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Donald C. Bayless v. Michael J. Astrue

August 6, 2012


The opinion of the court was delivered by: Magistrate Judge Finnegan


Plaintiff Donald C. Bayless seeks to overturn the final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. 42 U.S.C. §§ 416, 423(d). The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and Plaintiff filed a motion for summary judgment. After careful review of the record, the Court now denies Plaintiff's motion and affirms the decision to deny him benefits.


Plaintiff applied for DIB on September 19, 2006, alleging that he became disabled on June 30, 2004 due to a work-related "back injury with ruptured discs and lumbar fusion." (R. 122, 160). The SSA denied the application initially on February 8, 2007, and again upon reconsideration on August 1, 2007. (R. 14, 68-74, 77-80). Plaintiff filed a timely request for hearing and appeared before Administrative Law Judge Mona Ahmed (the "ALJ") on November 14, 2008. (R.

14). The ALJ heard testimony from Plaintiff, who appeared with counsel, as well as from Medical Expert Walter J. Miller, Jr., M.D. (the "ME") and vocational expert Pamela Tucker (the "VE"). Shortly thereafter, on February 24, 2009, the ALJ found that Plaintiff is not disabled because he can perform a significant number of sedentary jobs available in the national economy. (R. 14-26). The Appeals Council denied Plaintiff's request for review on March 8, 2011, (R. 1-3), and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner.

In support of his request for remand, Plaintiff argues that the ALJ: (1) improperly rejected the opinions of his treating physician, George E. DePhillips, M.D.; (2) made a flawed credibility determination; and (3) failed to properly analyze his depression and low Global Assessment of Functioning scores. As discussed below, the Court finds no merit to these challenges, and affirms the ALJ's decision.


Plaintiff was born on October 24, 1963, and was 45 years old at the time of the ALJ's decision. (R. 24, 31). He has one year of college education and a certificate in law enforcement. (R. 32-33). Plaintiff worked as a security officer at O'Hare International Airport until June 2004, when he injured himself on the job.

(R. 161). He attempted to return to work in May 2006 but had to stop again in August 2006 due to back pain. (R. 149, 151).

A. Medical History

1. Back Impairment a. Initial Injury and Treatment (June to November 3, 2004)

While working at the airport on June 30, 2004, Plaintiff lifted a bag onto a machine and his back "popped." (R. 543). Prior to that time, he had been physically active, lifting weights, playing recreational sports, and serving as a Navy reservist. (R. 184). After the injury, he began experiencing low back pain with numbness and tingling extending down his legs. (R. 381). Plaintiff's physician, Sanjay Pethkar, M.D., ordered an MRI dated July 30, 2004, which showed central disc herniation and degenerative changes in the L5-S1 region.

(R. 383). Dr. Pethkar referred Plaintiff for a neurosurgical consultation with Dr. George DePhillips, who examined Plaintiff on August 16, 2004 and suggested a course of conservative treatment, including physical therapy and epidural steroid injections. (R. 381).

Plaintiff initially responded well to physical therapy, then suffered worsening pain when Dr. DePhillips switched him to more strenuous work conditioning in September 2004. (R. 379). Plaintiff received an epidural steroid injection on October 4, 2004, and participated in 17 regular physical therapy sessions that month, demonstrating excellent effort and motivation. (R. 301-02, 379). On November 3, 2004, however, he told Dr. DePhillips that he could no longer live with the pain. (R. 378, 522). Dr. DePhillips ordered a discogram to better assess Plaintiff's condition. (R. 378).

b. Spinal Fusion and Recovery (November 11, 2004 through April 2006)

Plaintiff's November 11, 2004 discogram showed "slight degenerative changes and a grade 1 spondylolisthesis"*fn1 at L5-S1, as well as a "subligamentous disc protrusion or annular tear." (R. 279-81). A CT scan taken after the procedure confirmed these findings. (R. 283). Dr. DePhillips reviewed the test results and recommended a lumbar decompression and spinal fusion, which he performed on January 25, 2005. (R. 305-08, 312-15, 378). After the procedure, Plaintiff's pain was well-controlled on Oxycontin, Toradol, and Vicodin. (R. 309-10). X-rays and CT scans taken on February 21, April 17, and June 13, 2005 were all normal, and Plaintiff reported doing "well" or "very well" throughout this period with physical therapy. (R. 298-300, 377-78). Indeed, Dr. DePhillips's June 15, 2005 treatment note makes no mention of pain whatsoever. (R. 377).

Approximately one month later, on July 13, 2005, Plaintiff complained to Dr. DePhillips that his pain had "not improved." (R. 376). Dr. DePhillips instructed him to stop physical therapy and obtain new X-rays and CT scans of the lumbar spine. (Id.). The July 15, 2005 tests both showed that the fusion remained solid with no disc protrusion or spinal stenosis, and that the alignment of the lumbar spine was normal. (R. 295, 297). At a follow-up visit with Dr. DePhillips on August 17, 2005, Plaintiff had "improved clinically," and the doctor recommended that he resume physical therapy. (R. 376).

The following month, on September 19, 2005, Dr. DePhillips remarked that Plaintiff was doing "extremely well," and was experiencing "more of a stiffness and discomfort" than pain. (Id.). The same day, Plaintiff's physical therapist documented that he had full lumbar range of motion with no pain, he was lifting objects up to forty pounds, and his core strength was progressing well.

(R. 348). On October 17, 2005, Plaintiff had another X-ray that again showed the lumbar spine was "[s]table" following surgery with normal lumbar alignment. (R. 294). Dr. DePhillips reviewed the results with Plaintiff that day and agreed that "the fusion appears to be taking very well." (R. 375). He instructed Plaintiff to continue with physical therapy even though Plaintiff complained that the activity was causing his pain to "worsen[] somewhat." (Id.).

During Plaintiff's October 17, 2005 physical therapy session, he exhibited full range of motion with no pain, minimal soft tissue restrictions, and full core strength, and he was able to lift up to 65 pounds. (R. 356). Despite this progress, Plaintiff missed his next 10 therapy sessions and was discharged from the program on November 10, 2005 "pending MD recommendations." (R. 347). Dr. DePhillips then placed Plaintiff in a more strenuous work conditioning program beginning November 21, 2005. (R. 375).

On January 16, 2006, Plaintiff notified Dr. DePhillips that the work conditioning was aggravating his low back pain. (Id.). Dr. DePhillips ordered another lumbar CT scan at that time, noting that "[i]f the fusion is solid, I will declare maximum medical improvement and release [Plaintiff] to return to work with restrictions." (Id.). Plaintiff's January 31, 2006 CT scan confirmed that the surgical fusion at L5-S1 was "near anatomic," just as it had been on July 15, 2005. In addition, Plaintiff exhibited the same "mild to moderate spinal stenosis . . . related to disc bulging and hypertrophy of the posterior elements" at L4-L5, and "[m]ild bilateral foraminal narrowing . . . at L3-4 and L4-5 related to degenerative changes." (R. 292). The following month, on February 6, 2006, Plaintiff told Dr. DePhillips that he could not complete the prescribed work conditioning because it aggravated his back pain. (R. 375). Though Plaintiff was doing "fairly well" at that time, he complained of "residual pain and tightness." (Id.). Dr. DePhillips "declared maximum medical improvement" and referred Plaintiff for a functional capacity assessment. (Id.).

Michael S. Gadomski of ATI Physical Therapy conducted a KEY Functional Assessment of Plaintiff on April 5, 2006. (R. 327). The test showed that Plaintiff was capable of working at a "VERY HEAVY Physical Demand Level," meaning he could: frequently lift 50-60 pounds; occasionally lift over 100 pounds; sit and stand for 8 hours a day; walk for 6 to 7 hours a day; and frequently bend, stoop, squat, crawl, climb stairs, crouch, kneel and balance. (R. 327, 329). Based on this assessment, Dr. DePhillips cleared Plaintiff to work as an airport security officer "without reservation" as of April 12, 2006. The doctor stated that Plaintiff had no significant low back pain and would be able to stand for 2 to 4 hours at a time, run in emergencies even over uneven terrain or over long distances, and frequently climb, bend, jump, and lift heavy objects, though "repetitive heavy lifting would not be recommended." (R. 373-74). Dr. DePhillips also determined that Plaintiff's medication regimen would not prevent him from using firearms on a regular basis. (R. 373). c. Unsuccessful Work Attempt and Relapse (May 2006 through January 2007)

Plaintiff returned to work at O'Hare International Airport on May 19, 2006, where he spent six weeks sitting overnight at an exit on limited duty. (R. 149). After that time, he resumed full duty work, including bending and repetitive lifting of at least 70 pounds. (R. 149, 151, 372). In July 2006, Dr. DePhillips sent Plaintiff for another CT scan. (R. 290-91, 325-26). Compared to the scan taken on January 31, 2006, the July 11, 2006 scan showed "[m]oderate generalized disc protrusion" at L4-L5 that "appear[ed] slightly larger than on the prior study."

(R. 291, 326). The new scan also showed "some ligamentous hypertrophy and some facet bony overgrowth" that "appear[ed] to contribute to a mild to moderate degree of central spinal stenosis which is slightly progressed" from the January 2006 scan. (Id.).

During a follow-up visit with Dr. DePhillips on July 12, 2006, Plaintiff complained of low back pain with worsening numbness in both legs, noting the repetitive heavy lifting requirements of his newest job assignment. (R. 372). Dr. DePhillips indicated that this violated Plaintiff's work restrictions and placed him on the "same restrictions, as previously." (Id.). Dr. DePhillips also observed that Plaintiff "continue[d] to do well," and that the CT scan taken the previous day confirmed that his spinal fusion remained solid and intact. (Id.).

Approximately one month later, on August 9, 2006, Dr. DePhillips wrote a note stating that Plaintiff was "totally disabled" and "not capable of meaningful employment." He did not explain this finding, but instructed Plaintiff to return in 4 to 6 weeks for another radiographic assessment. (Id.). Six days later, on August 15, 2006, Plaintiff quit his job as an airport security officer. (R. 149). When Plaintiff saw Dr. DePhillips again on September 13, 2006, he complained of "lower back pain with pain and numbness radiating into the right lower extremity."

(R. 372). A CT scan of the lumbar spine taken that day was "normal with anatomical alignment," (R. 289), but Dr. DePhillips indicated that "[o]n examination [Plaintiff] has diminished mobility in the lumbar spine." (R. 372). Dr. DePhillips reiterated that Plaintiff was "totally disabled and unable to carry out meaningful employment," gave him a prescription for oxymorphone, and told him to return in 2 to 3 months for a follow-up evaluation. (Id.). Six days later, Plaintiff applied for disability benefits.

At his December 13, 2006 exam with Dr. DePhillips, Plaintiff continued to complain of lower back pain with pain and numbness radiating into his right leg. He also told Dr. DePhillips that he had fallen twice when his right leg gave out.

(R. 406). Dr. DePhillips ordered additional CT and MRI scans and noted that Plaintiff was an excellent candidate for a spinal cord stimulator. (Id.). Plaintiff's December 20, 2006 MRI showed "some mild to moderate transfacetal narrowing due to ligamentous hypertrophy and facet bony overgrowth." (R. 434-35). There was no significant disc protrusion or spinal stenosis, but Plaintiff did exhibit "[m]ild encroachment . . . to the neural foramina bilaterally." (R. 435). A CT scan taken the same day showed a "near anatomic" surgical fusion at L5-S1, "mild to moderate spinal stenosis" at L4-L5 "related to mild disc bulging . . . and mild hypertrophy," and "[m]inimal degenerative changes . . . elsewhere in the lumbar spine." (R. 436).

On January 15, 2007, Plaintiff told Dr. DePhillips that his pain was now radiating into both of his legs, his buttocks, and his posterior thighs. Dr. DePhillips again discussed the possibility of inserting a spinal cord stimulator to control the pain. (R. 438). Approximately two weeks later, on January 31, 2007, Paul Smalley, M.D., completed a Physical Residual Functional Capacity Assessment ("RFC") of Plaintiff for the Bureau of Disability Determination Services ("DDS"). (R. 440-47). Dr. Smalley found that Plaintiff could occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, sit, stand and/or walk for 6 hours in an 8-hour workday, and push and/or pull without limitation. (R. 441). Plaintiff could never climb ladders, ropes or scaffolds, but he could frequently balance and occasionally climb stairs and ramps, stoop, kneel, crouch and crawl. (R. 442). d. Pain Management (May 2007 through August 2008)

More than three months later, on May 7, 2007, Dr. DePhillips recommended that Plaintiff undergo bilateral facet blocks at L4-L5 to help with pain. He also scheduled Plaintiff for another CT scan. (R. 506, 513). The results from that May 14, 2007 scan were once again largely unchanged, showing that the spinal fusion was still stable, and there was mild to moderate central canal stenosis at L4-L5. (R. 506).

Shortly thereafter, on May 25, 2007, Plaintiff started seeing Dr. Samir Sharma of the Pain and Spine Institute for pain management. (R. 596-98). Dr. Sharma administered lumbar facet injections on May 30, 2007, (R. 593-95), but Plaintiff told Dr. DePhillips on June 6, 2007, that they were not helping. (R. 513, 593-95). Based on Plaintiff's continued complaints of pain, Dr. DePhillips determined that Plaintiff had "permanent muscle and ligamentous damage as well as nerve damage," ...

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