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Linda Kay Bean v. Michael J. Astrue

July 27, 2012


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


Michael T. Mason, United States Magistrate Judge:

Plaintiff, Linda Kay Bean ("Bean" or "claimant"), has brought a motion for summary judgment [16] seeking judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her request for disability insurance benefits under the Social Security Act, 42 U.S.C. §§ 416(i) and 423(d). In his response [18], the Commissioner asks the Court to affirm the decision of the Administrative Law Judge ("ALJ"). Jurisdiction is proper under 42 U.S.C. § 405(g). For the reasons set forth below, claimant's motion for summary judgment is granted in part.

I. Background

A. Procedural History

Bean filed an application for period of disability and disability insurance benefits on February 28, 2008, alleging disability beginning June 2, 2006 due to fibromyalgia, depression, arthritis, headaches, and temporomandibular joint disorder ("TMJ").Bean's applications were denied initially on June 19, 2008, and upon reconsideration on July 22, 2008. (R. 89-93, 95-98.) Bean filed a timely request for a hearing. (R. 99-100.) On September 16, 2009, Bean appeared for a hearing before ALJ Denise McDuffie Martin. (R. 39-86.) On October 23, 2009, the ALJ issued a decision denying Bean's disability claim. (R. 17-34.) Bean then filed a timely request for review before the Appeals Council. (R. 12.) On November 9, 2010, the Appeals Council denied Bean's request

(R. 1-3), at which time the ALJ's decision became the final decision of the Commissioner. Tumminaro v. Astrue, 671 F.3d 629, 632 (7th Cir. 2011). This action followed.

B. Medical Evidence

1. Treating Physicians

Dr. Margo Wolf of Family Practice Consultants, LTD reported that she treated claimant four times a year beginning in 2006. (R. 308.) However, the earliest record specifically from Dr. Wolf is dated January 18, 2007, at which time she ordered an MRI of Bean's right hip after Bean complained of pain in that region.*fn1 (R. 241.) That MRI revealed a "high grade strain or partial tear of the greater trochanteric insertion of the gluteus minimus muscle." (Id.) "No osseous abnormalities" were demonstrated in the right hip. (Id.)

On January 30, 2007, claimant saw Dr. Jerry E. Bertolini for her increasing right hip pain. (R. 243.) Dr. Bertolini's examination revealed that claimant's hip was not at all tender and that she had a full range of motion without pain. (Id.) Straight leg raising was positive at 80 degrees on the right, but negative on the left. (Id.) Dr. Bertolini obtained x-rays of the lumbar spine, which showed mild degenerative changes at L3-4. (Id.) Dr. Bertolini ultimately concluded that Bean's right hip pain referred from the back and that the questionable partial tear of the gluteus minimus was insignificant and may have been over read. (Id.) Dr. Bertolini did assess degenerative disc disease at L3-4, but ruled out bulging disc at L3-4 or at L4-5. (Id.) Dr. Bertolini offered claimant therapy, but she declined, expressing preference to do her own. (Id.) Bean cancelled her next appointment with Dr. Bertolini. (Id.)

Claimant returned to see Dr. Wolf on March 28, 2008. (R. 249-51.) Dr. Wolf noted a history of fibromyalgia. (R. 249.) Claimant complained that she could not sit or stand for any period of time, could walk only half of a block or less, could lift only twenty pounds, and could not walk up stairs. (Id.) She further explained that she experienced pain in her hands and had difficulty working buttons. (Id.) Claimant also complained of problems with short term memory and staying focused on tasks. (Id.) Dr. Wolf's physical exam revealed unremarkable results. (R. 249-50.) She assessed fibromyalgia and prescribed Elavil, Vicodin, Hydrocodone, and Meloxicam. (R. 250-51.)

On October 3, 2008, claimant saw Dr. Wolf and complained of an all-over worsening pain. (R. 293.) She also reported "depressive symptoms." (R. 294.) Dr. Wolf's physical exam revealed, among other things, bilateral upper, middle and lower paraspinal muscle tenderness, bilateral subacromial bursa tenderness, bilateral subdeltoid bursa tenderness, and left biceps and deltoid muscle tenderness. (Id.) Dr. Wolf also noted hand and wrist tenderness in both upper extremities and podagra in both lower extremities. (Id.) Dr. Wolf prescribed Elavil, Hydrocodone, and Lyrica. (R. 295.)

Dr. Wolf also completed a Multiple Impairment Questionnaire on October 3, 2008. (R. 308-16.) Dr. Wolf reported her diagnosis as fibromyalgia, depression, and arthritis, with a "guarded" prognosis. (R. 308.) In support of her diagnosis, Dr. Wolf cited swollen, twisted fingers, trigger point findings, and the 2007 MRI of the right hip. (Id.) Dr. Wolf recorded claimant's primary symptoms as pain in the bilateral hands, knees, hips, and spine, and all of her muscles, which had progressively worsened since 2005. (R. 309, 315.) She estimated claimant's pain and fatigue levels as a nine on a ten-point scale. (R. 311.)

According to Dr. Wolf, claimant could sit, stand, and walk for less than one hour in an eight-hour day and must get up and move around at least every fifteen minutes.

(R. 312.) Dr. Wolf also concluded that claimant could only occasionally lift and carry zero to five pounds. (R. 312.) She noted marked limitations in claimant's ability to grasp, turn, and twist objects, fine manipulations, and reaching. (R. 312-13.) In Dr. Wolf's opinion, claimant was not capable of pushing, pulling, kneeling, bending, or stooping. (R. 315.) Dr. Wolf further reported that claimant's pain, fatigue, and other symptoms constantly interfered with her attention and concentration and that she was incapable of even low stress work. (R. 314.) Dr. Wolf estimated that Bean would be absent from work more than three times a month as a result of her impairments or treatment. (R. 315.)

Claimant returned to Dr. Wolf for follow-up on November 6, 2008 and complained of musculoskeletal pain, most often in her hands and hips, as well as associated numbness, aching, and tingling. (R. 476.) The physical examination revealed tenderness of the hands and hips bilaterally. (R. 477.) Dr. Wolf assessed fibromyalgia and carpal tunnel. (R. 477-78.) Dr. Wolf recommended an EMG of the upper extremities and referred claimant to a rheumatologist. (R. 478.)

The EMG and Nerve Conduction Study of the upper extremities was performed on November 25, 2008 and showed "at least a moderately severe carpal tunnel syndrome on the right side" and mild carpal tunnel on the left side. (R. 325.) There was no evidence to suggest ulnar neuropathy at the wrist or the elbow in either upper extremity, and there was no evidence of acute or chronic cervical radiculopathy or brachial pelxopathy in either upper extremity. (Id.)

On December 5, 2008, claimant saw Dr. Wolf and complained of headaches in her left temple area and numbness in the arm with associated weakness. (R. 469.) Dr. Wolf recommended an MRI of the brain and referred claimant to a pain specialist/anesthesiologist. (R. 471.) An MRI of the brain dated December 19, 2008 revealed "nonspecific focus of FLAIR signal in the right parlatal subcortical white matter; possible etiologies include age-related change or chronic small-vessel ischemic changes or demyelination among other causes." (R. 321.) No acute intracranial process was identified. (Id.) Mucosal thickening was noted in the sphenoid sinuses, as was opacification of a few right-sided mastoid air cells. (Id.) On December 29, 2008, claimant visited Dr. Wolf for a follow-up evaluation of her weakness. (R. 464-66.) Dr. Wolf commented on claimant's recent MRI results and referred her to a neurologist "to rule out MS." (R. 464.)

On December 31, 2008, claimant began treatment with Dr. Mauricio Orbegozo at Pain Centers of Chicago, LLC. (R. 406-07.) Claimant complained of pain in her right hip, knees, hands, feet, neck, and lower back. (Id.) Claimant described the pain as an "achy type pain" that is improved with medication and worsened by any kind of activity. (Id.) Dr. Orbegozo recorded claimant's average pain score as a four to five out of ten. (Id.) Dr. Orbegozo's physical exam revealed positive fibromyalgia points, positive limited range of motion, positive Kemp's test, and positive limited cervical range of motion. (Id.) Dr. Orbegozo diagnosed fibromyalgia, lumbar degenerative disc disease, and hip pain. (Id.) Claimant continued to see physicians at the Pain Center on a monthly basis through June of 2009. (R. 410-17.) She received prescriptions for pain medication at each visit, including Norco and Percocet. (R. 417.)

Claimant saw Dr. Nitin Nadkami on January 9, 2009 for a neurological consultation, at which time she complained of pain all over her body, disturbed sleep, poor balance, intermittent headaches, and dizziness. (R. 353.) Dr. Nadkami indicated that claimant had normal muscle tone without atrophy, "arm and leg strength grade 5," and "reflexes 2 and symmetric." (R. 354.) Dr. Nadkami assessed chronic pain syndrome and noted that claimant's symptoms were suggestive of restless leg syndrome. (Id.) Dr. Nadkami ordered a sleep study and laboratory studies for collagen vascular disease and demyelinating disease. (Id.)

On January 22, 2009, claimant saw Dr. Phillip Leung, a pulmonologist, for a sleep study. (R. 367-69, 375-78.) Dr. Leung noted claimant's history of depression and fibromyalgia. (R. 367.) Claimant reported frequent awakening at night, excessive daytime sleepiness, and poor memory and concentration. (Id.) Based on the results of the sleep study, Dr. Leung diagnosed obstructive sleep apnea, hypersomnia, possible periodic limb movement, and obesity. (R. 375.) Dr. Leung recommended a sleep study with CPAP (continuous positive airway pressure), weight loss, avoidance of operation of heavy machinery or motor vehicles, and the maintenance of an adequate sleep schedule. (Id.) Claimant underwent the CPAP study on January 29, 2009, as a result of which Dr. Leung recommended CPAP therapy. (R. 371-74.) A summary of CPAP compliance dated May 7, 2009 reveals that claimant was mostly compliant with her CPAP usage, although she denied improvement at a March 23, 2009 appointment with Dr. Leung. (R. 370, 365-66.)

At a neurological follow-up on February 3, 2009, Dr. Nadkami commented on the results of the sleep study. (R. 355.) Dr. Nadkami's exam revealed unremarkable results. (Id.) Dr. Nadkami prescribed Mirapex for restless leg syndrome and ordered a "spinal fluid examination for MS profile." (Id.) On March 3, 2009, Dr. Nadkami noted some improvement in symptoms ...

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