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Antonio Mireles v. Michael J. Astrue

April 30, 2012

ANTONIO MIRELES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Judge Feinerman

MEMORANDUM OPINION AND ORDER

Antonio Mireles filed a claim for disability insurance benefits ("DIB") with the Social Security Administration on August 15, 2008, alleging that he had become disabled on April 29, 2008. Doc. 17-6 at 9. The Commissioner denied the claim and then denied Mireles's request for reconsideration. Doc. 17-5 at 5, 13. Mireles sought and received a hearing before an administrative law judge ("ALJ") pursuant to 20 C.F.R. § 404.914. Doc. 17-3 at 15; Doc. 17-5 at 19. The ALJ denied the claim, Doc. 17-3 at 23-24, and the Social Security Appeals Council denied Mireles's request for review of the ALJ's decision, Doc. 17-3 at 2, making the ALJ's decision the final decision of the Commissioner. See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005). Mireles timely filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Commissioner's final decision. Before the court is Mireles's motion for summary judgment. For the following reasons, the motion is granted and the case is remanded to the Commissioner for further proceedings.

Background

The following facts are taken from the administrative record.

A. Factual Background

Mireles was 36 years old on April 29, 2008, the date he allegedly became disabled. Doc. 17-6 at 9. Mireles has a seventh-grade education, Doc. 17-7 at 16, cannot speak, read, or write English, id. at 6--7, and has a wife and three children, Doc. 17-6 at 10. Mireles has worked as an iron worker, janitor, and laborer, Doc. 17-7 at 18, and worked as a cleaner for Squeaky Clean Maintenance from January 2006 until April 29, 2008, when he was dismissed for missing work, Doc. 17-6 at 10.

The basis for Mireles's DIB claim is that he suffers from back pain. He was injured sometime in 2000, ibid., and had back surgery in October 2002 in an attempt to alleviate his pain, Doc. 17-7 at 7.

Mireles sought treatment from an internist, Dr. Claudia Vera. Dr. Vera's March 27, 2007 report indicates that Mireles was "un[a]ble to work due to severe low back and neck pain with associated radiculopathy to limbs." Doc. 17-8 at 3 (capitalization normalized).*fn1 Mireles saw Dr. Vera at least six times between February 2008 and March 2009; Dr. Vera regularly found that Mireles suffered from "back pain (chronic)," that he was "[p]ositive for: pain in joints," that "[t]he thoracic spine has limited ROM [(range of motion)] and pain with ROM," and that the "lumbar spine has pain with ROM." Id. at 54-69. Her notes indicate that Mireles was taking Nabumetone, Vicodin, and Flexeril throughout this period to treat his pain. Ibid.*fn2

On June 16, 2009, Physician Assistant Laura Neilsen evaluated Mireles. Id. at 46. Neilsen observed that Mireles had "degenerative joint disease," "joint stiffness," "limited range of motion," and back pain. Ibid. Her notes mirror Dr. Vera's findings of pain and limited range of motion. Id. at 47.

In September 2008, Dr. Charles Kenney, a state agency physician, reviewed Mireles's medical records and concluded in a September 16, 2008 report that he could lift up to twenty pounds occasionally and up to ten pounds frequently, could sit or stand for up to six hours a day, and could occasionally make postural changes like stooping, kneeling, crouching, and crawling. Id. at 24-25. Dr. Kenney based his findings on a diagnosis of "thoracic dis[c] disease" and Mireles's "limited range of motion of thoracic and lumbar spine with pain." Id. at 24. Dr. Kenney evaluated Mireles's credibility, concluding: "Claimant is considered partial creditable. He has thoracic and lumbar spine pain and some limitation of range of motion. Claimant states he is able to do most of adl's [(activities of daily living)], such as cleaning and do yard work." Id. at 30. Dr. Kenney did not explain why he found Mireles to be only "partial[ly] creditable." Ibid.

Dr. Ernst Bone, another state agency physician, reviewed Mireles's medical records and in a December 4, 2008 report confirmed Dr. Kenney's assessment, finding that Mireles could perform a "wide range of light work." Id. at 33. Dr. Bone's report indicates that an "MRI of [Mireles's] cervical spine shows minimal changes," that an "[i]nitial face to face interview showed no limitations," and that Mireles's "[c]redibility is appropriately addressed" by Dr. Kenney's report. Ibid.

Mireles sought treatment in July 2009 from Dr. Anthony Rivera, a pain management specialist. Dr. Rivera diagnosed Mireles with "1. Failed back syndrome[;] 2. Lumbar radiculopathy[;] 3. Cervical degenerative disc disease[; and] 4. Neuropathic pain." Id. at 45. Dr. Rivera recommended an MRI and EMG, and prescribed Neurontin to relieve Mireles's pain. Ibid.*fn3 A July 7, 2009 MRI of Mireles's lumbar spine revealed "a mild degree of disc dehydration and degenerative change at the L-5/S-1 level[;] however[,] there [we]re no focal disc herniations [or] significant spinal stenosis." Id. at 38. The MRI also revealed "a mild degree of ligamentum flavum thickening and facet degenerative change without any disc herniation or significant spinal stenosis" at the L-4/L-5 level, but was "otherwise unremarkable." Ibid.

On July 22, 2009, Mireles again saw Dr. Rivera and told him that he had not yet started taking the prescribed Neurontin. Id. at 42. Dr. Rivera determined that findings from the EMG and nerve conduction study were "consistent with an [a]cute on [c]hronic right S1 motor radiculopathy," and that "[t]he results of this physiological examination account[] for some of the patient's ...


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