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Charles A. Newell v. Michael J. Astrue

April 23, 2012

CHARLES A. NEWELL, 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:

Plaintiff, Charles A. Newell ("Newell" or "claimant"), has brought a motion for summary judgment [26] seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for disability insurance benefits under the Social Security 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") [34]. We have jurisdiction to hear this matter pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, claimant's motion is granted and the Commissioner's motion is denied. This case is remanded to the Social Security Administration for further proceedings consistent with this Opinion.

I. BACKGROUND

A. Procedural History

Newell filed his application for disability insurance benefits on December 7, 2007 alleging disability beginning January 1, 2003 due to injuries he sustained to his right leg in a motor vehicle accident. (R. 76.) His date last insured was March 31, 2004. (Id.) Newell's application was denied initially on April 11, 2008 and again on reconsideration on July 9, 2008. (R. 78-82, 89-92.) Newell then requested a hearing, which was held on July 27, 2009 before ALJ Jose Anglada. (R. 25-73.) At the hearing, both Newell and Vocational Expert ("VE") ThomasGrzesik testified. (Id.) On September 15, 2009, ALJ Anglada issued his written decision denying claimant's application for benefits. (R. 10-21.) The Appeals Council denied Newell's request for review on February 24, 2011, making ALJ Anglada's decision the Commissioner's final decision. (R. 1-3); Estok v. Apfel, 152 F.3d 636, 637 (7th Cir. 1998). Claimant subsequently filed this action in the district court on March 18, 2011.

B. Medical Evidence

1. Treating Physicians

On July 8, 2003, Newell reported to the emergency room ("ER") of Morris Hospital in Morris, Illinois after he was involved in a motor vehicle accident. (R. 339.) As he explained to the ER staff, Newell was struck sideways by a moving vehicle while he was sitting at rest on his motorcycle. (Id.) He arrived at the ER five hours later complaining of abrasions to his right leg. (Id.) An x-ray of Newell's right knee and leg showed that he had not sustained a fracture, though some deformity of the proximal metaphysis of the tibia suggested an old fracture that had healed. (R. 345.) The x-ray also indicated early degenerative changes to the medial knee compartment and an early spur formation to the medial tibia. (Id.) ER physician Dr. Marc Crockett examined Newell and found that he had a normal gait, normal range of motion in the neck, and a normal back with no tenderness. (R. 340.) Newell's right leg showed two large hematomas on the lower front, but he retained good motor and sensory functioning in his limbs. (Id.) Dr. Crockett diagnosed Newell with an acute right leg contusion resulting from a motor vehicle accident and recommended that he keep the leg elevated for one to two days. (Id.) Newell was released after being advised to take over-the-counter pain medication and to follow up with his family doctor in two to three days. (Id.)

Newell followed these instructions by consulting his regular physician, Dr. Charles Comfort, on July 10, 2003. (R. 319.) Dr. Comfort noted that his right leg was red and swollen, and he recommended that Newell take the prescription pain drug Vicodin to relieve his discomfort. (Id.) One week later on July 17, 2003, Newell visited Dr. Comfort once again. (R. 320.) This time, Newell's leg had improved from red to yellow, and Dr. Comfort noted that he was feeling better overall. (Id.) On August 5, 2003, Newell complained to his physician that his right knee felt as if it were going to swell and that he had a burning sensation in the right leg. (Id.) Dr. Comfort referred Newell to an orthopedist, Dr. Meyer, but Newell did not follow up on this recommendation. (R. 320-21.) Instead, he returned to see Dr. Comfort several weeks later on September 11, 2003. (R. 321.) His physician noted that Newell was still walking with pain, but significant improvements were seen; the wounds had "healed," the leg looked "great," and a full range of motion was observed. (Id.) Overall, Dr. Comfort found that Newell was "90% better." (Id.)

Unfortunately, as the wounds caused by his vehicular accident were healing, Newell was also suffering from feelings of depression. On December 4, 2003, he consulted with psychiatrist Dr. Mary Cherian complaining that he was "fighting being depressed all the time." (R. 207.) Newell reported that he was anxious, angry, and irritable, and that he had broken two teeth by force of the muscle tension in his jaw. (Id.) Dr. Cherian noted that Newell felt "overwhelmed" with his home life and experienced significant tensions with his wife, who was also Dr. Cherian's patient. (Id.) Newell stated that he had difficulty sleeping and was taking Tamezepam to help him sleep about five hours each night.*fn1 (Id.) He was no longer "enjoying his life" because he could not do his normal activities when he was always worrying about his wife. (Id.) Newell was able to concentrate. (Id.) He had recently lost thirty pounds. (Id.) As Dr. Cherian indicated, Newell was a Vietnam veteran who suffered from disturbing memories, though he did not have flashbacks. (R. 208.) He had some suicidal ideation with a depressed mood and a "sad, tearful" affect. (R. 208, 210.) Dr. Cherian diagnosed Newell as having a major depressive disorder with a seasonal component, anxiety, and post-traumatic stress syndrome ("PTSD"). (R. 210.) The psychiatrist indicated that Newell was not able to afford psychotherapy, and she began his treatment by prescribing 25 mg of Zoloft for one week, and 50 mg thereafter. (Id.)

Newell returned to see Dr. Cherian on January 8, 2004. (R. 206.) Although he was "not back to normal," Dr. Cherian determined that he was a "little better" after several weeks of treatment on medication. (Id.) He was less nervous and depressed, though he was still experiencing a sense of "impending doom." (Id.) Dr. Cherian decreased the dosage of Ambien and doubled the level of Zoloft to 100 mg per day.

(Id.) By February 9, 2004, Newell's condition had again improved. (R. 205.) He was calmer and less overwhelmed, and Dr. Cherian noted that he no longer felt suicidal. (Id.) He was still anxious and sad, however, and she increased the level of Zoloft once again to 150 mg per day. (Id.) Newell consulted Dr. Cherian a final time on March 22, 2004. (R. 204.) His mood and affect were better than before, with less irritability. (Id.) Although he still experienced problems with worry, Dr. Cherian determined that his nervousness had improved to a level of four or five out of ten. (Id.) She increased the prescription of Zoloft to 200 mg a day and recommended that Newell return in eight weeks.*fn2 (Id.)

The record is unclear on what course of treatment, if any, Newell pursued for his depression and PTSD after he stopped seeing Dr. Cherian. On October 11, 2006, however, Newell visited the Veterans Administration ("VA") hospital in Hines, Illinois, where he was noted as suffering from PTSD.*fn3 (R. 218.) On March 8, 2007, Newell met with Dr. Aparna Sharma to assess his condition. (R. 242-47.) Dr. Sharma noted that Newell complained of hopelessness, worthlessness, and hypervigilance. (R. 243.) These issues were particularly pressing during the winter months. (Id.) Newell also told Dr. Sharma that he had flashbacks to experiences in Vietnam two to three times a week, and that he experienced intrusive thoughts about the war on a daily basis. (Id.)

Problems with anxiety continued to surface, especially in the evening, and Newell awoke to go to the bathroom every one to two hours during the night. (Id.) Newell also reported that he had been in a PTSD support group, but he stopped going because one member "talks too much." (R. 244.) Dr. Sharma diagnosed Newell as suffering from depression, PTSD, and seasonal affective disorder ("SAD"). (R. 246.) He began Newell on 10 mg per day of the antidepressant medication Celexa and 100 mg of Trazodone to help him sleep. (R. 247.) Dr. Sharma also recommended that Newell participate in individual and group therapy for PTSD, but Newell declined both options. (Id.)

Newell's mood improved by his second visit with Dr. Sharma on April 20, 2007. (R. 234-36.) The psychiatrist stated that claimant's depression had improved from a level of seven to four out of ten, and his interest level, motivation, and ambition had also increased. (R. 234.) Feelings of hopelessness and helplessness had disappeared as well. (Id.) Although Newell continued to struggle with anxiety and "crazy dreams," he was no longer experiencing flashbacks. (Id.) Dr. Sharma increased the dosage of Celexa to 20 mg and again recommended that Newell attend group and individual therapy. (R. 235.) The record does not suggest that Newell followed up his treatment with Dr. Sharma after the April 20, 2007 visit. But, at the hearing, Newell testified that Dr. Comfort prescribed Lexapro and Amprizile to help control his anxiety.*fn4 (R. 49, 329.)

2. State Agency Consulting Physicians

On March 30, 2008, Dr. Leslie Fyans completed a "Psychiatric Review Technique" evaluation for Newell. (R. 529-41.) Although Newell had been treated for depression by Dr. Cherian as early as December 4, 2003, Dr. Fyans appears not to have been aware of this treatment. Instead, she noted that the record did not suggest that Newell had undergone treatment for depression prior to his late date insured of March 31, 2004. (R. 541.) Dr. Fyans determined that "insufficient evidence" was available to make any determination concerning Newell's psychiatric condition, and she made no findings concerning his depression, PTSD, or any functional limitations. (R. 529-41.)

State agency consulting physician Dr. Sandra Bilinsky also completed two "Illinois Request for Medical Advice" forms concerning Newell. (R. 543-48.) In the first, dated April 3, 2008, Dr. Bilinsky found that Newell did not meet or equal a Listing for bladder cancer, and that he should be limited to light work due to his ileal conduit. (R. 544.) In the second form, issued five days later on April 8, 2008, Dr. Bilinsky considered Newell's claims related to the leg injury he sustained in the July 8, 2003 vehicular accident. (R. 546-48.) Dr. Bilinsky noted that Newell experienced contusions to his leg, but she found that his injuries were not severe. (R. 548.) Dr. Francis Vincent and Dr. Kirk Boyenga completed a follow-up report for the SSA on July 3, 2008. (R. 549-51.) These physicians affirmed both Dr. Fyans' and Dr. Bilinsky's earlier reports, noting that Newell's depression had improved as of March 22, 2004. (Id.)

C. Supporting Letters

On July 22, 2009, Newell's friend Richard Krohn wrote a letter to the ALJ describing the effects of Newell's 2003 vehicular accident. (R. 189.) Krohn states that Newell never fully recovered from his injuries and continues to have pain in his back, left hip, right leg, and right ankle. (Id.) According to Krohn, the distance Newell can walk is limited, and he no longer uses a walking trail next to his property or engages in former activities like hiking, fishing, or riding his all-terrain vehicle. (Id.) Krohn explains that there have been "countless times" when he has been required to help out with chores that Newell can no longer carry out, such as moving furniture, cutting grass, and stacking wood. (Id.)

Newell's daughter, Christy Newell, also provided the ALJ with a written statement on July 25, 2009. (R. 191.) She states that Newell has only been able to walk a quarter of a mile at a time since the accident, and he must walk slowly. (Id.) His ability to stand or walk is limited to thirty minutes at a time, after which he must rest for at least another thirty minutes. (Id.) Ms. Newell claims that her father's pain and weakness have caused him to be depressed and have changed his formerly outgoing personality. (Id.)

D. Claimant's Testimony

At the July 27, 2009 hearing before ALJ Anglada, Newell testified as follows. Newell was born on October 11, 1948, making him 60 years old at the time of the hearing. (R. 29.) He is married, and lives with his wife, daughter, and three grandchildren in Morris, Illinois. (R. 30.) His wife is disabled from injuries she sustained in a car accident "maybe" three years prior to the hearing and ...


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