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Marion Underwood v. Michael J. Astrue

September 22, 2011

MARION UNDERWOOD , PLAINTIFF,
v.
MICHAEL J. ASTRUE , COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Marion Underwood ("Plaintiff") seeks judicial review of a final decision of Defendant, Michael J. Astrue, Commissioner of Social Security ("Commissioner"), denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income benefits ("SSI") under Title II of the Social Security Act. Before the Court is Plaintiff's motion for summary judgment. The parties have 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, Plaintiff's motion is granted in part and denied in part.

I. Legal Standard

In order to qualify for DIB, a claimant must demonstrate that he is disabled. An individual is considered to be disabled when he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An individual is under a disability if he is unable to do his previous work and cannot, considering his age, education, and work experience, partake in any gainful employment that exists in the national economy. Id. Gainful employment is defined as "the kind of work usually done for pay or profit, whether or not a profit is realized."

20 C.F.R. § 404.1572(b).

A claim of disability is determined under a five-step analysis. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. First, the SSA considers whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(4)(I). Second, the SSA examines if the physical or mental impairment is severe, medically determinable, and meets the durational requirement.

20 C.F.R. § 404.1520(4)(ii). Third, the SSA compares the impairment to a list of impairments that are considered conclusively disabling. 20 C.F.R. § 404.1520(4)(iii). If the impairment meets or equals one of the listed impairments, then the applicant is considered disabled; if the impairment does not meet or equal a listed impairment, then the evaluation proceeds to step four. Id. Fourth, the SSA assesses the applicant's ability to engage in past relevant work. 20 C.F.R. § 404.1520(4)(iv). In the final step, the SSA assesses whether the claimant can engage in other work in light of his RFC, age, education and work experience. 20 C.F.R. § 404.1520(4)(v).

Judicial review of the ALJ's decision is governed by 42 U.S.C. § 405(g), which provides that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). The court reviews the entire record, but does not displace the ALJ's judgment by reweighing the facts or by making independent credibility determinations. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). Instead, the court looks at whether the ALJ articulated an "accurate and logical bridge" from the evidence to her conclusions. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008). Thus, even if reasonable minds could differ whether the Plaintiff is disabled, courts will affirm a decision if the ALJ's decision has adequate support. Elder, 529 F.3d at 413 (citing Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007)).

II. Procedural History

Plaintiff filed an application for SSI on July 11, 2006 and for DIB on July 28, 2006, alleging that his disability began on January 4, 2005. The Social Security Administration ("SSA") denied his claim initially and upon reconsideration. Plaintiff then sought a hearing before an administrative law judge ("ALJ"), which took place on May 7, 2008. The ALJ denied Plaintiff's claim on November 4, 2008. Plaintiff then timely filed a request for review of the ALJ's decision. The Appeals Council denied review on August 6, 2010, making the ALJ's decision the Commissioner's final decision.

III. Factual Background

Plaintiff was a thirty-seven year old high school graduate when he filed for disability benefits. Prior to the onset of his alleged disability, Plaintiff worked for approximately fifteen years as a construction worker and an oil refinery laborer, as well as working in various temporary positions. Plaintiff claims that he was terminated from his last job when his primary care physician, Dr. Sanjay Pethkar, referred him to Provena Saint Joseph Medical Center in January, 2005. Plaintiff was diagnosed with uncontrolled diabetes mellitus, hypertension, hyperlipidemia, and obesity. (R. 256). He was briefly hospitalized and then released with various medications, including Novolin, an insulin medication to treat his diabetes.

A. Dr. Pethkar

The record contains evidence of numerous consultations Plaintiff had with Dr. Pethkar, ranging from February 13, 2006, when Dr. Pethkar diagnosed Plaintiff as suffering from diabetes, gastroenteritis, and hypertension, through October 23, 2007. Throughout that period, Dr. Pethkar noted seriously high blood glucose levels, which were over 230 mg. as of Plaintiff's initial visit. (R. 271). The record also shows that Dr. Pethkar repeatedly noted that Plaintiff failed to comply with the diabetic diet prescribed to him or to take his diabetes and hypertension medications. (R. 276, 282, 286, 287, 289, 291, 295, 298, 300, 304, 306). Dr. Pethkar counseled Plaintiff on numerous occasions on the appropriate diet for diabetes and explained that he would terminate his care if such noncompliance continued. (R. 278, 283, 286, 288, 290, 292, 294, 296, 301, 305, 307).

On June 5, 2006, Plaintiff complained of worsening vision, tingling and numbness of the limbs, and severe pain in the legs. (R. 276). Dr. Pethkar prescribed Clonidine, Coreg, Diovan, and Tarkia for Plaintiff's blood pressure, NovoLog as an insulin for his diabetes, and Lyrica and Vicodin for his pain from diabetic neuropathy. (R. 278). After Plaintiff missed a number of appointments, Dr. Pethkar noted on May 1, 2007 that Plaintiff was suffering from end-organ damage from uncontrolled diabetes and admitted him to Provena Saint Joseph Medical Center.

(R. 255, 302). Plaintiff was again diagnosed with diabetes, uncontrolled hyperglycemia, hypertension, and migraine headaches. (R. 255). He was started on IV fluids and insulin and was discharged with a prescription for Norco, a pain medication. (Id.).

Plaintiff's final consultation with Dr. Pethkar took place on October 23, 2007, when Plaintiff complained of tingling and numbness in both of his legs. (R. 306). Dr. Pethkar recommended that Plaintiff have a consultation with an endocrine specialist and a dietician.

(R. 307).

B. Pain Care America

While he was seeing Dr. Pethkar, Plaintiff also received treatment from Pain Care America. On June 21, 2006, Plaintiff reported constant and severe pain in his feet, as well as fatigue. A physical examination showed bilateral lung wheezing, decreased sensation and numbness in the first through fourth digits of both feet, and minimal bilateral knee and ankle jerk. (R. 215-16). Plaintiff was diagnosed with diabetic peripheral neuropathy and excessive daytime fatigue. (R. 216). He was prescribed Cymbalta in place of Lyrica and continued on the Vicodin earlier prescribed by Dr. Pethkar. In order to help control his various symptoms, Plaintiff was scheduled for a sleep consultation, an orthotics fitting, physical performance measurement consultation, and a physical therapy evaluation. (Id.). The latter test revealed moderate weakness in his right knee, and the prescription for Cymbalta was increased. On July 24, 2006, after three physical therapy sessions, Plaintiff reported that he was optimistic and had experienced significant improvement in the pain in his feet. (R. 218).

A second physical performance measurement on August 28, 2006 revealed decreased internal rotation in the left hip, decreased external rotation in right hip, and decreased extension and flexion in the right knee. (R. 240). Nonetheless, there was significant improvement in the extension and flexion of the right knee from the baseline evaluation. Plaintiff reported that the orthotics were helpful in keeping the pain in his feet stable. (R. 241). He further claimed that both Cymbalta and physical therapy were effective in reducing his pain but that he continued to experience shooting pains in his left lower extremity when the weather changed or when he was under stress. (R. 241).

As part of his treatment plan, Plaintiff also underwent a diagnostic sleep evaluation. Plaintiff had complained that he suffered from chronic fatigue throughout the day, awakened many times in the night, had difficulty returning to sleep, and suffered as well from mood swings. (R. 243). Dr. Wayne Kelly diagnosed Plaintiff with probable severe obstructive sleep apnea, secondary to chronic sleep deprivation and diabetic neuropathic pain. (R. 244). After a follow-up sleep evaluation on September 20, 2006, Dr. Kelly determined that Plaintiff, in fact, demonstrated severe sleep apnea and upper airway resistance syndrome with associated nocturnal hypoxemia. These conditions produced severe chronic sleep deprivation as well as an impairment in Plaintiff's memory and ...


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