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Alvin Miller v. Michael J. Astrue

September 27, 2011


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


Alvin Miller ("Miller") seeks judicial review, pursuant to Social Security Act ("Act") §§405(g) and 1383(c),*fn1 of the final decision of Commissioner of Social Security Michael Astrue ("Commissioner") that denied Miller's claims for disability insurance benefits ("Benefits") and supplemental security income ("SSI") disability benefits. Miller has moved for summary judgment under Fed. R. Civ. P. ("Rule") 56 or alternatively for a remand to Commissioner, while Commissioner seeks affirmance of his decision. For the reasons stated here, the Rule 56 motion is denied and the case is remanded for further consideration.

Procedural Background*fn2 Miller filed an application for Benefits and SSI on October 29, 2007, asserting onset dates of April 12, 2002 for his SSI application and January 1, 2007 for his Benefits application (R. 185-90).*fn3 On January 9, 2008 Miller's application was initially denied, and it was again denied on reconsideration on May 22, 2008 (id. 91-103). After filing a timely request for hearing, on November 4, 2009 Miller appeared before ALJ Harmon for that purpose (id. 26).

Testifying at the November 4 hearing ("Hearing") were Miller, medical expert Dr. Bernard Stevens and vocational expert Dr. Richard Hamersma (R. 13). ALJ Harmon's February 11, 2010 decision concluded that Miller had become disabled on August 25, 2008, having been capable of performing light work before that date (id. 13, 17). Because Miller retained disability insurance coverage only through December 31, 2007, ALJ Harmon rejected Miller's Benefits application (id. 13).

On March 15, 2010 Miller filed a request with the Appeals Council seeking review of the unfavorable portion of the ALJ's decision pertaining to the January 1, 2007 to August 24, 2008 time period. (R. 6). After reviewing the ALJ's decision, the Appeals Council declined to reverse or remand on September 22, 2010 (id. 1-5). On December 20, 2010 Miller filed a complaint for judicial review.*fn4

Factual Background

Miller was born on August 26, 1953 (and was thus 56 years old at the time of the ALJ's decision), stands between 5 feet 7 inches and 5 feet 8 inches tall and weighs approximately 240 pounds (R. 36-38). After having completed just two years of high school, he later received his GED (id. 36). Miller's previous work experience includes employment as a storekeeper for United Airlines, which is ordinarily considered medium work but would be heavy, semiskilled work based on Miller's description of his job duties (id. 38, 76).

Miller has not performed any substantial gainful activity since January 1, 2007, but as stated earlier he retained disability insurance coverage through December 31, 2007 (R. 174-80, 183). Miller's medical complaints have included chronic pain and numbness (or paresthesia) in his extremities, hypertension, degenerative joint and disc disease, sciatica, chest pain, shortness of breath, heart palpitations, obesity, hyperlipidemia, coronary artery disease, cocaine-induced ischemia, arthritis, Type II diabetes mellitus, and frequent urination (M. Mem. 2-5).

On January 2, 2007 Miller was seen at Stroger Hospital ("Stroger") for complaints of chronic pain in both legs and hands that he had experienced on and off for four to five months (R. 305). There he was noted to have a history of hypertension, degenerative joint disease of the spine and sciatica, but he did not present with any leg weakness (id. 306). He was given refills of Hydrochlorothiazide, Lovastatin, Gnalafel, aspirin and Naproxene and discharged (id. 307).

On September 3, 2007 Miller was hospitalized overnight at Stroger for chest pain, shortness of breath and heart palpitations (R. 282). Doctors noted he was obese and hypertensive and had used cocaine and heroin two days before (id.). Miller's exercise tolerance was not quantitative due to bilateral leg numbness (id.). Findings from an EKG showed ST depression in lateral leads with elevation of cardiac enzymes (id. 278). Miller was treated with Nitrodrip, which decreased his blood pressure and chest pain (id.). He was discharged with a primary diagnosis of cocaine-induced ischemia and secondary diagnoses of hypertension, obesity, hyperlipidemia and substance abuse (id.). He was referred for substance abuse counseling and prescribed Enalapril, Lovastatin, aspirin and Hydrochlorothiazide (id. 278-79).

On October 26, 2007 Miller was seen at Stroger for a follow-up appointment. He then stated he "feels well" but said he was experiencing occasional leg pain rated at 6 on a 1 to 10 pain scale (R. 290). On November 14, 2007 Miller also underwent x-rays of his cervical and lumbar spine at Stroger that showed moderate multilevel degenerative disc disease in the cervical spine (most severe at the C4-C5, C5-C6 and C6-C7 vertebrae) and mild degenerative disc disease of the lumbar spine with vacuum phenomenon (id. 301-02).

Dr. Rochelle Hawkins performed a 35-minute consultative examination on December 7, 2007 (R. 271-77). During that examination Miller reported numbness and tingling in his hands that had lasted for some years (id. 271). Although Miller also complained of difficulty walking, standing and bending (id.), the examination showed Miller had full range of motion in his extremities, spine and all joints, walked with a normal gait and did not require any device to assist him in walking (id. 272-73). Straight leg raises were negative bilaterally (id.). Miller's muscle strength was rated at a 5 out of 5 in all limbs, and he had no difficulty lifting, holding or turning objects with either hand (id.). His gross and fine manipulation was normal in both hands (id.). Dr. Hawkins' diagnostic impressions were paresthesia in the upper and lower extremities, obesity, hypertension, high cholesterol and smoking (id.).

On December 26, 2007 Dr. Richard Bilinski, a non-examining state agency physician, reviewed the medical evidence of record and opined that Miller could lift 50 pounds occasionally and 25 pounds frequently, could stand or walk for six hours in an eight hour workday and could sit for six hours in an eight hour workday (R. 292-99). Dr. Bilinski noted that Miller has full range of motion in his spine and joints, walks with a normal gait and has no limitations on manipulating objects with his hands (id.).

Dr. M. S. Patil examined Miller on May 7, 2008 (R. 312-15). She noted Miller had used marijuana, cocaine and heroin for approximately 20 years and had last used heroin one week before the examination (id. 312). Miller complained of mild to moderate pain in his back and neck, mild numbness and tingling in his hands, and difficulty walking more than a few blocks, carrying more than a gallon of milk, tying his shoelaces, climbing stairs or standing for more than 30 minutes (id.). He denied any gait imbalance, and Dr. Patil observed normal gait (id. 312-13). Miller also denied any bladder dysfunction (id. 312). Miller's range of motion in his joints and spine was normal, there were no signs of muscle atrophy and grip strength was rated at 5 out of 5 (id. 314). Miller was able to perform various manipulations with his hands normally (including tying his shoelaces), and his motor strength was rated at 5 out of 5 in both upper and lower extremities (id.). Dr. Patil further observed that Miller was able to walk on his heels and toes, get on and off the examination table without assistance, squat and perform tandem walking (id. 315). Blood pressure was normal, and there was no evidence of cardiopulmonary distress, arrhythmia or tachycardia (id. 313-15). Dr. Patil's diagnostic impressions were mild to moderate osteoarthritis and Class II obesity (i.e. with a BMI of over 35) (id. 315).

Miller was diagnosed with Type II diabetes mellitus in May 2008 (R. 19, 324). One year later (in May 2009) Miller's diabetic status report revealed that his average blood glucose level, blood pressure, LDL cholesterol and triglycerides were within target ranges (id. 323). His HDL cholesterol was lower than the target (id.). On December 8, 2008 Miller had undergone an echocardiogram test that revealed normal systolic function and normal size and structure of the ventricles, aorta, mitral valve, atriums, pulmonic and tricuspid valve, ...

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