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Richard Brown v. Michael J. Astrue

January 30, 2012


The opinion of the court was delivered by: Magistrate Judge Nan R. Nolan


Plaintiff Richard Brown (Brown) appeals from an ALJ's decision denying his claim for disability insurance benefits (DIB) and supplemental security income (SSI) benefits. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and Brown has filed for summary judgment. Because the ALJ's decision is not supported by substantial evidence, the denial of benefits is reversed and this case is remanded for further proceedings consistent with this opinion.

I. Factual Background

Brown applied for DIB and SSI in January 2006, alleging he became totally disabled on October 15, 2000, when he was 32 years old, because of back disorders and pain. (R. 167-81). Brown's insured status for DIB purposes expired on March 31, 2006, which means Brown had to show that he was disabled on or before that date to be eligible for DIB.

Brown was born on October 14, 1968 and has a history of migraine headaches, obesity, and back pain resulting from an injury in 2000. Brown graduated high school and also completed specialized training for truck driving. (R. 180-81). ALJ David W. Thompson rendered a decision finding that Brown was not disabled because he was capable of performing his past relevant work.

(R. 43-54). The Appeals Council granted Brown's request for review and remanded the case to the ALJ. (R. 34-36). The ALJ held a second hearing on January 20, 2009 and heard testimony from Brown and vocational expert ("VE") Dennis W. Gustafson. (R. 592-635). On March 26, 2009, the ALJ found that Brown was capable of performing his past relevant work as an assembler, fueler, and health and safety instructor. The ALJ also found that if Brown were limited to sedentary work, he could perform a significant number of jobs in the national economy, including hand packager, hand assembler, and/or information clerk. (R. 31). During the second administrative appeals process, Brown's attorney amended his alleged onset date to March 14, 2005. (R. 589). The Appeals Council denied Brown's request for review on February 23, 2010. (R. 7-9). Brown now seeks judicial review of the ALJ's second decision, which is the final decision of the Commissioner.

A. Medical History

On December 6, 2002, Brown went to the emergency room because of lower back pain and increased numbness in the first three fingers of his right hand. (R. 362). Brown reported that the back pain radiated down his right leg. Id. Dr. Ramon Inciong, the emergency room physician, noted no history of herniated disc and diagnosed a lower back strain. Dr. Inciong treated Brown's back condition with Medrol Dosepak, Vicodin, muscle relaxants and Skelaxin. Id. Dr. Inciong also noted possible carpal tunnel syndrome of the right hand and recommended steroids and a wrist brace. Id. On January 2, 2003, Brown returned to the emergency room complaining of pain in his lower back and right testicle. (R. 361, 394). The doctor noted that Brown was in a minimal amount of stress. Id. Brown was given a 10 day prescription of Cipro and discharged. Id. In 2003, Brown successfully underwent a right and left carpal tunnel release. (R. 395-97).

On November 7, 2004, Brown reported to an emergency room complaining of back pain. (R. 391). An MRI of the lumbar spine was basically normal apart from minimal spondylotic change at the mid-lumbar level. (R. 392). The next day, Brown returned to the emergency room with his wife complaining of back pain of three days duration. (R. 302, 390). Brown also reported numbness and tingling down his left leg. Brown could "barely stand." Id. Brown was treated with Toradol, Decadron, Demerol, Vistaril, Medrol Dosepak, Flexeril and Vicodin. Id. Following treatment in the emergency room, Brown was seen by Dr. Inciong for an examination on November 10, 2004. (R. 301). Dr. Incoing diagnosed lower back strain which appeared to be musculoskeletal in nature. Dr. Incoing noted that there were no radicular signs or symptoms and prescribed Prednisone for 12 days. Id.

On January 10, 2005, Brown sought treatment at the emergency room at Illinois Valley Community Hospital for ear and back pain. (R. 272-78). Brown was able to bend, flex, extend, and side bend "without much difficulty." (R. 278). He had good reflexes and was neurovascularly intact. Id. Brown stated that he "really [did] not have much pain" but ran out of his Flexeril and only had two Vicodin pills left. (R. 276, 277). Brown admitted that he was really just looking for medication refills. (R. 276). The emergency room physician did not believe Brown had an ear infection. The physician gave Brown a prescription for Ultracet and Flexeril and also a Toradol shot which gave him some relief. (R. 278).

On January 12, 2005, Brown sought treatment for low back pain when he went to the emergency room at St. Margaret's Hospital. (R. 295-300, 388-89). Brown also reported having severe low back pain extending to his lower extremities and pain in his testicle which both started in January 2004. (R. 296). The emergency room physician noted that Brown was extremely obese. Brown's weight was in excess of 300 pounds. Id. Brown was given Darvocet to take every six hours as needed and recommended to follow-up with Dr. Incoing. (R. 300).

An MRI of Brown's lumbar spine on January 19, 2005 indicated small central disc herniation at L4/L5 which causes moderate mass effect on the anterior thecal sac, moderate narrowing of the left and severe narrowing of the right neural foramina, and disc bulge degenerative changes at multiple levels. (R. 250). On March 1, 2005, Dr. Patrick Tracy, a neurosurgeon, saw Brown for left sided hip and thigh pain and right testicular pain. (R. 251). Brown told Dr. Tracy that he had had 15 years of pain in the left hip and thigh with referred pain into the right testicle, which had been appreciably worse for the last six months. (R. 252). Brown reported that he had trouble sitting which he did for longer periods of time as a truck driver. Id. Dr. Tracy reviewed two MRIs of the lumbar spine. One MRI was from 2000 and the other MRI was done about a month before in 2005. Id. Dr. Tracy opined that both MRIs were "normal." Id. Dr. Tracy noted some degenerative changes at multiple levels and tiny disc bulges at several levels but there was no evidence of any disc herniation, spinal stenosis, spondylolisthesis, or neural compression. Id.

On physical examination, Dr. Tracy noted that Brown had full, nonpainful range of motion in his back and no tenderness or deformity. (R. 253). Dr. Tracy also found leg length discrepancy, right one inch shorter than left, positive straight leg raise maneuver at about 60 degrees on the left, cross straight leg raising causes some pain, pain with internal and external rotation of the hip and with flexion of the left hip, some tenderness with palpation of the left gluteal musculature, and some tenderness on palpation with multipennatus and erector spinae on the left side. Id. Dr. Tracy's assessment and plan noted the following: (1) chronic myofascial pain syndrome involving predominantly left low back and hip girdle; (2) Brown was not an appropriate candidate for surgical treatment given normal MRI; (3) leg length discrepancy may be a perpetuating factor and gave Brown a lift for his right shoe; (4) gave Brown back and lower extremity exercises for strengthening and flexibility; and (5) recommended a sleep study because sleep apnea may be a second perpetuating factor. Id.

On March 14, 2005, Brown presented at the emergency room at St. Margaret's Hospital complaining of lower back pain of one month's duration. (R. 290-93, 386-87). Dr. Incoing noted that Brown reported pain radiating down the left buttock area and down towards his knees and into the right testicle. (R. 293). Dr. Incoing wrote that Brown's complaints did not "make sense." Id. Dr. Incoing noted that he planned to review Brown's MRI and gave Brown a shot of Demerol, Vistaril, and Decadron shot. Id. Dr. Incoing planned to refer Brown to a different neurosurgeon at Loyola University for his back pain. (R. 387).

On March 18, 2005, Brown was seen by Dr. Incoing complaining of "a lot of pain in his lower back." (R. 289). Dr. Incoing noted that Brown's MRI showed a small disk herniation but commented that Brown was "quite symptomatic." Id. Dr. Incoing referred Brown to Dr. Alexander Ghanayem, a spine specialist at Loyola University Health System, to determine if he is a surgical candidate. If not, Dr. Incoing recommended an epidural steroid injection and gave him prescriptions for Relafen, Flexeril, and Vicodin. Id.

On April 8, 2005, Dr. Ghanayem examined Brown at the request of Dr. Incoing for back pain. (R. 254). Dr. Ghanayem indicated that Brown was taking Vicodin for pain. Id. Dr. Ghanayem noted normal posture and gait, tenderness over the SI joint on the left, provocative tests for SI joint pain positive on the left and negative on the right, range of motion limited secondary to back pain, and neurologically nonfocal. Id. Dr. Ghanayem also noted that the MRI of the lumbar spine revealed multi-level degenerative changes but no significant stenosis on the left side. Dr. Ghanayem's impression was multi-level lumbar spondylosis as well as SI joint dysfunction. Id. Dr. Ghanayem described Brown's condition as a "non-surgical problem." Id. Dr. Ghanayem recommended a fluoroscopic-guided SI joint injection, reentering physical therapy for trunk stabilization exercises, and a prescription for Lodine instead of a long-term narcotic. Id.

On May 6, 2005, Brown went to the Illinois Valley Community Hospital emergency room complaining of back pain at a level of 8 out of 10. (R. 260-65). The emergency room physician noted deep tendon reflexes difficult to elicit, tenderness to lower lumbar and left paraspinal area, and decreased active range of motion at the waist. (R. 261). Brown was given Toradol, Visaril, Nubain, and Valuim in the emergency room for pain relief but it was unclear whether Brown had any real significant pain relief. (R. 262). Brown returned home to try to get some relief and was given a referral to a pain clinic and prescription for Flexeril and Lodine. Id.

On May 9, 2005, Brown presented at the St. Margaret's Community Health Clinic complaining of "a lot of pain in the lower back that is persistent." (R. 288). Brown reported receiving several injections in the emergency room the day before which did not help much with his pain. Id. Brown described the pain as going into the right side of his groin into the testicle and on the left behind the buttocks down to the level of the knee. Id. Dr. Incoing noted that Brown's back "shows a lot of tenderness." Id. Dr. Incoing referred Brown to Dr. Deofil Orteza for an epidural steroid injection. Id.

Brown was seen by Dr. Orteza at the Bureau Valley Interventional Pain Management Clinic on June 1, 2005. (R. 318-20). Brown reported pain at a level of 5 out of 10 most of the time. (R. 318). Brown stated sitting aggravated his pain, standing and walking relieved the pain, and laying flat relieved the pain. Id. Dr. Orteza noted that an MRI showed small central disc herniation at L4/5 which caused moderate mass effect on the anterior thecal sac, moderate narrowing of the left foramina, severe narrowing of the right neural foramina, and disc bulge degenerative changes at multiple levels, L3/4, L4/5 and L5/S1. Id. Dr. Orteza's impression was left posterior SI joint pain, most likely secondary to osteoarthritis of the left SI joint. (R. 319). Dr. Orteza recommended a series of left SI joint injections. (R. 320). On June 3, 2005, Brown received a diagnostic/therapeutic SI joint injection for left low back pain. (R. 284-87). On June 17, 2005, Brown reported at least 50% improvement of his pain and received another left sacroiliac joint injection at St. Margaret's Hospital in Spring Valley, Illinois. (R. 281).

On January 25, 2006, Brown saw Dr. Inciong complaining of severe pain in his lower back. (R. 280). Dr. Inciong noted that he had seen Brown two months earlier, put him on a Medrol dose pack, Vicodin, and Flexeril, and gave him a steroid injection in the sacroiliac joint at that time. Id. Dr. Inciong observed that Brown's pain seemed to be worse. Dr. Incoing gave Brown a prescription for Oxycontin and Vicodin until Dr. Orteza could do an epidural steroid injection. Id.

On February 24, 2006, Brown returned to Dr. Incoing. (R. 279). Brown reported persistent pain in his lower back. Id. Dr. Incoing noted that Brown's lumbar radiculopathy/chronic low back pain was a chronic problem. Id. Dr. Incoing also stated that a previous round of epidural steroid injections had helped. Id. Dr. Incoing recommended another round of epidural steroid injections and refilled Brown's prescriptions for Oxycontin, Flexeril, and Vicodin. Id.

On February 13, 2006, Brown was seen again by Dr. Orteza at the pain clinic. (R. 309-17). Brown reported a one year history of low back pain, with radiation down to the posterior aspect of his left thigh and lately, also radiating into the right posterior thigh. (R. 309). Dr. Orteza recommended a series of lumbar epidural steroid injections . (R. 311). Brown received his first injection on February 13, 2006. (R. 314). Brown returned to the pain clinic for a follow-up visit two weeks later and reported a 20% to 30% improvement of his pain. (R. 306). Brown was treated with a second steroid injection on February 27, 2006. On March 13, 2006, Brown reported a 50% to 60% improvement of his pain. (R. 303). He reported being able to sit longer, increase his activity, and tolerate walking without much discomfort. Id. Because Brown still experienced significant low back pain, he received a third lumbar epidural steroid injection. (R. 303-06).

On March 27, 2006, Brown visited Dr. Inciong complaining of bad headaches that had been occurring over the past month. (R. 377). Dr. Inciong noted that the cause of the headaches was unclear. Id. Dr. Inciong stated that the headaches did not appear to be from the sinuses, there were no neurologic defects, blood pressure normal, no meningeal signs, and no fever or chills. Id. Dr. Inciong gave Brown samples of Relpax for his headaches. Id. With regard to Brown's low back pain, Dr. Inciong noted: "The patient is getting some relief. It is not a whole lot better though, but it is not getting any worse. He needs to complete the course of treatment with Dr. Orteza." Id.

On March 31, 2006, Dr. Sandra Bilinsky, a state agency physician, reviewed Brown's treatment records to assess his residual functional capacity. (R. 321-28). Dr. Bilinsky opined that Brown could occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand and/or walk about 6 hours in an 8-hour workday, and sit about 6 hours in an 8-hour workday. (R. 322). Dr. Bilinsky also concluded that Brown could occasionally climb stairs or ramps and occasionally balance, stoop, kneel, crouch, and crawl. (R. 323). Dr. Bilinsky found that Brown could never climb ladders, ropes, and scaffolds. Id. Dr. Bilinsky opined that Brown should avoid concentrated exposure to hazards like machinery and heights. (R. 325). In her assessment, Dr. Bilinsky commended that a lumbar epidural steroid injection had improved Brown's pain by 50-60 percent which had allowed him to sit longer and increase his activity. (R. 328). Dr. Bilinsky also noted that Brown had normal gait, straight leg raise test was negative bilaterally, no neurological abnormalities, no sensory or motor abnormalities, deep tendon reflexes normal, and able to do heel/toe movement. Id.

On April 18, 20, 22, and 24, 2006, Brown received chiropractic treatment for his low back pain. (R. 398-401). Brown again saw Dr. Inciong on May 31, 2006. (R. 350-51, 375-76). Brown reported that his back pain was "still quite severe" but his headaches were much improved since taking Relpax. (R. 350, 375). Brown stated he had completed a series of epidural steroid injections and got some back pain relief. Id. Brown also indicated that he had seen a chiropractor when he could afford it. Dr. Inciong noted that Brown reported temporary pain relief from the chiropractor visits but the pain relief did not seem to be long lasting. Dr. Inciong also noted that Dr. Ghanayem from Loyola had told Brown that he was not a surgical candidate. Id. Dr. Inciong refilled Brown's prescriptions for Oxycontin, Vicodin, Relafen, and Flexeril. (R. 350-56). Dr. Inciong noted that Brown had not shown any signs of abusing the Oxycontin. (R. 350, 375).

On November 1, 2006, Brown met with Dr. Philip Budzenski for a consultative examination. (R. 330-34). On physical examination, Dr. Budzenski noted that Brown ambulates with a wide-based gait appropriate for his body habitus, his gait was not unsteady, lurching, or unpredictable, and he did not require ambulatory aid. (R. 331). Dr. Budzenski further noted that Brown was able to get on and off the examination table without difficulty, was stable at station, and appeared comfortable in the seated and supine positions. Id. Dr. Budzenski's examination of Brown's cervical spine revealed no tenderness in the spinous processes or paravertebral muscle spasm, flexion normal to 50 degrees, extension limited to 40 degrees, lateral bend limited to 30 degrees, rotation preserved to 80 degrees bilaterally, and mild soft tissue tenderness to palpation of the left upper trapezius muscle. (R. 332). Examination of the dorsolumbar spine showed no apparent kyphosis or scholiosis, no paravertebral muscle spasm or tenderness to palpation of the spinous processes, forward flexion limited to 60 degrees, extension limited to 15 degrees, lateral bend normal to 25 degrees bilaterally, straight leg raising test normal to 90 degrees bilaterally in the seated position, and straight leg raising in the supine position negative to 45 degrees bilaterally. Id. Dr. Budzenski noted that Brown reported taking Oxycontin, Flexeril, an anti-inflammatory, and "the highest" dose of Vicodin eight times per day. (R. 330). Dr. Budzenski's impression was lumbago (lower back pain), allegation of narcotic habituation and overuse, hearing loss apparently improved with hearing aid, and morbid obesity. (R. 334). With regard to the work place, Dr. Budzenski concluded that Brown may need to be able to change from a seated to a standing position. Id. Dr. Budzenski stated that given the allegation of narcotic habituation, Brown should not operate automotive equipment, dangerous equipment, climb ladders, ropes, or scaffolding, or work around unprotected heights. Id. Otherwise, Dr. Budzenski found that Brown could perform medium work eight hours a day. Id.

State agency physician Michael Nenaber assessed Brown's physical residual functional capacity on November 29, 2006. (R. 115-16; 335-342). Dr. Nenaber found that Brown retained the residual functional capacity to occasionally lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds, stand and/or walk about 6 hours in an 8-hour workday, and sit about 6 hours in an 8-hour workday. (R. 336). Dr. Nenaber also found that Brown had no push/pull, postural, manipulative, visual, communicative, or environmental restrictions. (R. 336-39). Dr. Nenaber noted that Brown had a limited range of motion of his lumbar spine with flexion limited to 60 degrees and extension limited to 15 degrees but straight leg raising was normal, ambulation was without a device, and there was no significant muscle weakness or neurological concerns. (R. 342).

On December 8, 2006, Brown sought treatment at the emergency room at St. Margaret's Hospital for a migraine headache. (R. 378-84). Brown reported a severe migraine headache on the left side for the last 4 days. (R. 380). Brown was treated with Compazine ...

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