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Mark Daniels v. Michael J. Astrue

August 4, 2011

MARK DANIELS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER

Plaintiff Mark Daniels seeks judicial review of the final decision of the Commissioner of the Social Security Administration (the "Commissioner") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act.*fn1 Plaintiff has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure seeking a judgment reversing or remanding the Commissioner's final decision. The Commissioner opposes this motion and requests that we affirm his final decision. For the reasons set forth below, plaintiff's motion for summary judgment is granted in part and denied in part [dkt. 18].

I. Procedural History

On April 20, 2007, plaintiff filed an application for DIB, alleging that he had been disabled since February 12, 2007.*fn2 That claim was denied on August 29, 2007.*fn3 Upon reconsideration, plaintiff's claim was again denied by notice dated February 25, 2008.*fn4 Thereafter, plaintiff filed a request for a hearing before an Administrative Law Judge ("ALJ").*fn5

On July 1, 2009, an administrative video hearing was held before ALJ Mary Ann Poulose, with the plaintiff appearing in Orland Park, Illinois and the ALJ located in Chicago, Illinois.*fn6

Following the hearing, the ALJ issued an unfavorable opinion dated July 27, 2009, finding that plaintiff was not disabled under the Social Security Act.*fn7 On August 11, 2009, plaintiff filed a request for review of the ALJ's determination with the Social Security Administration's Appeals Council.*fn8 On July 16, 2010, the Appeals Council denied the request for review, making the ALJ's July 27, 2009 decision the final administrative determination of the Commissioner.*fn9 On September 14, 2010, plaintiff filed this action.*fn10

II. Factual Background

Plaintiff was fifty years old at the time of the administrative hearing.*fn11 The highest level of education he attained was a General Equivalency Diploma.*fn12 Previous jobs included working in a warehouse, operating a forklift, assembling locomotive parts, and performing landscape work.*fn13 The record consists of medical documentation and the administration hearing transcript. We will summarize each.

A. Medical Documentation

The record contains medical records related to three conditions: injuries plaintiff suffered after falling off of a ladder, a lower back injury, and depression. There is also documentation from state agency reviewing doctors. We will discuss each category of evidence but only briefly summarize evidence related to the ladder accident, as it does not pertain to any of plaintiff's arguments before the Court.

1. Injuries as a result of ladder accident

On October 16, 2006, plaintiff sought medical care at Silver Cross Hospital and was first seen by Rafael R. Castro, M.D.*fn14 Dr. Castro's notes state that plaintiff fell a distance of approximately eight feet and landed on the left side of his head.*fn15 Plaintiff complained a severe headache, nausea, and vomiting.*fn16 Plaintiff also reported to Dr. Castro that he had episodes of confusion.*fn17 Dr. Castro's initial impressions included, "[p]ossible perforated left tympanum," and a possible skull fracture at the base of his skull.*fn18 Dr. Castro also noted a history of depression and colitis.*fn19 Plaintiff was admitted to the hospital.*fn20

Following admission into the hospital, plaintiff was examined by several doctors. These doctors noted hearing loss, a possible right temporal lobe contusion, and possible post-concussive sydrome.*fn21 Magnetic resonance imaging ("MRI") and Computerized axial tomography ("CAT scan") tests were completed.*fn22 Plaintiff was subsequently released from the hospital and underwent follow-up exams in October and December 2006. Ultimately, these follow-up exams revealed, "[e]ssentially stable brain appearance with no definite acute traumatic intracranial hemorrhage.."*fn23

2. Lower Back Injury

In February 2007, plaintiff sought treatment for an injury to his back that he suffered while lifting a heavy box.*fn24 Plaintiff complained of low back pain with burning and numbness.*fn25 It was noted on the medical records that plaintiff had undergone back surgery in 1988.*fn26 An MRI was completed and plaintiff was seen by Arti Chawla, M.D.*fn27 Dr. Chawla observed that plaintiff had difficulty bending over but was able to bend to approximately seventy-five degrees.*fn28 His gait was limited, but he was able to walk.*fn29 Dr. Chawla noted that the MRI revealed, "mild left-sided herniation of disc at the level of L4-L5 [with] foraminal narrowing."*fn30 Dr. Chawla wrote that plaintiff had severe pain over the left side of his back and radiation to the buttock.*fn31 Dr. Chawla stated that plaintiff should be off work and referred him to Joliet Pain Clinic.*fn32
On March 6, 2007, Aubrey Linder, PA-C performed a consultation at Joliet Pain Care Center.*fn33 The report states that plaintiff hurt his back in February 2007 and has had constant pain since that time.*fn34 Plaintiff rated that pain as a six out of ten.*fn35 Physician Assistant Linder determinated that plaintiff suffered from left L4-L5 disk herniation with left lower extremity radiculopathy.*fn36 She prescribed a short dose of steroids to help with the pain.*fn37 Plaintiff was also prescribed the muscle relaxer Zanaflex and instructed to stay off work.*fn38

On March 22, 2007, plaintiff followed up with Physician's Assistant Linder.*fn39 Plaintiff reported that he was 80% improved.*fn40 Physician's Assistant Linder recommended physical therapy to resolve the remaining pain.*fn41 Plaintiff was authorized to return to work as of April 2, 2007.*fn42

On June 4, 2007, plaintiff saw Joseph Hindo, M.D. Dr. Hindo noted that plaintiff had a herniated disc.*fn43 Dr. Hindo also stated that plaintiff, "has a lump in the upper quadrant."*fn44 Dr. Hindo referred plaintiff to neurological surgeon George DePhillips, M.D., S.C.*fn45

On July 2, 2007, Dr. DePhillips performed a neurosurgical consultation.*fn46 He wrote that plaintiff's MRI scan revealed "severe disc degeneration with disc space collapse and narrowing at the L5-S1 level."*fn47 Mild to moderate disc degeneration was also observed at the L3-L4 level and the L4-L5 level.*fn48 Dr. DePhillips noted that plaintiff had a "posterolateral non-instrumental fusion" completed in 1988.*fn49 Dr. DePhillips ordered x-rays to examine the fusion.*fn50 He also recommended a caudal epidural steroid injection.*fn51 Dr. DePhillips sought to follow-up with plaintiff in one week and recommended that he stay off work during that time.*fn52

Also on that date, Dr. DePhillips completed a "Disability Certificate" and indicated on that form that plaintiff was "totally incapacitated."*fn53 Dr. DePhillips stated that plaintiff should remain off work until further evaluation.*fn54 Subsequently, Dr. DePhillips noted that plaintiff was totally incapacitated seven additional times.*fn55

On September 26 and October 29, 2007, plaintiff followed up with Dr. DePhillips regarding his lower back pain.*fn56 On each occasion, Dr. DePhillips administered epidural steroid injections, but Dr. DePhillips noted that these injections provided only temporary relief.*fn57 Dr. DePhillips recommended physical therapy three times per week for three weeks and indicated that an independent medical evaluation was scheduled with Dr. John Shea.*fn58

Dr. Shea's notes state that an MRI from February 2007 showed subtle disc space herniation on the left at L4-L5 with foraminal narrowing.*fn59 Dr. Shea also noted decreased sensation and "give-way" weakness in the upper and lower extremities.*fn60 Dr. Shea believed that plaintiff could have suffered a back strain related to lifting the heavy box, as he had described.*fn61 However, Dr. Shea did not believe that surgery was necessary.*fn62 Dr. Shea did not give an opinion as to whether plaintiff could work.*fn63

In March 2009, Alexander J. Ghanayem examined plaintiff and also concluded that surgery was not the best option.*fn64 Dr. Ghanayem recommended that plaintiff undergo a pain program.*fn65 However, until the plaintiff improved, Dr. Ghanayem recommended that plaintiff stay off work.*fn66

On October 29, 2008 plaintiff again followed-up with Dr. DePhillips.*fn67 Dr. DePhillips wrote that he explained to plaintiff that he would not be comfortable proceeding with surgery because no other surgeon's agreed that it was appropriate.*fn68 He also cautioned plaintiff that surgery had only a fifty percent chance of improving his symptoms.*fn69 However, Dr. DePhillips stated that, in his opinion, surgery was a reasonable option.*fn70 Dr. DePhillips then stated, "[plaintiff] remains unemployable and disabled in my opinion."*fn71

3. Depression

Medical evidence of plaintiff's mental impairments consist of progress notes from psychiatrist Susan Crawford Sherman M.D.*fn72 The records reflect that plaintiff reported that he was spending most of his day in his bedroom, isolated from other people.*fn73 He stated that he preferred to be isolated because he feared mood changes.*fn74 He also reported to Dr. Sherman that he was angry and depressed.*fn75 According to Dr. Sherman, plaintiff suffered from major depressive disorder.*fn76 Dr. Sherman prescribed several medications throughout her treatment of plaintiff, including Prozac.*fn77

4. State Agency Reviewing Opinions

As part of the disability determination process, state agency reviewing doctors reviewed plaintiff's medical evidence and made assessments of plaintiff's limitations. On August 27, 2007, Richard Bilinsky, M.D. completed an "Illinois Request for Medical Advice" form.*fn78 Dr. Bilinsky determined that ...


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