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Brenda Russell v. Michael J. Astrue

February 24, 2012


The opinion of the court was delivered by: Rebecca R. PALLMEYERUnited States District Judge


Plaintiff Brenda Russell ("Russell") claims that she is disabled by a combination of impairments, including herniated lumbar discs with chronic low back pain, anemia, weight loss, major depressive disorder, and anxiety. She filed this action seeking review of the final decision of the Commissioner of the Social Security ("Commissioner") denying her application for a period of Disability Insurance Benefits ("DIB") and Supplemental Social Security Income ("SSI") under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 423, 1381. For the reasons explained herein, the court remands the matter to the Administrative Law Judge for further consideration.


Russell applied for DIB and SSI on April 20, 2006, claiming that she became disabled on October 6, 2005. (R. 169-173, 174-79.)*fn1 The applications contain no explanation of the specific disabilities alleged. (Id.) The Social Security Administration initially denied the applications on September 12, 2006, and again, upon reconsideration, on December 12, 2006. (R. 115-18, 125-27, 128-30.) Russell appealed the decision, and her claim proceeded to a hearing on October 8, 2008. (R. 23.) On February 19, 2009, the Administrative Law Judge ("ALJ") issued an opinion denying Russell's claim for benefits. (R. 9-22.) The ALJ determined that, while Russell is unable to perform any past relevant work, she is capable of performing unskilled, sedentary work, such as that of an assembler or a sorter, and that there are roughly 7,000 of those jobs within the vicinity of Russell's home. (R. 20-21.) Russell appealed the ALJ's decision, but the Appeals Council denied review on July 21, 2009. (R. 4, 1-3.) Thus, the ALJ's decision became the Commissioner's final decision. 20 C.F.R. § 404.981. Russell now seeks review of the Commissioner's decision in this court.


Russell was born on May 19, 1969, and was thirty-nine years old at the time of the hearing before the ALJ. (R. 29.) She is married and lives in a mobile home with her husband and three sons. (R. 30.) Russell is a high school graduate who has attended roughly eighteen months of college and holds a certificate of her abilities in word processing and secretarial work. (R. 34.) She has previously worked in check processing and data entry, and as a receptionist and manager of admissions at a doctor's office. (R. 36, 104-05.) Russell has not worked since October 2005. (R. 35.)

I. Medical History

Russell states that her disability began on October 6, 2005 (see, e.g., R. 174), and resulted primarily from three herniated discs in her lower back. (R. 211.) From the (often incomprehensible) medical records, the court has prepared the following description of Russell"s medical history of back pain and depression/anxiety disorder.

A. Back Pain

1. Dr. Raj Khurana*fn2

Dr. Raj Khurana, an internist at Saint Anthony Hospital, first saw Russell on November 10, 2005. (R. 305.) Russell complained that she was suffering from a "pinched nerve" in her back and assessed her pain at 10 on a scale of 1 to 10. (Id.) It is not clear whether Russell was already taking, or whether Dr. Khurana prescribed, "800 mg [i]buprofen" and "Aleve, 6 to 8 a day."*fn3 (Id.) When Russell saw Dr. Khurana again one week later, still rating her pain at 10, Dr. Khurana refilled her Vicodin*fn4 prescription, and suggested that she get an MRI, as well as an epidural. (R. 302.) (Id.) On November 28, 2005, Russell returned to Dr. Khurana, who apparently prescribed oxycodone and Valium; the notes also make reference to Vicodin and Percocet.*fn5 (R. 301.) Russell visited Dr. Khurana twice in December 2005. (R. 300.) He noted that Russell reported she was falling at home because her legs were "giving out." (Id.) The notes also show that he refilled Russell's prescriptions for Percocet and Valium. (Id.)

Plaintiff saw Dr. Khurana several times in 2006, but there was little improvement in her condition. As of January 16, 2006, Russell rated her back pain at 8, and Dr. Khurana again refilled her Valium prescription.*fn6 (R. 298.) He also prescribed a "transdermal system," presumably the fentanyl patches Russell reports having used.*fn7 (Id.;R. 60-61.) Dr. Khurana noted at that time that Russell "can't sit in place for 15 minutes or more" and that she was "using [a] cane." (R. 298.) Dr. Khurana's notes of a February 9, 2006 visit indicate either that she was receiving, or that he recommended, physical therapy three times per week and that Russell was still taking Percocet.

(R. 297.) On March 9, 2006, Dr. Khurana reported that Russell was "feeling better" but was "requesting a stronger medication for pain," and he renewed her fentanyl patch prescription. (R. 296.) Later that month, Russell returned, this time ranking her back pain at 7. (Id.) When Dr. Khurana saw Russell again in April 2006 (the record does not reveal the precise date(s) of this visit or visits), he evidently treated her primarily for psychological troubles, described below. (R. 295.)

Russell saw another doctor at Saint Anthony Hospital on July 11, 2006; she saw Dr. Khurana on August 14, 2006 and again on October 19, 2006. On each of these occasions, the doctor approved refilling her prescription for fentanyl patches. (R. 622, 624, 627.) Dr. Khurana approved other prescriptions in October as well, and referred her to Rush University Medical Center for back surgery. (Id.) Dr. Khurana's notes of Russell's next appointment, on November 2, 2006, are largely illegible, but he wrote that she was still having trouble sitting straight, that she was using a cane, and that she had difficulty walking and climbing stairs. (R. 623.)

Things continued in the same way throughout 2007. On January 25, 2007, Russell complained to Dr. Khurana that her back pain was at 10, and Dr. Khurana refilled her prescription for fentanyl patches and recommended over-the-counter Aleve. (R. 620.) Russell saw Dr. Khurana again on March 26, 2007, and complained of body aches, loss of appetite, and headaches.

(R. 621.) She saw him again twice in April 2007, and received more pain medication prescriptions.

(R. 618, 619.) On June 30, 2007, Russell's pain assessment was a 9, so Dr. Khurana refilled her prescriptions for fentanyl, trazodone, clonazepam, Seroquel, and Cymbalta once more.*fn8 (R. 616). On September 29, 2007, Russell returned, stating that she had fallen at home, and that her pain was at 10. (R. 617.) Dr. Khurana's progress notes for that date state that Russell had "2 patches of Fentonyl [sic] on" and was "walking [with a] cane." (Id.) Dr. Khurana also refilled Russell's prescriptions when he saw her on October 25, 2007, and again on November 29, 2007. (R. 615, 612.)

Russell's visits with Dr. Khurana appear to have been less frequent in 2008. Her visit on February 7, 2008, dealt primarily with her mental health issues, although she still complained of back pain and her inability to sit or stand for too long; it is not clear whether Dr. Khurana refilled any prescriptions at that time. (R. 652.) Three months passed before her next visit on May 29, 2008, where Russell complained of increased pain in her pelvis and lower back, radiating down her legs.

(R. 651.) Dr. Khurana refilled her prescriptions for pain medication and for the fentanyl patches. (Id.) Finally, on September 8, 2008, Dr. Khurana filled out an "Arthritis/Pain Residual Functional Capacity Questionnaire," presumably at Russell's request in connection with this claim for benefits.

(R. 688.) In the questionnaire, Dr. Khurana opined that, in an eight-hour day, Russell could sit for no more than one hour. (Id.) Dr. Khurana also stated that Russell could stand and walk for no more than one hour and that while doing so, she must use a cane or walker "for ability to walk/tolerate pain." (Id.) He further noted that Russell could never lift or carry anything, not even items weighing less than ten pounds. (Id.) Finally, Dr. Khurana estimated that, if she were employed, Russell would likely be absent from work more than four days per month. (Id.)

2. Dr. Mitchell Goldflies

In addition to her visits with Dr. Khurana, Russell saw Dr. Mitchell Goldflies, an orthopedic surgeon to whom Dr. Khurana referred her, beginning in November 2005. (R. 694.) As of that first meeting, Dr. Goldflies noted that Russell "complained of a five-week history of left-sided lumbar radiculopathy" and that she was currently on a Medrol Dose-Pak and Vicodin.*fn9 (Id.) Dr. Goldflies referred Russell to Dr. George Kuritza for an MRI. (R. 592.) The MRI revealed that Russell had multiple lumbar disc herniations and left-sided lumbar radiculopathy. (Id.; R. 692.) On November 16, 2005, Dr. Goldflies recommended physical therapy exercises,*fn10 epidural steroid injections, and a two-week break from work. (R. 692.) At her February 1, 2006 appointment, Russell told Dr. Goldflies that "she has improved with her epidural steroid injections," but she also requested other treatment options. Dr. Goldflies suggested VAX-D treatment, a vertebral decompression treatment intended to relieve lower back pain without surgery. (R. 690, 282 n. 1.) His progress notes from this day also state that Russell communicated a desire "to get disability." (R. 691.)

On April 12, 2006, Dr. Goldflies reported that Russell was feeling better as a result of the VAX-D program, but that she still suffered from decreased lumbar-spine range of motion in all planes and myofascial disorder, i.e., muscle pain. (R. 698.) On April 19, 2006, April 26, 2006, and May 3, 2006, Dr. Goldflies noted that Russell reported that the injection therapy helped control her pain, but did not alleviate it entirely. (R. 704, 706, 701.) At the April 26, 2006 appointment, Dr. Goldflies wrote a note on his prescription pad saying that Russell could return to work the following day as long as she had breaks as needed for pain. (R. 720.) On May 3, 2006, Dr. Goldflies again reported that Russell was "feeling better with the injection therapy," but that she still had "trigger points" which he injected again with local anesthetics, Lidocaine and Toradol. (R. 701.) He also gave Russell a prescription for Dolobid to take twice a day.*fn11 (Id.)

By the time of her appointment with Dr. Goldflies on October 4, 2006, Russell had completed her VAX-D treatment. (R. 711.) Dr. Goldflies noted that Russell was feeling better, but that she still had some lower back pain; he again injected these trigger points with lidocaine and Toradol, and offered further evaluation and treatment. (Id.) His notes from this appointment show that Russell asked "what is the next step" in her treatment. (R. 712.) On October 11, 2006, when Russell again complained of neck and back pain, Dr. Goldflies found she had cervical and lumbar paraspinous muscle tenderness, but that she also had good cervical lumbar spine range of motion.

(R. 709.) Again, Dr. Goldflies injected her trigger points with a combination of local anesthetics and prescribed Dolobid. (Id.) At what appears to be their last appointment, on October 25, 2006, Russell reported that she still had lower back pain, and Dr. Goldflies again injected her trigger points with local anesthetics. (R. 707.) She was offered follow-up evaluation in two weeks, but Russell never returned. (Id.)

3. Dr. Curtis Owen

Early on in her treatment, Dr. Goldflies referred Russell to Dr. Curtis Owen ("Dr. Owen"), at Midwest Medicorp, an affiliate chiropractic clinic of Saint Anthony Hospital.*fn12 (R. 288-89.) Dr. Owen saw Russell once, on November 17, 2005. (Id.) After he evaluated her, Dr. Owen prescribed, and Russell received, "chiropractic manipulative therapy to restore proper vertebral motion and reduce irritation in the vicinity of the injury," "[p]hysiotherapy in the form of interferential current . . . used to reduce muscle spasm and pain," and "[r]ehabilitative exercises . . . given to restore muscular strength and balance." (R. 289.) In a narrative report dated June 27, 2006, that was requested by and submitted to a claims adjudicator with the state agency for disability determinations, Dr. Owen declined to comment on Russell's prognosis, noting that he had only evaluated her on that one occasion. (Id.)

B. Anemia

Russell appears to have had ongoing struggles with iron deficiency and menorrhagia (unusually heavy menstrual bleeding). There are a number of lab reports from Quest Diagnostics in the record-requested by Dr. Khurana and performed in November 2005 and February 2006-noting Russell's hemoglobin and hematocrit levels, but presenting no written interpretation of this data. (R. 307-11.) On November 17, 2005, Dr. Khurana first recommended Russell take ferrous sulfate (iron supplements). (R. 301.) He made notes of Russell's anemia and menorrhagia throughout the course of his treatment of her. (See, e.g., R. 297, 299, 301, 302, 303.)

Russell also saw Dr. Robert Bonaminio regarding anemia and menorrhagia during her May 2006 hospitalization (described below) at Little Company of Mary Hospital for depression and anxiety. (R. 432.) Dr. Bonaminio described Russell's anemia as "severe" and gave her a transfusion of red blood cells. (Id.) While he reported an "[e]ssentially benign pelvic ultrasound," he did recommend Russell pursue one of several possible procedures to alleviate her blood loss.

(R. 432-33.) It appears that Russell followed up and, on June 26, 2006, Dr. Bonaminio performed a procedure he described as "dilation and curettage with thermal ablation." (R. 457.)

The physicians who reviewed Russell's records on behalf of the Bureau of Disability Determinations in August 2006, to assist in the initial adjudication of her claim, confirmed her anemia. Dr. Mahesh Shah noted that Russell had a history of anemia, and had reported being hospitalized for blood transfusions. (R. 360.) Dr. Liljedahl, a psychologist for the Bureau of Disability Determination, also reported that Russell said she had received two blood transfusions because of her anemia. (R. 351-52.) Likewise, Dr. Ashok Jilhewar ("Dr. Jilhewar"), the medical expert asked to testify by the ALJ, reviewed Russell's records and concluded that she had a history of anemia. (R. 84-86, 165.)

C. Psychological Issues

1. 2006 Hospitalization

Dr. Khurana's progress notes begin to reflect Russell's worsening psychological condition in the spring of 2006. As of late April 2006, she complained of anxiety, hyperventilation, and difficulty sleeping, and Dr. Khurana prescribed Xanax for these symptoms.*fn13 (R. 295.) On May 16, 2006, Russell went to the Saint Anthony Hospital emergency room, seeking immediate treatment for anxiety, depression, and thoughts of suicide. (R. 378.) The emergency room records also state that she complained of lower back pain, but that she was ambulating with a steady gait.
(Id.) The staff recorded Russell's statements that she wants to "crawl out of [her] skin," that she "cannot take care of [herself]," and that she "[hasn't] eaten in four days" and "can barely get out of bed." (R. 380.) Russell was diagnosed with depression and suicidal ideation. (R. 381.) The emergency room medical staff administered Toradol and Valium,*fn14 and then transferred Russell to ...

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