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Judith A. Yost v. Michael J. Astrue

July 10, 2012

JUDITH A. YOST, 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 Judith Yost 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 disability insurance benefits under Title II 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. After careful review of the parties' briefs and the record, the Court now grants Plaintiff's motion and remands the matter solely for further questioning of the vocational expert on the effect of Plaintiff's mild difficulties with concentration, persistence, or pace.

PROCEDURAL HISTORY

Plaintiff applied for disability insurance benefits on October 2, 2006, alleging that she became disabled on December 7, 2002 due to Reflex Sympathetic Dystrophy Syndrome / Complex Regional Pain Syndrome (RSD/CRPS), degenerative disc disease, and depression. (R. 18, 20). The Social Security Administration denied the application initially on December 15, 2006, and again upon reconsideration on March 27, 2007. (R. 18). Pursuant to Plaintiff's timely request, Administrative Law Judge ("ALJ") Peter J. Caras held a hearing on May 20, 2009, where he heard testimony from Plaintiff, represented by counsel, and a vocational expert. (R. 29-66). On August 18, 2009, the ALJ found that Plaintiff is not disabled because she is capable of performing a significant number of jobs available in the national economy. (R. 26-28). The Appeals Council denied Plaintiff's request for review on November 17, 2010. (R. 7-9).

Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. Plaintiff advances three grounds for reversal. She first challenges the RFC determination on the grounds that the ALJ selectively and erroneously considered her treating physician's opinion and failed to consider the severity and symptoms of her RSD/CRPS. Plaintiff next argues that the ALJ's credibility finding failed to consider her treatment history and efforts to alleviate her pain or her attempts to return to work, and that the ALJ improperly relied on Plaintiff's ability to perform certain daily activities. Finally, she argues that the ALJ's conclusion that she can work is deficient because the ALJ failed to adequately question the vocational expert.

FACTUAL BACKGROUND

Plaintiff was born on February 28, 1969, and was 39 years old as of her date last insured ("DLI") of March 31, 2008. (R. 20, 26). She completed high school and two years of college, and is able to communicate in English. (R. 26, 59). Her past relevant work experience includes jobs as a bartender and a real estate title abstractor. (R. 26, 147).

A. Plaintiff's Medical History

1. Foot Pain

The record in this matter shows that Plaintiff was injured and allegedly became disabled on December 7, 2002 when several large baking pans fell on her left foot while she was working as a bartender and server at a restaurant and bar. (R. 228, 264, 369). The emergency room doctor at Silver Cross Hospital observed that her foot was "significantly swollen" but showed "no significant deformity." (R. 263-64). An x-ray of her foot was negative and no fracture was noted, although her foot was placed in a hard cast.

(R. 227, 264, 369). After Plaintiff complained of severe pain and swelling, the cast was removed a week later and her foot was instead placed in a "bulky wrap with cast padding and an ace bandage." (R. 266-67).

Upon examination two days later, Dr. Giridhar Burra of Parkview Musculoskeletal concluded that the "soft tissues are intact" and there is "no evidence of compartment syndrome." (R. 227). Another x-ray of her foot from multiple views revealed no fracture. (Id.). Dr. Burra placed her foot in a Cam walker, or walking boot, and referred her to Dr. Brian Couri at Silver Cross Hospital for consultation concerning her rehabilitation. (R. 227, 244-246). Dr. Burra and Dr. Couri both noted that a subsequent x-ray revealed a hairline fracture over the fifth metatarsal.*fn1 (R. 224, 244). On February 13, 2003, Dr. Couri diagnosed Plaintiff with complex regional pain syndrome of the left foot.*fn2 (R. 245). Dr. Couri recommended a treatment plan of sympathetic nerve block injections and occupational therapy for "desensitization" and "aggressive range of motion" of her left foot, as well as Neurontin for the pain and Trazodone for her sleep dysfunction. (Id.). Plaintiff also completed 26 physical therapy sessions from December 30, 2002 through April 16, 2003. (R. 327).

In 2003, Plaintiff had several follow-up visits with Parkview physician's assistant Mark Bordick and received treatment from Dr. Boris Nulman at Silver Cross Hospital's Pain Clinic. Mr. Bordick's treatment notes from February 2003 state that Plaintiff reported "mild discomfort," no numbness or tingling, and "decreasing symptoms in regards to what was diagnosed as reflex sympathetic dystrophy*fn3 in the past, i.e. hypersensitivity, etc." (R. 224). He advised Plaintiff to "continue to work her current light duty status" of four hour workdays. (Id.). In April, he noted that Plaintiff "states she received some relief from the [nerve block] injections, however continues to have mild discomfort." (R. 224).

Between March 21 and May 1, 2003, Plaintiff received four lumbar sympathetic blocks from Dr. Nulman, who observed upon initial examination that "[s]he does appear to have [the] first stage of RSD." (R. 270-77). He noted on May 1, 2003 that "pain free periods are getting longer" and Plaintiff has "a decreased degree of allodynia*fn4 and hyperpathia*fn5 even when pain comes back." (R. 277). Plaintiff saw Dr. Couri again in May 2003, at which time he noted that she "feels better" after the lumbar sympathetic blocks, with the first block helping the most and subsequent blocks lasting only 7-10 days. (R. 240). He also noted that she has difficulty with the cold and has increased pain when water hits her foot or when she inverts it. (Id.). He advised her to discontinue physical therapy and continue her home exercise program. (Id.). Due to the "diminishing return" of the blocks, Dr. Couri, in consultation with Dr. Nulman, recommended radiofrequency treatment "for more permanent relief." (Id.). Dr. Nulman subsequently performed a radiofrequency lesioning*fn6 of the left lumbar sympathetic chain in June 2003. (R. 278-79).

The record indicates that Plaintiff's pain returned in the fall of 2003. In October of that year, Mr. Burdick noted that "her condition has been virtually asymptomatic" but that she recently began experiencing "increasing discomfort" in the form of an "achy" pain due to "weather changes," with the pain worsening "with ambulation as well as cool temperatures." (R. 223). Due to the "infrequent nature of discomfort," she was prescribed the anti-inflammatory Vioxx. (Id.).

After eight months without a visit, Plaintiff returned to Dr. Couri in January 2004, complaining that her foot pain had returned the previous September. (R. 238-39). Dr. Couri noted that the treatment with Dr. Nulman "helped to diminish a significant amount of symptoms, although she never got rid of the dysesthetic pain on the top of her foot." (R. 238). Plaintiff complained of "a new pain that is pulsating on the top of her foot" at the initial injury sight. (Id.). He concluded that "she may have sustained some nerve damage to her left foot," and assessed her condition as Type II complex regional pain syndrome.

(R. 238-39). He noted that she "had responded well to the sympathetic ganglion denervation with it working for about 4-6 months," but recommended repeating the radiofrequency procedure. (Id.). He further recommended that she remain on her current medications and not work "anymore than 6-8 hours on her feet at one time." (R. 239). Dr. Nulman subsequently performed a radiofrequency ablation of the left lumbar sympathetic chain in February 2004. (R. 281-82).

Plaintiff did not see Dr. Couri again for more than a year. (R. 236). When she saw him next in February 2005, she complained of foot pain that was different from the pain associated with her complex regional pain syndrome. (Id.). She told Dr. Couri that she saw a podiatrist six to seven months prior who had diagnosed her with a neuroma*fn7 and told her to wear certain shoes, which "has helped very slightly," but she stated the podiatrist "was reluctant to recommend any surgery due to her diagnosis of complex regional pain syndrome." (Id.). Dr. Couri recommended additional radiofrequency treatment, a sinus tarsi injection, further podiatric consultation to improve her ankle and foot mechanics, and continuation of desensitization and range of motion therapy. (Id.). Plaintiff subsequently underwent another radiofrequency procedure on April 12, 2005. (R. 290-91). About two weeks later, Dr. Couri noted that she had "a good response" to the procedure and that her neuroma "has gotten better," although less than two weeks later she complained that the pain was returning. (R. 233, 234). Dr. Couri concluded that "it is difficult to tell how much further treatment [Plaintiff] will need" for her complex regional pain syndrome. (R. 234). Plaintiff was discharged from physical therapy after three sessions in May 2005. (R. 340).

Plaintiff's complaints of foot pain resumed in 2006 and she saw a podiatrist, Dr. Michael McDermott, on several occasions early in the year. (R. 252-55). A bone scan performed on March 29, 2006 revealed "[m]oderately intense, asymmetric, apparently traumatic activity at the distal left fifth metatarsal region," which "appears to have regressed" since the prior bone scan of January 2003. (R. 250-51). The bone scan report concluded that an occult fracture was unlikely but that reflex sympathetic dystrophy was "difficult to exclude." (Id.). Upon reviewing the scan on April 4, 2006, Dr. McDermott assessed Plaintiff with "[w]orsening Reflex Sympathetic Dystrophy [of the] left foot and ankle." (R. 248). He advised Plaintiff to continue physical therapy and activity but recommended referral to a pain clinic or physiatrist "for probable sympathectomies." (Id.). Plaintiff also completed 36 physical therapy sessions from January 4, 2006 through June 1, 2006. (R. 355).

On May 8, 2006, Plaintiff saw Dr. Faris Abusharif at the Joliet Pain Care Center for a new patient consultation. (R. 455-56). He administered a nerve block, which provided relief for approximately eight months, and administered another block on February 1, 2007.

(R. 457-59). He advised that if her symptoms persisted or the relief from the blocks was short-lived, he strongly encouraged her to undergo a trial for a spinal cord stimulator which can provide long-term relief. (R. 456, 458, 460). On July 18, 2007, Dr. Abusharif administered another nerve block, and several weeks later, a lumbar epidural steroid injection. (R. 603-06).

After examining Plaintiff on August 15, 2007, Dr. Abusharif wrote a lengthy summary of Plaintiff's medical history since her foot injury. (R. 607-10). He concluded that the pattern of short-term relief followed by pain flare-ups "will likely be something that will be a pattern for the rest of her life," although he also noted the possibility of implanting a spinal cord stimulation device for longer-term relief or nerve blocks and sympathetic lesioning for 4-6 months of relief at a time. (R. 609). He also noted that she will continue to require medication during flare-ups. (Id.). Dr. Abusharif noted that, at that time, she was taking "only" 500 milligrams of Naproxen because her pain was under control from the nerve block administered the prior month. (R. 610).

On September 13, 2007, Plaintiff had a follow-up consultation with Dr. Abusharif, during which they discussed the spinal cord stimulator option that Dr. Abusharif noted would address both her foot and back pain. (R. 611). Plaintiff declined to pursue that option, however, and instead "expressed interest in a TENS unit."*fn8 (Id.). Dr. Abusharif noted that he would have her primary care doctor obtain an order for the unit, and otherwise noted that her pain was "under adequate control." (Id.). The record does not indicate whether Plaintiff ever obtained or used a TENS unit. Plaintiff next returned to Dr. Abusharif approximately ten months later, in July 2008, complaining of flare-ups within the prior three weeks, and he administered a nerve block a couple weeks later. (R. 612-13).

2. Back Pain

In addition to her foot pain, Plaintiff complained of a back injury she incurred from falling down some stairs on March 16, 2005. (R. 289). About a week after the fall, she saw Dr. Ananda Pillai for pain in her lower back. (R. 363). An x-ray of her lumbar spine, sacrum and coccyx was normal, and Dr. Pillai recommended she treat the pain with Naprosyn and Flexeril. (R. 289, 363). In an April 28, 2005 follow-up appointment with Dr. Couri concerning her foot, she told him of the fall and complained of new pain that Dr. Couri characterized as left S1 radiculopathy, and which he posited may be attributable to the fall. (R. 234). An MRI of her lumbar spine revealed "[m]inimal degenerative changes of the L5-S1 disc space level" but was "otherwise unremarkable." (R. 294). Dr. Couri recommended six sessions of physical therapy, a left S1 transforaminal epidural steroid injection, and Ibuprofen and Flexeril. (R. 233).

About nine months later, on January 31, 2006, Plaintiff underwent a lumbar spinal MRI after experiencing back pain for two weeks. (R. 298). The report noted a "3mm central protrusion of [the] disc at L5-S1," and observed that this was similarly indicated in the April 2005 scan, but otherwise found the MRI "unremarkable." (Id.). The record is devoid of further documentation of back pain for over two and a half years, until Dr. Abusharif administered a lumbar epidural steroid injection at L5-S1 on September 12, 2008 and again on November 3, 2008. (R. 614-15).

3. Functional Assessment and Work Hardening Program

In February 2009, a few months before the May 2009 hearing before the ALJ, Dr. Abusharif requested a functional assessment of Plaintiff, which was performed by Alyssa Emanuelson, MS, ATC, of ATI Physical Therapy. (R. 479-86). The assessment concluded that Plaintiff could work for eight hours, including sitting or standing for eight hours for 60 minutes at a time, and that she could walk for five to six hours in total, including occasional long distances. (R. 480). The report noted that Plaintiff grimaced or complained of pain or soreness while performing certain activities, such as pushing and pulling, carrying, and repetitive foot motion. (R. 483). Plaintiff also reported low back pain after 35 minutes of sitting and 23 minutes of standing. (R. 484). Ms. Emanuelson concluded that Plaintiff is capable of light work, which included her then-employment as a bartender, and recommended a trial return to work and a four to six week course of work hardening and conditioning to maximize her functional ability. (R. 479). Dr. Abusharif approved the work hardening program (R. 487, 616).

Plaintiff began the program on March 2, 2009, and Dr. Abusharif noted that "she was progressing quite well" after one week, although due to increasing pain in her lower extremity, he advised suspending the work conditioning to administer another nerve block, after which Plaintiff could "resume [the program] within a day." (R. 618). In an April 15, 2009 follow-up with Dr. Abusharif, Plaintiff reported increasing pain, therefore Dr. Abusharif recommended another nerve block and a modified work hardening program of decreased intensity for no more than two to three hours until the pain is under control. (R. 620). On June 3, 2009, a couple weeks after the hearing before the ALJ, Plaintiff was discharged from the work hardening program, with the notation that she continues to function at a light/medium physical demand level from a functional standpoint, although she continues to have difficulty with squatting and walking over unlevel surfaces. (R. 621).

Dr. Abusharif's last notes in the record indicate that Plaintiff was able to tolerate two hours of work hardening before the pain became "quite significant." (R. 622). He concluded that Plaintiff "functions at a light physical demand and can do that quite consistently as long as there [are] some breaks in between to rest when the pain starts [to] become intense." (Id.). He observed that "for the most part [Plaintiff] is able to function through her activities of daily living and has no significant problems day to day." (Id.). She typically has two to three significant flare-ups per year of her complex regional pain syndrome, which are brought under control with sympathetic nerve blocks, but otherwise "she is functioning fairly well" so long as she "does things at her own pace which is usually a two hour stretch of activity and with rest in between." (Id.). Her back pain ...


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