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Joseph Lee Mcdonald v. Michael J. Astrue

March 12, 2012


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


Michael T. Mason, United States Magistrate Judge:

Claimant Joseph L. McDonald ("McDonald" or "claimant") brings this motion for summary judgment seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied McDonald's claim for a period of disability and disability insurance benefits under Sections 216(i) and 223(d) of the Social Security Act, 42 U.S.C. §§ 416(i) and 423(d). This Court has 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 is granted in part and denied in part.


A. Procedural History

Claimant alleges that he has been disabled since mid-April 2005 due to disorders of the back. (R. 47, 50.) The parties and the ALJ do not dispute that McDonald filed an application for a period of disability and disability insurance on August 28, 2006. (E.g., R. 12, 50.)*fn1 That application was initially denied on November 16, 2006, and again on March 15, 2007. (R. 62-66, 68-71.) On May 23, 2007, McDonald filed his request for a hearing. (R. 72.) On December 15, 2008, he, along with a vocational expert, testified before Administrative Law Judge ("ALJ") John Dodson. (R. 20-41.) Although informed of the right to representation, McDonald chose to appear and testify without the assistance of an attorney or other representative. (R. 22-24, 73-77, 94.) On January 7, 2009, the ALJ issued a decision denying McDonald's disability claim. (R. 9-19.) McDonald requested review by the Appeals Council. (R. 4.) On September 9, 2009, the Appeals Council denied McDonald's request for review, at which time the ALJ's decision became the final decision of the Commissioner. (R. 5-8); Zurawski v. Halter, 245 F.3d 881, 883 (7th Cir. 2001). McDonald subsequently filed this action in the District Court.

B. Medical Evidence

McDonald injured his back for the first time sometime in mid- to late-2003, and re-injured his back on at least one subsequent occasion in August 2004. (R. 255, 274.) McDonald also asserts several additional "incidents" of injury, on December 8, 2003, March 3, 2004, and April 18, 2005. (Pl.'s Mem. at 4; R. 348.) Notably, the ALJ's opinion states that McDonald was first injured in 2004 and reinjured in 2005. (R. 15.) That apparent misreading of the record is discussed in further detail herein.

McDonald began seeing a chiropractor, Matthew D. Marti, D.C., on October 10, 2003. (R. 256.) McDonald reported to Dr. Marti that his middle back was sore and that on an unspecified date, McDonald had felt a pop in his lower back while lifting. (Id.) Dr. Marti provided multiple authorizations for McDonald to be excused from all work duties, covering the time period between February 13, 2004 through May 6, 2005. (R. 239-240.)

On October 29, 2003, physical therapist Jeff Schade reported in an initial evaluation that McDonald had been hurt approximately two months earlier. (R. 255.) The evaluation notes that claimant stated he was injured at work while carrying heavy fabricating equipment. (Id.) While carrying that equipment, McDonald stepped into a hole and felt a "pop in his back and hip region." (Id.) Claimant reported to the physical therapist that, since the incident, he has had "a constant pinching" in his lower back that can be very severe and can make him "almost unable to walk." (Id.)

On August 25, 2004, McDonald went to the emergency room at Morris Hospital, where he reported that he was "lifting something from waist high . [and] felt a sharp pain to his back lower . [then] he felt something pop. [He] [d]enie[d] pain or radiation to legs [sic]." (R. 274.) That day, McDonald also had diagnostic imaging done; no evidence was found of fracture, subluxation, or other bony abnormalities. (R. 283.) The emergency room physician Michael Kryza recommended that "the patient will perform light duty lifting less than 5 pounds" and "will follow-up with occupational health within two days." (R. 275.)

McDonald asserts he stopped working almost immediately after his disability onset, in mid-April 2005. (R. 348.) Prior to that point, McDonald's past work included being a saw operator, a parts deliverer, a maintenance manager at a fast food restaurant, and a cashier at a gas station. (R. 135-43, 185-93.) On April 23, 2005, McDonald had a magnetic resonance imaging ("MRI") done of his lumbar spine at St. Mary's Hospital, which revealed normal alignment and no evidence of significant degenerative disc disease. (R. 310.) However, according to the report, the MRI at the "L4-5 level suggests some possible very mild diffuse disc bulging. L5-S1 level demonstrates a small left paracentral disc herniation that extends slightly inferior to the disc space level. It is in close approximation to the exiting left nerve root at the L5-S1 level. The rest of the examination was relatively unremarkable." (R. 310.)

In a form dated August 19, 2005, Dr. Marti indicated that McDonald had a "Class 5" physical impairment, described as "Severe limitation of functional capacity; incapable of minimal (sedentary) activity (75-100%)," that he was "disabled and unable to perform other gainful work," and that he was to have "no work duty, until further notice." (R. 243.) Dr. Marti also indicated that McDonald has "improved," was "ambulatory," and that Dr. Marti expected a "fundamental or marked change in the future" -- specifically, "improvement" -- relating to McDonald's "job" and "other gainful work." (Id.) In late August 2005, Dr. Marti noted that McDonald was scheduled for a neurological consultation. (R. 241.)

McDonald had the neurological consultation on September 8, 2005 with George DePhillips, M.D., S.C. (R. 341.) Dr. DePhillips reported that:

[P]atient presents . with a several week history of low back pain with pain radiating into both lower extremities and radiates down the posterior thighs and calves to the ankles although the majority of his pain is in the lower back. The patient states that through chiropractic treatments his pain has improved from a 10 to a 4 on a scale of 1-10 although he does continue to have bad days. The patient's MRI scan reveals disc degeneration at the L5-S1 level with a left sided disc protrusion.. The patient's only surgical option is a spinal fusion but he is very young and it is my recommendation that he continue conservative treatment. I have recommended a lumbar epidural steroid injection along with continued chiropractic treatments.

(R. 341.)

As part of the disability application process, medical consultant Madala Ramakrishna completed a physical residual functional capacity assessment ("RFC") of McDonald on January 9, 2006. (R. 286-93.) Ramakrishna's primary diagnosis was disc herniation. (R. 286.) Ramakrishna concluded that claimant could lift and/or carry 10 pounds frequently and 20 pounds occasionally, could stand and/or walk (with normal breaks) for a total of about six hours in an eight-hour workday, could sit (with normal breaks) about six hours in an eight-hour workday, and had unlimited push and/or pull limitations, other than as shown for lifting and carrying. (R. 287.) As support, Ramakrishna cited claimant's "Hx of back pain." (Id.) Ramakrishna also found claimant was "occasionally" limited posturally, in climbing, balancing, stooping, kneeling, crouching, and crawling. (R. 288.) As part of the assessment, Ramakrishna also considered two previous MRI reports and noted there was very mild disc bulge at L4-5.

(R. 293.) Ramakrishna also considered a report from September 8, 2005 (presumably Dr. DePhillips') where claimant indicated that his pain improved from a ten to a four and a scale of 1-10. (Id.)

On November 4, 2006, ChukwuEmeka Ezike, M.D., M.P.H., of Gozi Health Services, conducted a consultative exam of McDonald at the request of the Bureau of Disability Determination Services. (R. 314-17.) Over the course of 30 minutes, Dr. Ezike reviewed "forms" and interviewed and examined McDonald. (R. 314.) Dr. Ezike wrote, among other things, that McDonald was able to get on and off the exam table "with no difficulty" and "could walk greater than 50 feet without support." (R. 316.) Dr. Ezike found claimant's gate to be "non-antalgic without the use of assistive devices," and that he had a normal range of motion in his hips, knees, and ankles, as well as in his cervical spine. (Id.) Dr. Ezike found that claimant's lumbar flexion was 45 degrees and extension was ten degrees with mild pain. (Id.) He also noted "mild lumbar and paralumbar tenderness," and that claimant's "[s]traight leg raise was positive on the left side at about 60 degrees." (Id.) Dr. Ezike listed his "Impression[s]" as "Chronic low back pain," "Lumbar radiculopathy," and "Obesity." (Id.)

On November 15, 2006, medical consultant Michael Nenaber, M.D., completed another physical RFC assessment of McDonald. (R. 319-26.) Dr. Nenaber's "primary diagnosis" for McDonald was "Arthritis"; he did not list a "secondary diagnosis." (R. 319.) As part of his assessment, Dr. Nenaber considered Dr. Ezike's consultative exam report. (R. 326.) Dr. Nenaber concluded that McDonald's exertional limitations allowed him to lift 50 pounds occasionally and 25 pounds frequently, to stand and/or walk (with normal breaks) for a total of about six hours in an eight-hour workday, and to sit (with normal breaks) about six hours in an eight-hour workday. (R. 320.) Dr. Nenabar found McDonald had no push and/or pull limitations, other than as noted for lifting and carrying. (Id.) Dr. Nenaber also found claimant is "frequently" limited posturally in climbing ramp/stairs, balancing, stooping, kneeling, crouching, and crawling and is "occasionally" limited posturally in climbing ladder/rope/scaffolds. (R. 321.) Based on those exertional and postural limitations, Dr. Nenaber recommended a "medium work restriction." (R. 326.)

McDonald again saw Dr. DePhillips on December 20, 2006. (R. 340.) In his notes of that visit, Dr. DePhillips wrote that while he had originally recommended a lumbar epidural steroid injection, McDonald's "work comp" had not approved such a treatment. (Id.) Dr. DePhillips also noted that Dr. Marti was going to proceed with lumbar disc decompression treatments, which Dr. DePhillips felt "are reasonable and related to the work injury." (Id.) Dr. DePhillips prescribed Norco, wrote that he "will see the patient in follow up in 4-6 weeks," and noted "[t]he patient continues to remain off work." (Id.)

At McDonald's next visit with Dr. DePhillips on March 16, 2007, the doctor wrote that claimant "continues to suffer lower back pain with pain radiating into both lower extremities with associated weakness." (R. 340.) Dr. DePhillips also noted that McDonald's MRI scan revealed a midline disc protrusion at the L5-S1 level, which "certainly can be the source of his pain." (Id.) Dr. DePhillips wrote that claimant had not undergone epidural steroid injections "as work comp has prevented any further treatment." (Id.) He also wrote: "patient at this point is disabled and cannot return to work in any capacity. I suspect he will need to undergo discography and a spinal fusion at the L5-S1 level .. I will see him in 2-3 weeks for follow up examination." (Id.)

McDonald had a follow up evaluation with Dr. DePhillips on June 15, 2007. (R. 371.) Dr. DePhillips wrote that "In my opinion [McDonald] remains currently unemployable and totally disabled." (Id.) Dr. DePhillips noted that McDonald was awaiting approval to proceed with further diagnostic and therapeutic ...

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