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Steven Boland v. Michael J. Astrue

November 10, 2011

STEVEN BOLAND, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Michael T. Mason, United States Magistrate Judge:

Steven Boland ("claimant" or "Boland") has brought a motion for summary judgment seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied claimant's request for Disability Insurance Benefits under the Social Security Act ("Act"), 42 U.S.C. §§ 416(i) and 423(d). The Commissioner filed a cross motion for summary judgment asking that we uphold the decision of the Administrative Law Judge ("ALJ"). We have jurisdiction to hear this matter pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, claimant's motion for summary judgment [17] is granted in part and denied in part, and the Commissioner's motion for summary judgment [30] is denied.

I. BACKGROUND

A. Procedural History

Boland filed an application for Social Security Disability Insurance Benefits ("DIB") on February 16, 2007. (R. 30.) His application was denied initially on June 13, 2007, and after reconsideration on October 5, 2007. (R. 42-44, 52-54.) Boland requested a hearing, which was held on April 15, 2009, before an ALJ. (R. 12-29.) The ALJ issued an unfavorable decision on May 14, 2009. (R. 32-41.) The Appeals Council denied claimant's request to review the ALJ's decision (R. 3-7), making the ALJ's decision the final decision of the Commissioner. Estok v. Apfel, 152 F.3d 636, 637 (7th Cir. 1998). Claimant then filed this timely appeal in the District Court, and the parties consented to this Court's jurisdiction pursuant to 28 U.S.C. § 636(c).

B. Medical Evidence

Claimant most recently worked as a ramp serviceman (also known as a baggage handler) for United Airlines. (R. 17.) As a part of that job, he unloaded cargo and luggage from planes when they arrived at their destination. (R. 17-18.) This required him to enter the cargo area of a plane and to throw the bags onto a conveyor belt that moved the bags from the plane to the tarmac. (R. 18.) On August 8, 2003, claimant was unloading a Boeing 757 aircraft. (Id.) As per his usual method of unloading a plane, he lifted "a very normal heavy bag" and threw it at the conveyor belt. (Id.) When he threw the bag, he "felt a crunch" and "froze." (Id.) After he "waited for about a minute," claimant resumed working and finished unloading the plane because "there's only a few bags left" and "[baggage handlers] do get hurt out there a lot." (Id.) After finishing his shift, claimant went home. (Id.) The next day he could not walk and did not go to work. (Id.) He has not worked since the date of this incident. (Id.)

Over the seven to nine days following the incident, claimant had difficulty standing and crawled to move around his home. (R. 186.) On August 28, 2003, he began physical therapy with Debbie Ebright, M.H.S., P.T.*fn1 (R. 186-87.) Ms. Ebright's initial notes on that date state that claimant "reports of a constant pain in his lower back which becomes sharp with sitting or bending too quickly. His symptoms are increased with sitting less than 5 minutes, standing, bending, driving, or climbing stairs.... He presently rates his symptoms as 6 on a 0-10 scale with 10 being severe." (R. 186.) Her notes also indicate that Boland was taking Vicodin and Naprosyn, and that his goal "is to get better." (Id.)

On September 8, 2003, claimant saw Barbara Heller, a doctor of osteopathy at the DuPage Medical Group in Wheaton, Illinois. (R. 175.) Dr. Heller diagnosed claimant by MRI with right L5 radiculitis on the basis of disc herniation at the L4-L5 vertebrae. (Id.) She also observed weakness and pain in his right buttock and leg. (Id.) She noted that claimant "is not working, because of his pain, which is significant," and wrote that he "will remain off work at this time." (Id.) Dr. Heller gave claimant a series of three epidural injections near his spine, on September 10, September 17, and September 24 of 2003. (R. 167-69.)

Claimant continued physical therapy at least until October 7, 2003. (R. 185.) On that date, Besty Boyd,*fn2 P.T., observed, that despite twelve physical therapy sessions and the epidural injections, Boland reported he had no significant relief of his symptoms, and that recently he had been experiencing an increased tingling throughout his right lower extremities. (R. 185.) Ms. Boyd wrote that "[t]he plan is to discharge him from PT while he is undergoing further medical management." (Id.)

In December 2003, claimant saw Eldin Karaikovic, M.D., Ph.D., a surgeon in the Department of Orthopaedic Surgery at Evanston Northwestern Healthcare. (R. 183-84.) In a letter dated December 9, 2003, Dr. Karaikovic noted Boland's reports of painful ambulation and sleep limited to two hours due to pain, reviewed a MRI of claimant's lumbar spine, assessed Boland with L4-L5 herniated nucleus pulposus, and recommended a "partial diskectomy at the L4-L5 level." (R. 184.) He noted that the recovery period from that surgery "usually involves ... a total of 4 to 8 weeks to return to work," and noted "[h]is ability to perform high performance physical work might be questionable." (Id.)

On December 22, 2003, Lawrence D. Lieber, M.D., of M&M Orthopedics, Ltd., saw Boland for an "independent medical evaluation" at the request of Gallagher Bassett (which apparently administers United Airlines' workers compensation program). (R. 253.) In a letter dated December 24, 2003, Dr. Lieber reported his conclusions from that examination as well as his review of certain records from Dr. Karaikovic, among others. (R. 253-56.) Dr. Lieber stated that he could "find no objective evidence or any functional impairment of the patient's lower back area that can be directly related to the injury sustained during his employment in August 2003." (Id.) Dr. Lieber acknowledged that claimant's lower back showed "significant abnormalities" consistent with a herniated disc, degenerative in nature, but felt that condition was pre-existent. (Id.) He concluded claimant could return to work with no restrictions associated with the August 2003 injury, but might require use of a lumbosacral corset or "possibly a functional capacity evaluation to determine his ability to return to a functional work environment." (Id.)

Apparently after the approval of his insurance provider, claimant scheduled a discectomy with Dr. Karaikovic for August 4, 2004. (See R. 179.) On July 16, 2004, Dr. Karaikovic (or someone on his behalf) signed a "Return to Work/School" form stating that Boland was under his care for the treatment of "discectomy" and "is going to unable to work for approximately 4-6 weeks after surgery [sic]." (R. 208.)

On July 14, 2004, claimant had a pre-operative MRI in anticipation of his August discectomy. (R. 196.) However, when Dr. Karaikovic reviewed the MRI on August 11, 2004, he believed that the new test indicated that the herniated disc had shrunk. (R. 181.) Based on this new information, Dr. Karaikovic changed his diagnosis of Boland's back issues from disc herniation to lumbar/lumbosacral disc degeneration, and suggested "postponing the surgery" because he did not believe the discectomy "would help him as much as [the doctor] wanted to." (Id.) With this new diagnosis, Dr. Karaikovic opined that the majority of claimant's pain "is mechanical in nature," which meant that he "most likely will need fusion at L4-5," assuming a discography identified the L4-5 i.v. disc as "a pain generator." (Id.) Claimant evidently indicated he was interested in having a discography and fusion surgery done, but had to contact his insurance company first for approval. (R. 181.)

On December 17, 2004, Boland had another appointment with Dr. Karaikovic, who noted that Boland "graded his pain 4 on a daily [basis, on a scale of 0 to 10].... [He] cannot sit for more than [a] short period of time. [He] spent his visit standing in the office and constantly tossing and turning." (R. 215.) The doctor noted that claimant takes four to six Vicodin pills daily. (Id.) Dr. Karaikovic would not refill the patient's narcotic prescription, noting in his records that "I informed him that I do not prescribe narcotic pain medication expect in a short postoperative period [sic]." (R. 216.) He switched claimant to muscle relaxants. (Id.)

Apparently at the requirement of United Airline's workers compensation insurance, Boland saw Dr. Alexander J. Ghanayem, M.D., the Chief of the Division of Spine Surgery at the Loyola University Health System in Chicago, for a second opinion.

(R. 224.) Based on his review of the results of a discogram, Dr. Ghanayem wrote a letter dated January 18, 2005, wherein he disagreed with Dr. Karaikovic's recommendation of decompression and fusion surgery. (Id.) Instead, Dr. Ghanayem recommended that Boland undergo a functional capacity evaluation and return to work within the strictures of that evaluation's findings. (Id.)

On February 8, 2005, a letter from a "nurse case manager working on behalf of United Airlines and Gallagher Bassett" asked Dr. Karaikovic to "Please give 12/17/04 work capabilities, please indicate if patient is able to return to work doing light duty alternate sitting standing work [sic]," and also asked "Have you released this patient to return to (please state date of release) Modified work? Full duty work?" (R. 226.) In response, Dr. Karaikovic wrote on February 10, 2005: "work status: as tolerated." (Id.) In March, the nurse case manager wrote Dr. Karaikovic asking him to"please clarify 'as tolerated'. Is patient able to work doing light duty alternate sitting standing work[?]" (R. 223.) It appears that Dr. Karaikovic's office did not respond to that request for clarification.

On March 9, 2005, Boland and Dr. Karaikovic discussed Dr. Ghanayem's opinion that fusion surgery was not indicated for Boland. (R. 178.) Dr. Karaikovic's notes indicate that Dr. Karaikovic disagreed with Dr. Ghanayem's conclusions. (Id.) Dr. Karaikovic wrote that Dr. Ghanayem did not see claimant's second MRI and apparently only reviewed the discogram report, and that discograms "are known to be very nonspecific and notorious inaccurate [sic]." (R. 178.) Dr. Karaikovic encouraged claimant to, among other things, request a second visit with Dr. Ghanayem, "who is a fine and very experience surgeon [sic]," or to seek a third doctor's opinion. (Id.) No evidence in the record indicates that Boland sought a third surgeon's opinion. Boland later reported to Dr. Karaikovic that his workers' compensation insurance refused to approve the decompression and fusion surgery. (R. 340.)*fn3

In April 2005, Boland underwent a functional capacity evaluation ("FCE"). (R. 270-80.) That evaluation was conducted by Susan Ashby, a physical therapist at a HealthSouth office in Carol Stream, Illinois. She concluded that Boland "is currently demonstrating the ability to perform in the 'sedentary' physical demand level as set forth in the material handling section of this report," and wrote that his "major limiting factor was subjective reports of bilateral lumbar paraspinal and right leg pain." (R. 270.) She found that Boland could not meet the requirement that ramp servicemen be able to lift seventy pounds. (Id.) She also noted that while "demonstrated consistent effort for validity tests and musculoskeletal screen," his "maximal effort for lifting portion is questionable due to minimal/no elevation in heart rate and blood pressure [sic]." (Id.)

About a year later, on April 17, 2006, Robert McGuffin, M.D., of United Airlines' Medical Department, completed a one-page "Assessment of Functional Capabilities"report regarding claimant. (R. 172.) He concluded that claimant had "long-term functional limitations," and wrote "No lifting more than ten (10) pounds; able to perform light-intensity work only." (Id.)

After claimant applied for DIB, the Illinois Bureau of Disability Determination Service ("DDS") sent him for an examination with Raj M. Sajid, M.D., a physician at Schaumburg Immediate Care. On May 29, 2007, Dr. Sajid examined Boland and completed a "Disability Evaluation Report." (R. 298-304.) In that report, Dr. Sajid wrote that claimant "has no anatomic abnormality of cervical, thoracic or lumbar spine. There is no paraspinal muscle spasm," and that as for claimant's gait, claimant can "ambulate without assistance, but with difficult due to pain [sic]." (R. 299.) Dr. Sajid found, among other things, that claimant's ranges of motion in his shoulder, elbow, hip, knee, and ankle were "within normal limits." (R. 300.) He also found that claimant's lumbar spine had flexion of 10 degrees, extension of 10 degrees, and left and right lateral bending of 10 degrees, and noted that claimant "was in severe pain upon performing this range of motion." (Id.) Finally, he wrote that claimant "walks 50 feet distance with the stress due to back pain [sic]," and beside the word "Impression" wrote "Severe low back pain." (Id.)

On June 8, 2007, medical consultant Richard Bilinsky, M.D., completed a physical residual functional capacity ("RFC") assessment report for Boland. (R. 305-12.) Dr. Bilinsky opined that Boland could frequently lift or carry 10 pounds, occasionally lift or carry 20 pounds, stand and walk with normal breaks for a total of at least two hours in an eight-hour workday, and sit with normal breaks for a total of about six hours in an eight-hour workday. (R. 306.) He also found that claimant's push and/or pull exertional limitations were unlimited, other than as noted for lift and carry. (Id.) As for postural limitations, Dr. Bilinsky indicated Boland was limited "occasionally" in climbing ramps/stairs and ladder/rope/scaffolds, and in balancing, stooping, kneeling, crouching, and crawling. (R. 307.) He also noted that Boland should "avoid concentrated exposure" to vibration and "hazards (machinery, heights, etc.)." (R. 309.)*fn4

On June 13, 2007, Dr. Karaikovic's office sent a facsimile to DDS stating that "Dr. Eldin Karaikovic has not seen this patient [Boland] since 12/17/04. Therefore, at this time Dr. Karaikovic is not approving disability for this p[atien]t. Please contact patient's ...


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