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Jerry Alan Reynolds v. Michael J. Astrue

August 15, 2011

JERRY ALAN REYNOLDS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT



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

MEMORANDUM OPINION AND ORDER

Michael T. Mason, United States Magistrate Judge:

Plaintiff, Jerry Alan Reynolds ("Reynolds" or "claimant"), has filed a motion for summary judgment [18] seeking judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner"). The Commissioner denied his claim for disability insurance benefits ("DIB") and supplemental security income ("SSI") under the Social Security Act, 42 U.S.C. §§ 416(i), 423(d) and 1382c(a)(3)(A). The Commissioner asks the Court to affirm the decision. We have jurisdiction to hear this matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons set forth below, Reynolds' motion for summary judgment is granted.

I. BACKGROUND

A. Procedural History

Reynolds first filed for DIB and SSI on November 18, 2004. (R. 156-163.) The Social Security Administration ("SSA") treated his claims concurrently and denied his applications on February 28, 2005. (R. 79-80, 89-93.) Reynolds then filed a timely request for reconsideration (R. 94-95), which was denied on July 26, 2005. (R. 81-82, 96-104.) Reynolds requested a hearing, but his request was dismissed as untimely.

(R. 77-78.) Reynolds sought review of that dismissal, which the Appeals Council denied on March 17, 2006. (R. 87-88.)

Reynolds again filed for DIB and SSI on August 7, 2006 alleging disability beginning March 18, 2006 due to degenerative back disease, depression and chronic lung disease. (R. 164-171.) His applications were denied initially on November 17, 2006 (R. 83-84, 105-109), and upon reconsideration on May 10, 2007. (R. 85-86, 110, 113-122.) Reynolds then filed a timely request for a hearing. (R. 123.) On May 19, 2009, Reynolds appeared with counsel at a hearing before Administrative Law Judge David Thompson ("ALJ" or "ALJ Thompson"). (R. 32-73.)

On July 15, 2009, ALJ Thompson issued a written decision denying Reynolds' request for benefits. (R. 12-31.) Reynolds filed a timely request for review of ALJ Thompson's decision. (R. 8.) The Appeals Council denied Reynolds' first request for review on November 9, 2009 (R. 5-7), and his second request for review based on additional information on February 1, 2010. (R. 1-4.) Thereafter, the ALJ's decision became the final decision of the Commissioner. See Zurawski v. Halter, 245 F.3d 881, 883 (7th Cir. 2001). This action followed.

B. Medical History

1. Records from Treating Physicians

Emergency room records from St. Mary's Hospital in Streator, Illinois reveal that Reynolds suffered a work injury on August 30, 2001 while working at Missal Farmers Grain Co. (R. 785.) His left foot was caught in a grain auger resulting in lacerations to the top of his foot, but no abnormalities. (R. 786-77)

For the most part, the medical records are silent after the foot injury until Reynolds saw Dr. John C. Purnell for severe back pain in July and August of 2004. (R. 501.) On July 28, 2004, Reynolds reported that he did not think he could return to work due to his back problems and his personal problems. (Id.) Because Darvocet was not working, Dr. Purnell prescribed Ultram every four hours for pain. (Id.) Reynolds returned on August 24, 2004, at which point Dr. Purnell offered to refer him to physical therapy. (Id.) Dr. Purnell's notes indicate that Reynolds did not want the referral and Reynolds was directed to continue taking Ultram and not to work for two weeks. (Id.) On August 31, 2004, Reynolds reported that he was "hurting a lot" in his back and neck. (Id.) Dr. Purnell indicated that Reynolds was sober, "unlike the other day." (Id.) Reynolds stated he did not want to return to work, although Dr. Purnell was of the opinion that he probably did not qualify for social security disability. (Id.) Reynolds was told to continue physical therapy and Ultram and not to work for another two weeks. (Id.)

On September 2, 2004, Reynolds was treated for breathing difficulties at the emergency room of St. Mary's. (R. 360.) Reynolds reported that he had been having breathing problems on and off for several months. (R. 361.) A chest x-ray showed mild hyperexpansion of the lungs which may represent air trapping from bronchiolitis or early changes of chronic pulmonary disease ("COPD"), "possibly work related." (R. 371-72, 462.) The records from his visit also reveal a history of "back problems." (R. 360.) Reynolds was discharged the next day, and ordered to return for more extensive respiratory testing and an evaluation of his chronic back pain. (R. 364.) He was also ordered not to return to work until he was seen by Dr. Susan Evers. (Id.)

The results of the follow-up testing were as follows. A pulmonary function test dated September 7, 2004 showed normal FEV1 and mildly reduced FVC ratio, and "mild obstructive defect with good response to bronchodilators with associated gas-trapping."

(R. 370.) This result was "very consistent with asthma." (Id.) A September 11, 2004 MRI of the cervical spine revealed "moderate degenerative disc disease seen at the C5-C6 level and mild moderate degenerative disc disease seen at the C4-C5 level." (R. 366.) There was diffuse posterior osteophyte formation at the C4-C5 level with associated diffuse disk bulging/protrusion causing flattening of the thecal sac anteriorly in contact with the anterior margin of the cervical cord. (Id.) At the C5-C6 level, there was diffuse disc protrusion/herniation with associated posterior osteophyte formation in contact with the anterior margin of the cervical cord. (Id.) Mild cord flattening could not be excluded. (Id.)

An MRI of the lumbar spine was conducted the same day and revealed diffuse disc bulging/protrusion at the L4-L5 and L5-S1 level. (R. 367.) The L5-S1 level also had superimposed left paracentral disc herniation extending inferior to the disc space. (Id.) "Very significant disc bulging" was seen at the L2-L3 and L3-L4 levels and degenerative disc disease was seen throughout the lumbar spine. (Id.)

Reynolds underwent physical therapy at St. Mary's throughout September 2004.

(R.438-450.) The records from the sessions reveal marginal back extension and mobility, and unsatisfactory back rotation and hamstring flexibility. (R. 445.)

Reynolds saw Dr. George E. DePhillips on September 23, 2004. (R.426.) According to Dr. DePhillips' notes, claimant suffered a work related injury in August 2001 and experienced neck and lower back pain ever since. (Id.) Dr. DePhillips reviewed a MRI scan of the cervical and lumbar spines (presumably the 9/11/04 MRI) and noted degenerative disc disease at C4-C5, C5-C6 and L5-S1. (Id.)

On September 27, 2004, Dr. Evers concluded that claimant needed at least six weeks off of work due to "temporary full disability." (R. 416.) According to Dr. Evers, Reynolds needed to sit at a desk in a clean environment and do office tasks not requiring exertion. (Id.) She was unsure whether he would ever get better. (Id.) Six weeks later, Reynolds' fiancee called St. Mary's asking for another note to his employer regarding his ability to work. (R. 414.) It is not clear from the progress notes whether Dr. Evers granted that request, although other records reveal that Reynolds never returned to work after the trip to the emergency room in September 2004. (R. 789.)

In early October 2004, Dr. DePhillips referred claimant to Dr. Gary L. Koehn at the Pain Management Center of the Community Hospital of Ottawa for evaluation and treatment of degenerative bulging cervical disc disease, including a trial of epidural steroid injections. (R. 422.) Reynolds reported pain in his "bilateral posterior neck, upper back, low cervical upper thoracic segments and paraspinouius region." (Id.) A shoulder gram showed some symmetric loss of range of motion. (R. 423.) Dr. Koehn noted a number of co-morbid medical problems that influenced treatment strategies, including pulmonary and psychiatric problems, and polysubstance abuse. (R. 422-24.) Dr. Koehn indicated that he would not pursue further evaluation or treatment until he learned more about these problems. (R. 424.)

Reynolds was treated for depression by Dr. Michael Glavin at Community Hospital of Ottawa in Illinois on November 2, 2004. (R. 332-33.) Claimant reported that he had been "depressed 4-5 years, and maybe longer." (R. 332.) He also reported mood swings, poor appetite, and a decrease in motivation, concentration and memory, but denied being suicidal. (Id.) Reynolds claimed that he had constant back pain and also that he had been told he cannot go back to work. (Id.) Dr. Glavin found Reynolds' "mood and affect depressed and flat" and noted psychomotor retardation. (R. 333.) Reynolds' scored a 37 on the Beck Depression Inventory, which is consistent with severe depression. (R. 680-82.) Dr. Glavin diagnosed Reynolds with major depression, but ruled out bipolar disorder. (R. 333.) He also assessed back pain and COPD. (Id.) Dr. Glavin's treatment plan included prescriptions for Cymbalta and Risperdal, and a return visit in five weeks. (Id.) In an outpatient counseling session with a mental health therapist on December 1, 2004, claimant continued to complain of insomnia, sadness, and severe anxiety, among other things. (R. 626.)

On December 6, 2004, Reynolds visited the Midwest Regional Pain Center for a comprehensive pain evaluation and treatment. (R. 378-82.) Reynolds reported that his neck and back pain started over 20 years ago. (R. 378.) Prolonged standing, walking and turning his head aggravated his pain. (Id.) The report indicates that sensory and motor function of the upper and lower extremities was normal, but he had a decreased range of motion in his neck. (Id.) Reynolds' pain was found to be consistent with lumbar and cervical disc disease. (R. 379.) Vicodin, steroid injections, and physical therapy were recommended. (R. 381.)

Reynolds saw Dr. Glavin again on December 30, 2004, a day after he was admitted to the "Choices" psychiatric unit of the Community Hospital of Ottawa due to increased depression and suicidal ideations. (R. 334.) Reynolds reported that he recently discovered his girlfriend with another man and got very upset. (Id.) Despite having been sober for seven months, he ended up drinking seven beers, after which he became more depressed. (Id.) He thought of driving his car and crashing it. (Id.) Reynolds reported a poor appetite (he had not eaten in three days), a lack of motivation, and mood swings. (Id.) At the time, he used marijuana daily. (Id.) Dr. Glavin again noted pyschomotor retardation and also noted that Reynolds suffered from withdrawal symptoms such as tremors. (Id.) He diagnosed major depression, as well as alcohol and marijuana abuse. (R. 335.) Reynolds was discharged to home on January 3, 2005. (R. 526.)

On the same day he was discharged from Choices,Reynolds was taken to the emergency room at St. Mary's for a drug overdose/suicide attempt. (R. 342.) The records reveal that his family witnessed him take a handful of vicadin and methadone with alcohol. (R. 343.) At the hospital claimant stated, "why don't you just let me die."

(R. 344). He initially denied previous psychological problems or care, but eventually admitted to his recent stay at Choices. (Id.)

Reynolds was transferred back to Choices on January 5, 2005. (R. 510.) He was treated with individual and group therapy. (R. 508.) He was discharged on January 7, 2005 and advised to stay sober. (R. 509.) He was prescribed prozac and valium, and was told to continue his medications for his medical conditions, including advair discs, albuterol, methadone and pantoprazole. (Id.) The records reveal that Reynolds continued to partake in individual therapy sessions at Choices and see Dr. Glavin for medication management following his discharge and through September of 2005. (R. 641-54.)

At a January 27, 2005 follow up appointment with Dr. Koehn regarding pain management, claimant continued to complain of back pain and a tingling down the bilateral upper extremities. (R. 420.) Claimant declined epidural steroid injections. (Id.)

On June 2, 2005, claimant saw rehabilitation consultant Richard T. Fisher for a vocational rehabilitation evaluation. (R. 770-72.) In addition to reviewing the medical records, Fisher questioned Reynolds about his functional capacities. (R. 770.) According to the evaluation, Reynolds indicated generally that he was able to function in the "light work category," with the following functional capacities: frequently lift ten pounds and occasionally lift twenty pounds; occasional walking, bending, squatting and reaching away from the body; sit and stand for 1/2 hour duration before change of position; and no climbing or lifting above the shoulders. (R. 770-71.) Given his physical limitations, COPD, depression and substance abuse, and a poor labor market in Streator, Illinois, Fisher concluded that it was not reasonable to think that Reynolds could find employment. (R. 772.)

On June 13, 2005, Dr. Evers completed a form regarding Reynolds' condition in response to a request from the Bureau of ...


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