application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act and for Supplemental Security Income ("SSI") under Title XVI. Before this Court is Plaintiff's Motion for Summary Judgment. The parties consented to have this Court conduct any and all proceedings in this case, including entry of final judgment. 28 U.S.C. § 636(e); N.D. Ill. R. 73.1(c). For the reasons discussed below, the Court finds that Plaintiff's motion is granted, and the case is remanded for further proceedings consistent with this opinion.

I. Procedural History

Plaintiff filed an application for DIB and SSI on December 8, 2005, claiming that his disability began on September 19, 2005. (R. 58.) The Social Security Administration ("SSA") denied Plaintiff's initial claim on July 18, 2006. (R. 63.) Plaintiff requested reconsideration but was again unsuccessful. He then sought a hearing before an Administrative Law Judge ("ALJ"), and on December 15, 2008, the ALJ issued a written decision finding that Plaintiff was not disabled. (R. 22.) Plaintiff filed a timely request for review of the ALJ's decision to the SSA's Appeals Council on December 18, 2008. (R. 11.) The Appeals Council denied review on November 25, 2009, and the ALJ's decision became the Commissioner's final decision. (R. 1.)

II. Background

Plaintiff was born on November 24, 1960 and was forty-five years old when he first filed for disability benefits. (R. 58.) He received a GED and performed two full-time jobs, one as a security officer and the other as a route driver, in the fifteen years prior to filing his disability claim. (R. 29-30.)

A. Medical History

1. Pre-Surgery

The medical issues involved in this case first exhibited themselves approximately six weeks after Plaintiff was involved in a car accident in 2000. (R. 403.) The record does not contain the type or the amount of medical attention Plaintiff received before April 2005, but he began seeking treatment from various physicians for pain around that date. (R. 241.) On April 29, 2005 Plaintiff consulted Dr. Parveen K. Varma, M.D. concerning pain in his left upper back at the third costal vertebral joint level. Dr. Varma administered an injection of cortisone, but during a follow-up examination on May 4, 2005, Plaintiff stated that he was in more pain that encompassed his left shoulder, left upper arm, and neck. (R. 240-41.) Dr. Varma then ordered an MRI of Plaintiff's neck that revealed that he suffered from degenerative disc disease with multilevel degeneration. (R. 239, 252.)

Dr. Varma recommended conservative, non-surgical remedies -- including blocking facet joints, epidural injections, and home exercises -- and Plaintiff received an injection of Lidocaine and Dexamethasone into his C6-C7 cervical vertebrae in June 2005. (R. 236-39.) After both injections, Plaintiff reported feeling no pain, and he was able to walk, communicate, and move his legs and arms without any problems. (R. 236, 238.) Unfortunately, the pain in his neck returned, albeit at a diminished intensity. (R. 236, 238.) Based on his relatively young age, Dr. Varma recommended that Plaintiff not receive any further injections and that he continue with his neck exercises. (R. 235.)

These were insufficient to remedy Plaintiff's pain, and on August 26, 2005 he consulted Dr. Ann R. Stroink, a neurosurgeon at Central Illinois Neurohealth Sciences in Bloomington, Illinois. (R. 233.) Dr. Stroink determined that Plaintiff was suffering from cervical spondylosis and signs of an early myelopathy with superimposed cervical radiculopathy. (R. 233.)

Dr. Stroink recommended a two-level anterior cervical fusion with partial vertebrechtomy at C5-C6 and C6-C7 along with allograft spinal plating. (R. 233.) A pre-surgery MRI of Plaintiff's neck showed that he suffered from mild to moderate right-sided disc herniation at C5-C6 and mild to moderate left-sided disc herniation at C6-C7 with capping osteophyte formation.

(R. 250.) Plaintiff underwent anterior cervical fusion surgery on September 19, 2005.

(R. 258-57.) In a report dated September 30, 2005, Dr. Stroink stated that Plaintiff was doing very well ten days after his surgery. (R. 232.) Plaintiff stated that his arm pain was resolved despite some discomfort radiating into his right arm and tenderness in the right bicipital tendon in his shoulder. (R. 232.)

2. Post-Surgery Medical History

Plaintiff underwent ten physical therapy treatments from October 5, 2005 to November 2, 2005 at Vital Care Physical Therapy Center in Joliet, Illinois ("Vital Care"). A report dated November 2, 2005 explained that Plaintiff's neck was improving, although specific movements continued to cause soreness and increased pain. (R. 317.) The progress report also stated that Plaintiff was responding well to myofascial release and that he would continue to benefit from two more weeks of physical therapy. (R. 317.) Plaintiff began experiencing headaches about five weeks after his surgery, but an additional MRI of his brain showed unremarkable results.

(R. 234.) He returned to physical therapy at Vital Care on November 7 with instructions from Dr. Stroink to increase modalities such as ultrasound and heat and cold packs to be placed on Plaintiff throughout his physical therapy. (R. 321.) After two sessions, however, he discontinued therapy with Vital Care altogether. (R. 320.)

a. Dr. Gary Golden

Dr. Stroink then referred Plaintiff to Action Physical Medicine & Rehabilitation ("Action"), located in Shorewood, Illinois. (R. 293.) On November 30, 2005, Dr. Gary W. Golden stated that Plaintiff claimed he suffered from temporal headaches four to five times a week and also had a sensitivity to light and sound. (R. 293.) Dr. Golden prescribed further physical therapy and medication consisting of Topamax and continued use of Ibuprofen.

(R. 294.) The record contains physical therapy reports indicating that Plaintiff continued to receive treatment for his pain at Action from November 30, 2005 until May 17, 2006.

(R. 265-96.) The reports show that Plaintiff's asserted pain level was at best a 3 out of 10 and at worst a 7 out ...

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