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Teresa L. Egan v. Michael J. Astrue

July 10, 2012

TERESA L. EGAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge P. Michael Mahoney

MEMORANDUM OPINION AND ORDER

I. Introduction

Teresa L. Egan ("Claimant") seeks judicial review of the Social Security Administration Commissioner's decision to deny her claim for Disability Insurance Benefits ("DIB"), under Title II of the Social Security Act. See 42 U.S.C. § 405(g). This matter is before the Magistrate Judge pursuant to the consent of both parties, filed on March 10, 2010. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

On May 8, 2008, Claimant applied for Disability Insurance Benefits, alleging a disability onset date of August 28, 2005. (Tr. 10.) Claimant's initial application was denied on September 12, 2008. (Tr. 10.) Her claim was denied a second time upon reconsideration on October 14, 2008. (Tr. 10.) Claimant then filed a timely request for a hearing before an Administrative Law Judge ("ALJ") on November 4, 2008. (Tr. 10.) The hearing took place on August 5, 2009, via video teleconference between Evanston, Illinois and Rockford, Illinois, before ALJ Robert C. Asbille. (Tr. 10.) Claimant appeared and testified in Rockford with her attorney present. (Tr. 10.)

Medical expert ("ME"), Joseph Solovy, M.D., and vocational expert ("VE"), William Newman, also testified before the ALJ. (Tr. 10.) On August 28, 2009, the Claimant's attorney requested a supplemental hearing to present records of a neck surgery and follow-up appointments, and allow the ME to more fully assess her condition. (Tr. 269.)

A supplemental hearing took place on February 22, 2010, via video teleconference between Evanston, Illinois and Rockford, Illinois, before ALJ Robert C. Asbille. (Tr. 10.) Claimant appeared and testified in Rockford with her attorney present. (Tr. 10.) ME Ronald A. Semerdjian, M.D., and VE, Jill K. Radke, also testified before the ALJ. (Tr. 10.)

On February 26, 2010, the ALJ held that Claimant was not disabled and denied her claim for DIB. (Tr. 19.) The ALJ's decision is considered the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1455, 416.1481. Claimant now files a complaint in this Federal District Court, seeking judicial review under 42 U.S.C. § 405(g).

III. Background

Claimant was born on July 31, 1963, and was forty-six years old at the time of the supplemental hearing. (Tr. 24.) Claimant stood five feet and eight inches tall, and weighed approximately 192 pounds when she appeared in front of the ALJ. (Tr. 24.) At the time of the hearing, Claimant resided in Sterling, Illinois with her husband. (Tr. 25, 51.) She completed the eleventh grade, and earned a G.E.D. (Tr. 52.)

Claimant states she was diagnosed with degenerative joint disease of the back, in 1992. (Tr. 303.) She stated that she "blew a disc" while lifting a keg and had a discectomy in 1992. (Tr. 303.) Two months later, she claims she was involved in a motor vehicle accident and subsequently had a lumbar fusion at L3-L5. (Tr. 303.) She was able to continue work as a bartender approximately five years after the accident. (Tr. 304.) Following a series of epidural steroid injections, there was a complete resolution of the back pain, but Claimant reported increasing neck pain. (Tr. 283.) The Claimant never alleged disability related to her lumbar fusion. Her argument solely involves a claim of disability based on head and neck limitations.

The Claimant also stated that she broke her leg in 2006 and she continues to have severe pain, discoloration, and swelling of the leg. (Tr. 304.) She was diagnosed with reflex sympathetic dystrophy (RSD) and still suffers from the symptoms with prolonged walking or standing. (Tr. 304.)

The Claimant stated that she was diagnosed with bipolar disorder. (Tr. 304.) Her doctor referred her to a psychiatrist who told her that her depression was secondary to the fact that she was not working and discharged her. (Tr. 304.) She has not seen a psychiatrist since 2007 and has not taken any new medications. (Tr. 304.)

The Claimant's main previous work was as a bartender. (Tr. 52.) The VE present at the hearing which took place on August 5, 2009, reported bartending as a medium semiskilled profession. (Tr. 52.) Claimant reported that the last time she tried to work, her left side would go numb and she could not move her arms. (Tr. 53.) She attempted to return to work as a bartender from January 2, 2008 to March 13, 2008, but stopped working on her doctor's advice. (Tr. 12.)

In the hearing which took place on August 5, 2009, Claimant testified that she could sometimes wash clothes and wash dishes but is not always able to finish. (Tr. 57.) She further stated that she would sometimes cook but could not go shopping for food. (Tr. 57.) The Claimant testified that she spends the average day reading or on the computer and then goes back to bed. (Tr. 58.) Claimant stated that the furthest she walked in the past month was a block and she can only drive short distances due to swelling in her leg. (Tr. 52, 57.) Furthermore, she stated that she suffers migraines and cannot lift a gallon of milk due to weakness in her upper left extremity.

(Tr. 56, 59.) Claimant reported that she smokes about a pack a day and used to be a heavy drinker. (Tr. 58.)

The ME at the initial hearing testified that the Claimant would be able to sustain sedentary work on an eight-hour a day, 40-hour a week basis. (Tr. 70.) The ME stated that there was no neurological deficit in connection with the lumbar fusion and reflexes were normal. (Tr.

69.) He stated that the Claimant could walk 50 feet with normal joint movement, but standing for a long period of time would generate pain. (Tr. 67.) The ME further stated that the Claimant's surgery on August 18, 2008, was presumably to remove pressure off the nerve roots and hopefully improve the strength of the left upper extremity. (Tr. 67.)

The VE in the initial hearing was given the following hypothetical: an individual of Claimant's age, education and work experience, who can perform the entire universe of exertional or non-exertional work with the exception that she'd be limited to lifting ten pounds occasionally, five pounds frequently, standing and walking two out of eight hours in divided periods, sitting six out of eight hours with a sit/stand option about every half-hour, no ladders, ropes or scaffolds. (Tr. 71-72.) When asked if such a person would be able to return to her past relevant work, the VE said she could not. (Tr. 72.) The VE testified that there was other work such a Claimant could perform including food or beverage order clerk, bench hand assembler, and sorter. (Tr. 72.) The VE further stated that the weakness in the Claimant's upper left extremity reduces the number of positions available by 30 percent. (Tr. 74.)

In the supplementary hearing which took place on February 22, 2010, the Claimant stated that she is unable to help with housework, including washing clothes, washing dishes, and cooking. (Tr. 27.) She testified that she spends her average day sitting in a recliner and watching television for a little bit, and "that's basically it." (Tr. 28.) The Claimant stated that the most she has walked in the past month was just around the house and she has not been outside. (Tr. 27.) Further, she maintains that she is only able to drive short distances. (Tr. 29.) The Claimant also stated that since her surgery on August 18, 2009, her migraines have become less painful. (Tr. 27.)

In the supplemental hearing, the ME stated that there would be a decrease in the range of motion of the neck. (Tr. 36.) When asked if he agreed with the evaluation of the initial hearing's ME, with respect to how much the Claimant can lift, the ME responded, "I don't think he had an opportunity to see what the result of the surgery was." (Tr. 36.) The ME stated that the Claimant could lift ten pounds frequently and twenty pounds occasionally, because her upper extremity strength is 5/5. (Tr. 36-37.) The ME further stated that he did not think there was any limitation on standing, walking, or sitting. (Tr. 37.) The ME believed that bending and stooping would be okay, but crawling would be limited. (Tr. 37-38.) The VE further stated that there was no doubt that the Claimant would not be able to return to her past relevant work. (Tr. 40.) The VE was then asked if there were any jobs that the Claimant could perform if she was limited to sedentary work with a restriction on the movement of her head. (Tr. 41.) The VE stated that jobs were available at that level, including order taker, general office clerk, and receptionist. (Tr. 41-42.)

IV. Medical History

1. Neck and Back Pain

Prior to 2008, Claimant had multiple steroid injections in the back and physical therapy. (Tr. 304.) Dr. Juan Ibarra, M.D., delivered approximately three injections per year which showed only mild improvement. (Tr. 304.) Claimant stopped physical therapy in November of 2007. (Tr. 304.)

On November 15, 2007, upon follow-up for causal epidural steroid injection, Dr. Ibarra noted that she no longer had any lower back pain but she does have left-sided neck pain with some radiation that goes into the hand and aggravation of migraine headaches. (Tr. 284.)

After an MRI on November 23, 2007, Dr. Surjit Hermon, M.D., diagnosed the Claimant with cervical spondylosis of C3 through C7 with posterior disc osteophyte complexes and small posterior and left paramedian disc herniation at C3-4. (Tr. 282.) He also noted a small posterior disk osteophyte complex with indentation of the thecal sac at T2-T3. (Tr. 282.)

On January 2, 2008, Dr. Ibarra noted evidence of chronic neck pain which was secondary to left cervical facet syndrome and ordered a percutaneous injection for January 16, 2008. (Tr. 279.) Upon follow-up, on March 5, 2008, Dr. Ibarra stated that the injections completely resolved the Claimant's left-sided neck pain but not the pain in the center of her neck. (Tr. 274.)

After applying for DIB, the Claimant went through multiple consultative evaluations at the request of the Social Security Administration. On July 26, 2008, Dr. Stanley Simon, M.D., M.P.H., spent approximately 30 minutes reviewing forms, interviewing, and examining the Claimant. (Tr. 303.) Dr. Simon noted that the Claimant claimed she was diagnosed with degenerative joint disease of the back in 1992, and had a discectomy, after she "blew a disc" while lifting a keg. (Tr. 303.) She further stated that she was involved in a motor vehicle accident and subsequently had a lumbar fusion at L3-L5. (Tr. 303.) Claimant stated she had physical therapy for approximately one year and she was able to resume work approximately five years after the accident. (Tr. 303-04.) While working, Claimant developed increased pain in her neck and back and was referred to a neurosurgeon, Dr. Yak, who told her she had nerve damage in the back and recommended surgery. (Tr. 304.) After being told that there was an 80 percent chance of paralysis, she decided not to have surgery and was given Vicodin for the pain. (Tr. 304.) The Claimant also stated that she had developed severe headaches and left arm numbness after she started working again in January of 2008. (Tr. 304.)

During his examination of the Claimant's neck, Dr. Simon found there was a decreased range of motion on flexion 40 degrees and extension 45 degrees, side bending right and left 40 degrees, rotation right 70 degrees and rotation left 70 degrees. (Tr. 306.) Dr. Simon further stated that the Claimant was able to get on and off the exam table without difficulty. (Tr. 306.) The range of motion of the shoulders, elbows, and wrists was not limited. (Tr. 306.) The Claimant had tenderness at the L-spine at L2-L5 and the left paraspinous muscle at L2-L5 and a decreased range of motion. (Tr. 306.) Flexion was 90 degrees with pain and side bending left with pain. (Tr. 306.) Overall, it was the impression of Dr. Simon that the Claimant had degenerative joint disease of the lumbar spine and headaches. (Tr. 307.)

On October 9, 2008, Dr. Charles Wabner, M.D., reviewed the medical evidence and noted that the Claimant has a history of back pain and depression, though she did not allege a worsening of the condition or new impairments, and reported subsequent treatment for back pain only, the AP reports the same findings as the prior decision. (Tr. 337.) Based on the evidence of the record, the Claimant's statements were found to be partially credible, she does have a history of back pain and depression. (Tr. 337.)

Dr. Duncan Dinkha, M.D., saw the Claimant on June 19, 2009, for neck pain causing migraines and referred her to Dr. Krishna Chadalavada, M.D., for an MRI of the C-spine. (Tr. 363.) Upon examination, Dr. Chadalavada noted degenerative joint and disk of the cervical spine; bulging disk osteophyte complexes producing mild impingement on the thecal sac and mild spinal stenosis from ...


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