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Latonya Burnam v. Michael J. Astrue

March 5, 2012

LATONYA BURNAM, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Finnegan

MEMORANDUM OPINION AND ORDER

Plaintiff Latonya Burnam brings this action under 42 U.S.C. § 405(g), seeking to overturn the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Plaintiff subsequently filed a motion for summary judgment seeking reversal of the Administrative Law Judge's decision, and the Commissioner filed a motion for summary judgment seeking affirmance of the decision. After careful review of the parties' briefs and the record, the Court now denies Plaintiff's motion and affirms the Commissioner's decision.

PROCEDURAL HISTORY

Plaintiff applied for SSI on November 30, 2006, alleging that she became disabled beginning on November 1, 2006 due to herniated discs and severe headaches. (R. 11, 69). The Social Security Administration denied the application initially on March 2, 2007, and again on reconsideration on June 29, 2007. (R. 11). Pursuant to Plaintiff's timely request, Administrative Law Judge ("ALJ") Joel G. Fina held a hearing on July 6, 2009, where he heard testimony from Plaintiff, represented by counsel, and a vocational expert. (R. 25-62). On August 19, 2009, the ALJ found that Plaintiff is not disabled because she is capable of performing a significant number of jobs available in the regional economy. (R. 20-21). The Appeals Council denied Plaintiff's request for review on July 2, 2010. (R. 1-4).

Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. Plaintiff advances two main grounds for reversal. She first challenges the ALJ's residual functional capacity ("RFC") determination for three reasons:

(i) the ALJ failed to give sufficient consideration to the opinion of Plaintiff's treating physician or explain why he discounted it, (ii) the ALJ improperly reached an independent medical conclusion, and (iii) the ALJ did not give sufficient consideration to Plaintiff's back pain and headaches. Plaintiff next argues that the ALJ erred in assessing her credibility by making an improper conclusory determination and by discounting her testimony about the inability to work more than 20 hours per week.

FACTUAL BACKGROUND

Plaintiff was born on November 6, 1970, and was 36 years old when she applied for SSI on November 30, 2006. (R. 19). She has a high school education and completed about a year and a half of college, and is able to communicate in English. (19, 30). Her past relevant work experience includes jobs as a telemarketer and sales associate. (Id.).

A. Plaintiff's Medical History

1. Back Pain, Headaches, and Heart Palpitations

The record in this matter shows a history of complaints of back pain, headaches, and heart palpitations, among other ailments. The medical documentation begins in late July 2006 when Plaintiff underwent an MRI of her lumbar spine due to lower back pain. (R. 356-357). The radiology exam report from Advocate South Suburban Hospital indicated "a very large central and left paracentral disc herniation noted at L5-S1" which "is seen compressing the L5 nerve roots" and "desiccation of the L4-5 disc space with evidence of an annular tear." (R. 357). Less than a week later, in early August 2006, Plaintiff presented at the emergency room complaining of lower back pain. (R. 478). She reported "a 4-year history of lower back pain ever since sustaining a fall down stairs." (Id.). While the pain had been "localized to the middle of the lower back" until recently, Plaintiff complained of new pain over the prior six weeks that she described as "deep, sharp, and aching, that starts in the left lower back, radiates down the left buttock and posterolateral thigh to about the level of the knee only." (Id.). An EMG of the left lower extremity and left mid and lower paraspinal muscles produced "mildly abnormal" results. (R. 478-479). Dr. Rana Mafee found evidence of "a mild, acute left lower lumbosacral radiculopathy," but noted that a "specific level cannot be isolated given the minimal findings in the left lower limb." (R. 339-340). A month later, in early September 2006, Plaintiff saw Dr. Reem Bitar at the Advocate South Suburban Hospital pain clinic, where she "refused to have [a] lumbar epidural steroid injection" and was advised to use over-the-counter pain medication or request a prescription if she wished. (R. 336).

In October 2006, Plaintiff consulted with Dr. James Stone, a neurosurgeon at the University of Illinois at Chicago. (R. 218-219). Dr. Stone noted that Plaintiff complains of "low back pain and left leg sciatica, bothered by prolonged sitting and standing and walking." (R. 219). Upon physical examination, he noted that Plaintiff "walks OK, up on heels and toes well" and that she has tenderness in the left sacral notch and mild tenderness in her low back. (Id.). In a follow-up visit, Dr. Stone reviewed the July 2006 MRI films, confirmed the impression of a "very large" disc herniation at L5-S1, and recommended a "microlumbar diskectomy." (R. 218). Dr. Stone discussed the surgery and its potential complications with Plaintiff and her daughter, including reviewing the MRI films and answering their questions. (Id.). That same month, Plaintiff underwent a physical therapy evaluation and attended several physical therapy sessions. (R. 295-296, 301, 305, 307-308).

Plaintiff did not undergo surgery for her herniated disc and the record contains no further documentation of physical therapy. However, the record shows that she visited the emergency room on multiple occasions over the next two years complaining of back pain, headaches, and other ailments. For example, in late October 2006, she complained of headaches, nasal congestion, cough, and chest pain. (R. 290, 292). A chest x-ray was unremarkable. (R. 353-354). In November 2006, she complained of right ankle pain and chest congestion, for which an ankle x-ray showed "[n]o injury" and she was instructed to take Tylenol and follow up with her primary care physician, Dr. Olalekan Sowade. (R. 285, 287, 333, 353). In December 2006, she complained of back pain aggravated by a fall. (R. 281, 283, 331-332). She was given Vicoprofen and discharged in good condition. (R. 283, 332). The complaints continued in 2007. In January, an x-ray of Plaintiff's lumbar spine showed "mild degenerative disc disease" at L5-S1. (R. 351). In February 2007, she complained of nausea, vomiting, and headaches, for which she was given Toradol for the pain and Zofran for the nausea. (R. 273, 278, 329-330). After a six month break, in August 2007 she returned complaining of headaches and nausea, for which she was prescribed Amoxil and Tylenol #3. (R. 268-271, 328-329). The doctor's notes indicate Plaintiff "stated that usually her headache is relieved with just Tylenol" and she "does not take anything more, because other medication does not work on her." (R. 328).

In September 2007, Plaintiff underwent another MRI of her lumbar spine, which found "noted dehydration of the disc at the level of L4-L5 and L5-S1." (R. 349). Specifically, the MRI report noted "local posterior central protrusion of the disc" at L4-L5 "with some effacement of the anterior part of the dural sac and mild degree of spinal stenosis, and "posterior ventrolateral extrusion of the disc" at L5-S1 "with significant effacement of the anterior central and lateral portion of the thecal sac on the left with moderate spinal stenosis." (R. 350) The report advised clinical correlation to determine the significance of the MRI findings. (Id.). Ten days later, Plaintiff again presented at the emergency room complaining of shoulder and neck pain after a car backed into a parked car in which she was a passenger. (R. 262, 327). She was diagnosed with a mild cervical sprain, for which she refused pain medication. (R. 328).

Shortly thereafter, in October 2007, Plaintiff returned to the emergency room complaining of headaches, nausea, back pain, and heart palpitations. (R. 257). She refused Toradol due to concerns about possible side effects and wanted to wait for the results of a head CT before making a decision on pain shots. (R. 259). The CT scan was normal. (R. 349). That same day, she was seen by Dr. Orlando Landrum at the pain clinic.

(R. 326). Dr. Landrum noted that Plaintiff "states that she wishes to defer surgery" and was "not looking to have any interventional therapies performed and [was] primarily seeking medicinal control of her pain." (Id.). He noted that "[a]fter much discussion, [Plaintiff] defers neuropathic pain medication at this time." (Id.). He observed that Plaintiff "mentions multiple . . . Opiate medications she has been treated with in the past with some good effect by other providers," including morphine, Endocet, and Norco. (Id.). He referred Plaintiff for a urine toxicology test, a stress test, and assessment of her cardiac issues by Dr. Sowade before considering narcotic medications. (R. 326-327). The subsequent stress test revealed "moderately limited functional capacity." (R. 343).

In November 2007, Plaintiff returned to the pain clinic due to headaches and neck and back pain. (R. 323). Her physical exam showed no change from previous visits. (Id.). Dr. Landrum prescribed oral morphine and suggested Plaintiff speak with a spine surgeon for a second opinion, try neuropathic pain medication for her back pain, and again consider epidural steroid injections. (R. 324). However, he noted that "[a]t this time, [Plaintiff] wishes to defer any interventional techniques." (Id.). In December 2007, Plaintiff continued to complain of heart palpitations, including an emergency room visit which produced a normal EEG and chest x-ray. (R. 248-255, 321, 347-348). An MRI scan of her cervical spine showed mild spinal stenosis at C6-C7. (R. 346-347).

Plaintiff's emergency room visits extended throughout 2008. For example, over three visits in March and April 2008, she complained of headaches, neck and ankle pain, and sinus congestion. (R. 243-244, 315-316, 318-320). Also during this time period, she was hit on the head with a piece of falling ice (R. 319) and subsequently hit her head at work (R. 410), although she exhibited "no new neurological deficits" and "[n]o neck tenderness or stiffness." (R. 316-317). A brain CT scan after the ice incident was "unremarkable." (R. 345). She continued to take only Tylenol for her pain, claiming that even "minimal dosages" of Percocet caused "episodes of palpitations." (R. 319, 320).

Also in April 2008, Plaintiff returned to Dr. Landrum at the pain clinic. He noted that Plaintiff was "previously assessed and advised in regards to using medications other than short -acting medication for her pain in conjunction with neuropathic meds and potentially a trial of interventional treatment in regards to her pain," however Plaintiff "has refused all aforementioned attempts in trials in the past and requested to be placed on Tylenol #3."

(R. 315). Dr. Landrum discussed with Plaintiff the "utility of trial of cervical epidural steroid injection for neck and head pain; however, [Plaintiff] is adverse [sic] to such treatment." (R. 315-316). He further noted that Plaintiff was unwilling to try medication stronger than what she has used in the past, therefore he placed her on Tylenol #3 as she requested and referred her to her primary care physician since "her current medications really do not require management by an interventional pain physician." (R. 315).

In May 2008, Plaintiff again complained of heart palpitations, headache, and nausea. (R. 402). A head CT scan showed "[n]o acute changes," a chest x-ray was normal, and a cervical spine x-ray showed "degenerative changes with large anterior spurs" at C6-C7, but otherwise was "unremarkable." (R. 344, 345). Plaintiff visited the Advocate South Suburban Hospital emergency room twice in October 2008 complaining of chest pain, dizziness, and nausea (R. 364-365, 372-373), but refused any pain medication, stating she "is very sensitive to all pain meds." (R. 373). That same month, she also presented at the emergency rooms of two additional hospitals complaining of, among other things, chest pain which was determined to be confined to the chest wall and unrelated to the heart or lungs, and for which she refused medication. (R. 425, 453). A chest x-ray was normal.

(R. 466). She also refused medication for the dizziness of which she complained. (R. 449).

2. Agency Reviewing Physicians

On February 22, 2007, Dr. M.S. Patil completed an Internal Medicine Consultative Examination for the Illinois Bureau of Disability Determination Services ("DDS"). (R. 222-225). Dr. Patil noted Plaintiff's complaints of headaches over the prior ten year period, beginning when she bumped her head on a cabinet and, around the same time, hit her head when her daughter ran into her. (R. 222). Dr. Patil stated that Plaintiff's headaches consist of "mild pain in the left temporal area, which worsens if she is under stress or does a lot of thinking." (Id.). She gets "some relief" by turning down the volume on the television or shutting the blinds, and takes hydrocodone "[i]f she cannot bear the pain." (Id.). In addition to headaches, Dr. Patil noted that Plaintiff has a herniated disc and has had "mild to moderate pain in the low back area" since falling on some steps in 2002. (Id.). Plaintiff stated that "she has mild difficulty and pain walking more than half an hour, standing for more than 10-15 minutes or lifting more than 10 lbs." (Id.). She "is able to do chores around the house like sweeping, mopping, laundry and dishwashing." (R. 222-223). Finally, Dr. Patil noted that Plaintiff was diagnosed with heart palpitations 8 years prior and states that she has palpitations "at least 2-3 times a week lasting a few minutes." (R. 223). A stress test in 2003 indicated she had suffered a "mild heart attack." (Id.). At the time of Dr. Patil's examination, Plaintiff was not taking any medications other than hydrocodone as needed. (Id.).

Dr. Patil's physical examination showed normal or unremarkable results in all areas, including finding Plaintiff's lumbar spine flexion, extension, and lateral extension to be within normal ranges. (R. 223-224). Dr. Patil's diagnostic impressions in the areas of Plaintiff's prior medical complaints - chronic headaches, chronic low back pain, and history of heart palpitations - were normal or unremarkable, with the exception of his observation that a July 2006 MRI of Plaintiff's lumbar spine "showed a very large L5-S1 disc herniation" for which "surgery has been recommended." (R. 225). He noted that Plaintiff has not undergone surgery and there "has been no regular follow up care." (Id.).

On February 28, 2007, Dr. David Bitzer completed a Physical Residual Functional Capacity Assessment for the DDS. (R. 226-233). Dr. Bitzer stated that the objective medical evidence shows a history of disc herniation at L5-S1 and severe headaches that are treated with hydrocodone when needed. Upon examination, he noted as follows: "flexion of the L-spine to 50 degrees, extension 20 degrees, lateral flexion 20 degrees, SLR bilaterally at 25 degrees" and "[n]o paravertebral tenderness or spasm, BLE strength 5/5, sensation intact, gait normal unassisted." (R. 233). He concluded that Plaintiff is able to occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand and/or walk with normal breaks for at least 6 hours in an 8-hour workday, sit with normal breaks for at least 6 hours in an 8-hour workday, and push and/or pull with no limitations other than those indicated for lifting and carrying. (R. 227). He further noted that Plaintiff has "occasional postural limitations due to disc herniation L5-S1." (R. 228). Finally, he concluded that Plaintiff has no manipulative, visual, communicative, or environmental limitations. (R. 229-230).

On June 26, 2007, Dr. William Conroy completed a Request for Medical Advice for the DDS upon reconsideration. (R. 234-236). Dr. Conroy noted that Plaintiff "indicates she is in more pain" but "does not have any additional impairments" and was not seen for follow-up treatment despite her statement to the contrary. (R. 236). Dr. Conroy stated that he reviewed the initial medical and RFC assessments and deemed them "appropriate." (R. 236). He affirmed Dr. Bitzer's RFC determination as written. (R. 235, 236).

B. Plaintiff's Testimony

At the hearing before the ALJ on July 6, 2009, Plaintiff testified that she works part-time as a sales associate at a Sears Parts and Repair Center for approximately five hours per day, three to four days per week, for a total of twenty hours weekly or less. (R. 31). She stated that she had not held full-time employment since 1994 or 1995, although she could not recall with certainty whether that employment was full or part-time. (Id.). Plaintiff testified that she is unable to work more hours because "[i]t's too painful" due to "severe headaches every day," "severe anemia," a herniated disc in her back, "some kind of nerve damage" in her leg, stenosis, heart arrhythmia, and "severe allergies." (R. 31-32).

In terms of her daily activities, Plaintiff testified that she is "[n]ot really" capable of doing chores around the house, so she does not wash dishes, do laundry, or do yard work or gardening, and her daughter or mother usually cooks and shops for her, although she will occasionally use the microwave herself and take an occasional trip to the store with her daughter. (R. 35-36). She tries to keep her home clean due to her allergies, including "sometimes" vacuuming even though "it's painful" and "the doctor said don't vacuum." (R. 34-35). Plaintiff testified that after working a five-hour shift, she is "in so much pain" and is too tired to eat or do more than lie down and pray. (R. 49). When she is not working, her days consist of occasional television viewing, reading, and resting. (R. 36-37). She attends church, but does not "really" socialize otherwise. (R. 43-44). Plaintiff stated that she ...


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