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Hani S. Tadros v. Michael J. Astrue

July 22, 2011

HANI S. TADROS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Hani Tadros brings this action under 42 U.S.C. § 405(g), seeking to overturn the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits under Title II of the Social Security Act. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Plaintiff subsequently filed a "Motion to Reverse and Remand the Commissioner's Decision," which this Court construes as a motion for summary judgment seeking reversal of the Administrative Law Judge's decision. After careful review of the parties' briefs and the record, the Court now grants Plaintiff's motion and remands the matter solely for fuller consideration of evidence from Dr. Monif Matouk.

PROCEDURAL HISTORY

Plaintiff applied for disability insurance benefits on January 3, 2008, alleging that he became disabled beginning on June 8, 1998 due to headaches, carpal tunnel syndrome, and problems with his back, neck, and upper extremities. (R. 9, 12, 185). The Social Security Administration denied the application initially on April 11, 2008, and again on reconsideration on July 9, 2008. (R. 9, 98-102, 107-110). Pursuant to Plaintiff's timely request, Administrative Law Judge ("ALJ") Jose Anglada held an administrative hearing on August 10, 2009, where he heard testimony from Plaintiff, who appeared with counsel, and a vocational expert. (R. 9-18). On October 27, 2009, the ALJ found that Plaintiff is not disabled because he is capable of performing a significant number of jobs available in the national economy. (R. 9-18). The Appeals Council denied Plaintiff's request for review on September 3, 2010. (R. 1-3).

Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. Plaintiff advances three main grounds for reversal. He argues that the ALJ improperly discounted or disregarded medical evidence in making a finding on Plaintiff's residual functional capacity. He also asserts that the ALJ erred in determining that he could perform his past work where the vocational expert had testified otherwise and where such work was found not to be substantial gainful activity. Finally, Plaintiff contends that the ALJ incorrectly assessed the weight to be given to his chiropractor's opinion.

FACTUAL BACKGROUND

Plaintiff was born on July 15, 1957, and was 46 years old as of his date last insured ("DLI") of September 30, 2003. (R. 11, 16). He is a high school graduate and is able to communicate in English. (R. 16). His past relevant work experience was as a property manager. (Id.).

A. Plaintiff's Medical History

1. Neck and Back Injuries and Carpal Tunnel Syndrome

The record in this matter shows a history of complaints by Plaintiff of pain in his neck, back, and right arm, elbow, and hand dating back to the late 1990s and continuing through the DLI of September 30, 2003. According to documentation prepared for Plaintiff's disability insurance providers*fn1 by Michael Hausch, D.C., of Midwest Chiropractic Care Center, Plaintiff first presented himself for chiropractic treatment on December 3, 1999 complaining of "a history of neck pain with radiation into the right upper extremity as well as an intervertebral disc herniation at the C6/C7 level." (R. 389). Dr. Hausch's notes from that date indicate that Plaintiff complained of foot pain, lower neck pain radiating into the right shoulder, upper back pain, and headaches. (R. 407, 408). Dr. Hausch recommended a 12-week treatment plan followed by "supportive care," and referred Plaintiff for physical therapy. (R. 392, 409-410).

Plaintiff underwent MRIs of the brain and cervical spine on June 29, 2000 after complaining of "headaches," "right hand numbness," and a "[t]wo-year history of neck pain."

(R. 239-240). The brain MRI suggested some parenchymal (functional) volume loss and no evidence of lesions, which was consistent with a brain CT exam Plaintiff underwent in 1991. (R. 239). The spine MRI showed "[n]o evidence of cord abnormality," "extensive degenerative disc disease" at C3-C4, and "a herniated disc . . . with some flattening and dorsal displacement of the cord" at C4-C5. (R. 239). Plaintiff underwent another head CT on July 19, 2001 after complaining of a headache due to "head trauma." (R. 238). The results were "unremarkable" as there was "no evidence of hemorrhage, edema, mass effect, or cortical infarction" and no fluid collection or swelling. (R. 238). Dr. Hausch's daily notes indicate that he saw Plaintiff on nine occasions in 2000 and ten occasions in 2001, with a progress assessment of slow or none, except on three occasions where it was worse due to headaches. (R. 501-519).

Plaintiff was subsequently involved in three separate car accidents in February 2002, May 2002, and January 2003. (R. 333-336). Medical records indicate that Plaintiff presented himself for chiropractic treatment from Dr. Hausch on February 25, 2002, following a February 23, 2002 car accident, and again on May 20, 2002, following a May 18, 2002 car accident. (R. 303). In February 2002, Plaintiff complained of a constant dull ache, burning, numbness, and tingling in his neck and lower back radiating to his right arm and hand, which worsened with physical activity. (R. 344-346). MRIs of his right and left elbows in April 2002 showed some inflammation but otherwise indicated intact and unremarkable ligaments and tendons and no evidence of lesions. (R. 348, 349). Plaintiff continued to see Dr. Hausch approximately weekly until his May 2002 car accident, showing "no change" in symptoms and "slow" progress. (R. 351-356).

During a May 20, 2002 examination by Dr. Hausch two days after the second car accident, Plaintiff complained of constant tension, burning, numbness, tingling and stiffness in his neck radiating to his right hand and left elbow, which worsened when bending, lifting, or applying pressure to the elbow and improved when resting or applying ice. (R. 288, 303). On June 4, 2002, a physical therapist in Dr. Hausch's office recommended a treatment plan of stretching, range of motion, and "modalities" as needed three times per week for eight weeks, noting that Plaintiff "would benefit from being seen for McKenzie protocol,*fn2 posture training, stretching [and] cervical ROM." (R. 308). Plaintiff received chiropractic treatment approximately weekly with Dr. Hausch from May through mid-August 2002, and approximately monthly from September 2002 until his third car accident in January 2003, during which time Dr. Hausch again assessed his symptoms as showing "no change" and his progress as "slow." (R. 311-327). The treatment notes indicate that on several occasions in 2002 Dr. Hausch advised Plaintiff to consult an orthopedist (R. 311, 312, 313), and that Plaintiff told Dr. Hausch he underwent surgery for carpal tunnel syndrome of his right hand in June 2002. (R. 315, 316). There is no direct medical evidence in the record of any such hand surgery.

Plaintiff was involved in a third car accident on January 18, 2003. (R. 335-336). Records from Christ Hospital show that Plaintiff was seen by an emergency physician shortly after the accident complaining of "neck pain, L[eft] arm weakness (no paresthesias), bil[ateral] knee pain and T/L spinal pain." (R. 361). The hospital records indicate that he had a "normal" evaluation, "including CT neck/head/chest and body xrays," and that he showed no signs of distress or motor weakness. (R. 366, 367-370). Although additional tests were recommended, the hospital notes state that Plaintiff "refuse[d] tests and reports he will see his doctor" and "signed out AMA [against medical advice]." (R. 366). He left the hospital that same day with instructions to follow up with his primary doctor and to return if he experienced increased pain, numbness, or weakness, or if his condition worsened.

(R. 363-364). There is no documentation indicating that Plaintiff followed up with a medical doctor, however three days after the accident, Plaintiff saw Dr. Hausch complaining of neck, elbow, and hand pain. (R. 325). He resumed his approximately weekly appointments through February 2003, during which time he continued to show "slow" progress and no change in his symptoms. (R. 325-327, 337-343, 522-523).

Also in January and February 2003, Plaintiff underwent several MRIs. An MRI of his left elbow showed "[n]o significant intrinsic bone, joint, or soft tissue abnormalities," and an MRI of his right elbow showed a "[s]mall amount of fluid . . . in the elbow joint," an "intact" ulnar collateral ligament, and "normal" biceps, triceps, and brachialis tendons. (R. 330, 331). An MRI of his cervical spine showed a "small right paracentral herniation" at C4-C5; "[n]oncompressive protrusions" at C3-C4, C5-C6, and C6-C7; and a spinal cord of "normal caliber and signal intensity." (R. 332). Presumably at Plaintiff's request, Dr. Hausch informed American Trans Air, by letter dated March 31, 2003, that Plaintiff's "medical condition" would prevent him from using an airline ticket he purchased but that he would be "physically able to travel" upon completion of treatment approximately 60 days later. (R. 418). Plaintiff saw Dr. Hausch on two more occasions -- in May and July 2003 -- prior to his DLI of September 30, 2003. (R. 524-525).

After the DLI, Plaintiff continued to seek treatment for the same conditions. Dr. Hausch's daily notes indicate that he saw Plaintiff four times in 2004, four times in 2005, and four times in 2006, and that Plaintiff showed slow or no progress during that time. (R. 465-466, 486-489, 490-492, 526-529). An MRI in October 2006 showed "[e]xtensive degenerative changes throughout the cervical spine, worse at the level of C3-4 where there is moderate central canal stenosis and severe bilateral lateral recess narrowing." (R. 496).

In July 2007, Plaintiff was involved in yet another car accident, and during an evaluation by Dr. Hausch a couple days later he complained of headaches and neck pain radiating to the arms and hands. (R. 563-566). Plaintiff saw Dr. Hausch ten more times in 2007 and thirteen times in 2008, during which time Dr. Hausch generally assessed his condition as "unchanged" and/or "chronic" and his progress as "slow." (R. 612-634). An assessment from Dr. Hausch dated two months prior to the hearing in August 2009 stated that Plaintiff "has permanent problems including but not limited to cervical spine intervertebral disc injuries, and cervical radiculitis," and concluded that "his physical capabilities are therefore limited." (R. 644).

2. Podiatrist's Assessment

The record contains a letter to Plaintiff's attorney, dated a week prior to the administrative hearing in August 2009, from Monif M. Matouk, DPM, a podiatrist associated with Midwest Orthopaedic Consultants, stating that he has "known [Plaintiff] for many years and [has] treated him for a variety of musculoskeletal issues of the Lower Extremities." (R. 639-641). The record contains no medical records, tests, notes or supporting documentation of any kind from Dr. Matouk. In his letter, Dr. Matouk stated that Plaintiff "has a history of severe degenerative joint disease affecting his feet, ankles, knees, lumbar spine and neck." (R. 639). He stated that Plaintiff's "foot condition causes severe pain and edema with prolonged standing or ambulation, in most cases less than half an hour," and that Plaintiff's "ankle joint range of motion and subtalar joint range of motion are significantly decreased." (Id.). He further stated that Plaintiff suffers from "peripheral neuropathy" (nerve damage) that makes him "more prone to instability and therefore frequent injuries," including "several ankle sprains" for which he was treated. (Id.). Dr. Matouk also opined on various aspects of Plaintiff's condition that are unrelated to podiatry and for which he did not treat Plaintiff, including assertions concerning a brain aneurysm, arthritis of the cervical spine, nerve entrapment in the upper extremities, migraine headaches, anxiety and depression, post-traumatic stress disorder, and sleep apnea. (R. 640-641). He conceded that he "ha[s] not treated [Plaintiff] personally except for his Lower Extremity problems," but noted that he "had a chance to review [Plaintiff's] past medical history and discuss it with him in detail." (R. 641).

3. Migraines, Depression, and Vision Problems

In addition to the musculoskeletal problems described above, Plaintiff testified at the administrative hearing that he is impaired in his ability to work due to migraine headaches, depression, and vision problems. (R. 33, 47). As noted above, Plaintiff complained of migraines to his chiropractor, Dr. Hausch, and to his podiatrist, Dr. Matouk. However there is no documentation in the record that Plaintiff sought treatment for migraines from anyone other than Dr. Hausch. There also is no documentation in the record that Plaintiff was diagnosed with depression or sought treatment for depression or any other psychological or mental conditions from any health care provider, therapist, or counselor.

On November 29, 2001, Plaintiff was examined at the University of Chicago Hospitals for complaints of "mild right eye pain status post assault, which he sustained on 11/15/01." (R. 246). The report noted that Plaintiff previously was assaulted and suffered nasal fractures in the early 1990s, which were repaired surgically in 1990 and 1991. (Id.). A CT scan in November 2001 revealed a "focal defect" that was "small and minimally displaced," and "was most likely an old fracture" that "do[es] not require surgical intervention." (Id.) The clinic notes state that Plaintiff reported "no visual problems" and "no complaint of double vision or blurry vision and he states that he is back to his normal daily activities." (Id.) There is no other medical documentation in the record concerning eye or vision problems.

4. Agency Reviewing Physicians

On April 10, 2008, Dr. Francis Vincent completed an initial Request for Medical Advice for the Bureau of Disability Determination Services ("DDS"). (R. 534-36). Dr. Vincent concluded that there was insufficient evidence of any impairment or related functional limitations for the relevant time period. (R. 536). On July 8, 2008, Dr. Barry Free completed a Request for Medical Advice for DDS upon reconsideration. (R. 537-39). Dr. Free affirmed Dr. Vincent's determination that there was insufficient evidence of any impairment (R. 538-39).

B. Plaintiff's Testimony

At the hearing before the ALJ on August 10, 2009, Plaintiff testified that he last worked in June 2000 as a self-employed property manager for apartments owned by him and his father-in-law. (R. 29-30). Plaintiff later stated that he stopped working in 1998 due to migraine headaches, carpal tunnel syndrome, and vision problems. (R. 33, 35). He testified that between 1990 and 1998, he was able to work only intermittently doing part-time, ...


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