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Michael Brothers v. Michael J. Astrue Commissioner of Social Security

June 13, 2011


The opinion of the court was delivered by: Judge Joan B. Gottschall


Michael Brothers ("Brothers") seeks judicial review of a decision by the Commissioner of Social Security ("Commissioner") in which the Commissioner granted Brothers only partial relief on his claim to disability insurance benefits ("DIB") and Supplemental Social Security ("SSI"). Brothers applied for these benefits on December 11, 2001, claiming that he had been disabled since November 17, 2001. That application was denied on March 7, 2002, as the Commissioner found Brothers capable of performing light work. Brothers filed a subsequent application on January 30, 2003, which was denied April 7, 2003 for the same reason. Brothers requested reconsideration, which was denied, and then sought a hearing before an Administrative Law Judge ("ALJ"). The ALJ held a hearing and, on June 21, 2005, found that Brothers was entitled to disability benefits as of October 22, 2004. Brothers appealed the partially favorable decision, but the Appeals Council denied his request for review on October 24, 2006. Brothers filed a complaint in this court on December 22, 2006 and has moved for summary judgment. For the reasons stated below, the case is remanded.


Brothers was born on December 15, 1951. He has a high school education, and completed a two-year computer science program in 1992. In 2003, he completed one year of a ministry preparation program at the Chicagoland Christian Center. He has not, however, worked in the computer science field nor has he completed his training to become a fully ordained minister. His past employment history includes custodial work, asbestos abatement work, and equipment distribution-all jobs that are classified as unskilled occupations which require medium to heavy exertion. (R. 300.)

Brothers claims that he suffers from degenerative joint disease in his knees, obesity, diabetes mellitus, acute lower back and neck pain, bilateral pain in his hands, and impaired use of his hands. He argues that his obesity (Brothers is 5'7" and has consistently weighed between 265-80 pounds) exacerbates these conditions, and that he has suffered from these conditions to a degree that he has been incapable of work since November 17, 2001. There appears to be no debate that Brothers' last substantial gainful activity occurred in 2001.

A.Medical History

On February 7, 2000, Brothers was treated at the Cook County Hospital Emergency Room for pain and edema in his left knee and lower back pain. (R. 197-98.) The hospital prescribed ibuprofen and referred Brothers to the orthopedic department. (R. 198.) On June 25, 2000, he returned with the same complaints. (R. 196.) On June 28, 2000, Brothers underwent evaluation for his knees; x--rays showed degenerative joint disease ("DJD") in the left knee and findings "suggestive of early DJD" for his right knee. (R. 192.) He also complained at that time that his fingers "popped" out of joint in his left hand. (R. 190.) A doctor at the hospital provided Brothers with a letter stating that his evaluation was ongoing and that he was not to climb stairs at work until his evaluation was complete, although he could return to work. (R. 193.)

Brothers was next treated following a car accident on October 21, 2001 for pain in his left shoulder and in his neck. (R. 176.) He was diagnosed with neck pain and strain and received a prescription for Motrin and Toradol. (R. 179-80.) Brothers refused to sign his discharge papers, and his treatment notes indicate that he "refused to go home," although he was "laughing and ambulatory." (R. 178-80.)

Following Brothers' emergency treatment, he received follow-up care from Dr. Earl Thornton. Dr. Thornton saw Brothers regularly from the end of October until mid-December of that year. (R. 211.) On October 29, 2001 Dr. Thornton wrote a letter noting that Brothers was "incapacitated and unable to work on the dates of October 21, 2001 through October 28, 2001" due to acute lower lumbar strain, and that Brothers would return to work on October 29th. (R. 200.) At that time, Dr. Thornton noted that Brothers' prognosis was "good." Dr. Thornton treated Brothers using therapeutic exercises, diathermy, hot packs, and ibuprofen. (R. 211.) Dr. Thornton also issued a medical report which listed Brothers' prognosis as "guarded" and listed the total dates of disability as lasting from October 21, 2001 until November 11, 2001. Id.

On January 29, 2002, Dr. M.S. Patil performed a consultative examination on Brothers pursuant to a Disability Determination Services request. (R. 201.) At the time, Brothers weighed 278 pounds; he complained of swelling in the knees; mild to moderate pain in his neck, lower back, shoulders, and knees; and stiffness and popping in his joints. Id. Brothers claimed that his car accident had exacerbated his back and neck pain. Id. Dr. Patil found Brothers' sight to be 20/30 in each eye without correction. (R. 202.) Brothers' appearance, thinking, and judgment appeared normal; he also had reflexes that were "brisk and equal bilaterally throughout," and his "co-ordination was intact." Id. Dr. Patil reported that Brothers had no swelling in his extremities or musculoskeletal system, nor was there any swelling in Brothers' joints. (R. 203.) The fine and gross manipulative movements of Brothers' hands and fingers were within normal limits, and he was able to make good grips and oppose his thumbs. (R. 203.) Brothers' flexion and extension were somewhat limited in his knees (130 on a scale from 0-150 for each), but although Dr. Patil noted that arthritis and obesity are co-morbid conditions, he did not make any finding relating to arthritis. Id. He did note, however, that the results of a past workup were not available for review.

A month later, on February 28, 2002, Dr. Harry Bergmann performed a Residual Physical Functional Capacity Assessment. (R. 163.) Dr. Bergmann opined that Brothers should be able to lift and carry twenty pounds occasionally and ten pounds frequently; stand and walk for about six hours, and sit for about six hours in an eight-hour workday; occasionally climb, kneel, crouch, and crawl; and frequently balance and stoop. (R. 164-65.) The report also mentions that no manipulative limitations or visual limitations had been established. (R. 166.)

On March 10, 2003, Brothers underwent another consultative examination with internist Dr. Margaret Stronska. (R. 171.) At that time, Brothers weighed 274 pounds. He again described pain in his knees, and while he did not use a cane, he did claim to use ibuprofen to treat his pain. Id. Brothers also disclosed that he had been diagnosed with diabetes six years prior, but that he had "run out" of insulin and had no insurance. Id. Dr. Stronska found that Brothers had 20/20 uncorrected vision in both eyes, and had full flexion and extension as well as full strength in his shoulders, elbows, wrists, hips, and ankles. (R. 173.) Consistent with Dr. Patil's report, Dr. Stronska noted that Brothers' had somewhat limited flexion and extension in his knees (130 on a scale from 0-150 for each), and a "4" out of "5" in terms of knee strength. Id. During the examination, Dr. Stronska observed that Brothers could undress, rise from his chair, climb on the examination table, and walk fifty feet without any assistance. (R 172.)

On March 28, 2003, Dr. Vidya Madala completed a second Physical Residual Functional Capacity Assessment. (R. 155-62.) This assessment was made from a review of Dr. Stronska's report. (R. 162.) Dr. Madala found that Brothers had 20/20 vision in both eyes, and confirmed that Brothers had only 130 degrees of flexion in his knees. Dr. Madala opined that Brothers could lift and carry twenty pounds occasionally and ten pounds frequently; stand, walk, or sit for about six hours in an eight-hour workday; and that Brothers had no limitations on his pushing and pulling. (R. 156.) The doctor also found that Brothers could not climb ropes, scaffolds or ladders and that he could not crouch, although he could occasionally climb ramps or stairs and stoop, kneel, or crawl.

(R. 157.) Dr. Madala further stated that Brothers should avoid concentrated exposure to extremes of cold and heat, humidity, and hazards such as heights. (R. 159.) On July 24, 2003, another state agency physician, Dr. Frank B. Norbury, reviewed the record and affirmed this assessment. (R. 162.)

On August 14, 2003, Dr. Thornton filled out a Medical Source Statement regarding Brothers' ability to do physical work-related activities. (R. 152.) Dr. Thornton stated that Brothers suffered from sever lumbar pain after standing, walking, or prolonged sitting, and that Brothers could not push, pull, lift, or carry more than ten pounds due to his back pain.

(R. 153.) Dr. Thornton found that Brothers could only stand or walk for less than two hours, and could sit for less than six hours, in each eight-hour workday. (R. 152-53.) Dr. Thornton further opined that Brothers should never climb, balance, crouch, or crawl, and should only occasionally kneel. (R. 153.) Consistent with Dr. Madala's opinion, Dr. Thornton also found that Brothers should have only limited exposure to temperature extremes, vibration, humidity, or hazards such as machinery or heights. (R. 154.)

No additional medical findings are in the record until more than a year later, in November of 2004. On the third of that month, Brothers visited the Stroger Hospital ER with intermittent chest pain. (R. 217.) Brothers was told to return for a follow-up visit, and to take one aspirin daily. (R. 218.) He received a referral for an exercise treadmill test. Id.

After Brothers' hearing before the ALJ, he received an additional evaluation by Dr. James Elmes. (R. 222.) The April 22, 2005, records show that Brothers complained of bilateral knee pain since 1988; low back and neck pain related to the car accident; and bilateral hand pain for the past two to three years. Id. Dr. Elmes found that Brothers did not have a noticeable limp, nor did Brothers complain of pain while walking; he could also walk fifty feet easily inside the office. (R. 224-25.) Brothers had fairly normal fine motor coordination and could write "okay," but was tired after two to three lines. Id. Dr. Elmes measured Brothers' grip strength between forty-five and sixty pounds on the right and between forty and fifty pounds on the left; his upper extremity strength was measured to be five out of five, while his lower extremity strength was four out of five due to bilateral knee pain. (R. 225.) Dr. Elmes found no measurable atrophy in his arms or legs. Id. Brothers had a normal range of motion in his joints, save for his lumbo-sacral spine, cervical spine, and knees. (R 229.) Dr. Elmes identified sixteen clinical problems, including early arthritis in Brothers' left knee; non-specific bilateral pain in Brothers' knees, ankles, hands, and wrists; diabetes mellitus; exogenous obesity; and decreased vision. (R. 226-27.)

Based on his findings, Dr. Elmes found that Brothers could lift or carry ten pounds, push or pull a maximum of fifteen pounds, and stand or walk for at least two hours in an eight-hour work day. (R. 227.) Brothers could occasionally climb ramps and stairs, but he could not climb ladders, ropes, or scaffolds; nor was he to knee, crouch, or crawl. Id. Dr. Elmes further noted that Brothers had limited fine manipulation abilities, and that his vision was limited. (R. 228.) Finally, consistent with Dr. Thornton's findings, Dr. Elmes stated that Brothers should not be exposed to temperature extremes, vibration, humidity, or hazards. (R. 233.)

B.Brothers' Testimony

At his March 17, 2005 hearing before the ALJ, Brothers testified that he had been taking medication for his diabetes, and that he been out of medication for about six months due to financial reasons. (R. 252-53.) In the past, he had obtained his diabetes medications from the county hospital. Id. Brothers disclosed that he presently lived with his wife, whom he married in December of 2003. (R. 263-64.) He stated that based on his condition, he was limited to occasional volunteer work involving his church. (R. 268.) At the time, he was hoping to complete his schooling to become an ordained minister, but his studies were on hold due to financial restrictions. (R. 269.) He also stated that he had a valid driver's license without any restrictions, but had occasional trouble with blurry vision due to his diabetes. (R. 270-71, 296.)

Brothers then reviewed his employment history with the ALJ, and stated that he was kept from being able to work because of troubles with his knees. (R. 278.) The ALJ asked Brothers why he did not pursue help with his knee pain, and Brothers responded that he got "frustrated and aggravated" trying to obtain help. (R. 279.) Brothers claimed to manage his pain through taking five to six Tylenol a day. (R. 279, 297.)When asked if he had any mental or emotional problems, Brothers also stated that he was "extremely depressed" although he did not indicate that he had spoken with a doctor about that issue. (R. 283.)

In describing his typical day, Brothers noted that he could dress himself and perform light housework including taking out the garbage, washing the dishes, sweeping, and going to the store, although he did not do any repair work. (R. 285-86, 296-98.) He also attended church on Sundays and bible classes on Tuesdays and Wednesdays. (R. 287.)

The ALJ asked Brothers to evaluate his strength and stamina. Brothers estimated that he could lift about twenty-five to thirty pounds with both hands, and that he could not stand still for any significant amount of time due to pain in his knees. (R. 288-89.) Nor could he sit still for long periods, although he could walk "a couple of blocks" at a time. (R. 289.) He testified that he presently weighed about 280 pounds and that weight had been pretty stable. (R. 290.)

During examination by his counsel, Brothers disclosed that he'd had hand surgery in the past because he'd had a finger slammed into a door; as a result, he stated that his hands would shake when he had to lift heavy objects. (R. 293.) He reiterated that he has stiff joints, and that to relieve himself of pain in his neck, back, and shoulders he would lie on the floor or a hard surface. (R. 295.) Finally, Brothers testified that he was in the process of being ...

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