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Thomas Misevich v. Michael J. Astrue

August 24, 2012


The opinion of the court was delivered by: Magistrate Judge Young B. Kim


Plaintiff Thomas Misevich applied for Social Security disability benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 423(d), 1382(c), claiming that his degenerative disc disease, joint disease, and hypertension preclude him from working. An Administrative Law Judge ("ALJ") concluded that Misevich's impairments are severe but not disabling and denied Misevich's application for benefits. Misevich challenges this denial in a motion for summary judgment. For the following reasons, Misevich's motion is granted insofar as it requests a remand:

Procedural History

Misevich applied for DIB and SSI in October 2007, alleging that he became disabled on September 1, 1999, due to degenerative disc disease and hypertension. (Administrative Record ("A.R.") 180-83, 184-86.) The Commissioner denied his applications in February 2008 (id. at 83-87, 88-92), and again on reconsideration in May 2008 (id. at 101-08).

Thereafter, Misevich requested and received a hearing before an ALJ. (Id. at 109-13.) On May 5, 2010, the ALJ issued a decision finding Misevich not disabled. (Id. at 12-22.) The Appeals Council denied Misevich's request for review on March 25, 2011 (id. at 1-3), making the ALJ's decision the final decision of the Commissioner, see Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008). Pursuant to 42 U.S.C. § 405(g), Misevich initiated this civil action for judicial review of the Commissioner's final decision. The parties have consented to the jurisdiction of this court pursuant to 28 U.S.C. § 636(c).


A. Summary of Medical Evidence

Misevich, who is 46 years old, suffers from degenerative disc disease. He also has a history of controlled hypertension. Beginning in 2001, Misevich began reporting back pain to his medical providers. (A.R. 458.) Radars taken of his chest and spine in 2002 revealed degenerative changes in Misevich's lower thoracic spine. (Id. at 485, 559, 587.) A CT scan of Misevich's thoracic spine demonstrated degenerative joint changes of the facet joints and prominent osteophytes*fn1 projecting from his T8 through T10 levels of his thoracic spine,*fn2 indicating degenerative disc change; the CT revealed no fractures, disc narrowing, malignment, or herniated disc throughout the lower thoracic spine. (Id. at 601.) A bone density scan performed around the same time showed that Misevich also suffered from osteopenia.*fn3 (Id. at 589-91.)

In early 2003, Misevich complained to Dr. William Mikaitis that he was experiencing back pain that was not improving. (Id. at 371-72.) In March 2003, a magnetic resonance imaging (MRI) test and radiology report disclosed a left-sided L5-S1 herniated disc. (Id. at 435-37.) Progress notes evaluating the MRI results noted that since November 2002, Misevich had experienced persistent radicular lower back pain that had increased in recent weeks and that he had a history of diffuse spine problems-cervical and thoracic-which had not yet required surgery, but had caused diffuse aching. (Id. at 530-31.) In May 2003, Misevich underwent a left L5-S1 microdiscetomy. (Id. at 331-33.) Dr. Steven Mather, who performed the procedure, noted that Misevich had experienced severe left leg and back pain for the last several weeks that had not improved with "conservative management." (Id. at 331.) In December 2003, Misevich continued to report back pain to Dr. Mikaitis (id. at 362), and later that month, he sought emergency medical treatment, complaining of lower back pain lasting about one month; an examination of his lumbar spine revealed no tenderness or spasm, intact sensory and motor functions, and normal gait and reflexes. (Id. at 692-94.) A radiology report from that visit noted that views of the thoracic spine showed satisfactory vertebral alignment and no evidence of acute injury, though spondylosis changes were evident.*fn4 (Id. at 423.)

Misevich underwent several tests in 2004 to assess his back pain. The first- an MRI, which occurred in January-suggested a benign hemangioma*fn5 on the right aspect of the T8 vertebral body, with an otherwise unremarkable thoracic spine exam. (Id. at 421-22.) A bone scan confirmed the existence of a benign hemangioma on the thoracic spine. (Id. at 413.) A June MRI spinal survey suggested mild canal stenosis*fn6 at the C3-C4 and C4-C5 levels based on the presence of prominent posterior marginal osteophytes, and at the C5-C6 and C6-C7 levels on the basis of focal central disc bulges; mild degenerative disc changes in the mid to lower thoracic spine without definite sign of canal stenosis; recurrent disc protrusion at L5-S1 on the left; and mild to moderate degenerative disc changes at L5-S1 and L4-5. (Id. at 401-04.)

The next year, in December 2005, Misevich sought emergency care for pain and swelling in his left knee, a condition that had persisted for a month and worsened with increased activity. (Id. at 716-19.) An examination revealed normal motor and sensory functions, but Misevich displayed an antalgic gait.*fn7 (Id. at 717.) An MRI of Misevich's lumbar spine later that month indicated a significant left posterolateral disc herniation at the L5-S1 level, with the existing nerve root compressed by the herniation; a diffusely bulging and partially degenerated disk at the L4-L5 level with minimal posterolateral disk protrusion; and a mild diffusely bulging disk at the L3-L4 level. (Id. at 743.) About six months later, in May 2006, a lumbar discogram and CT of the lumbar spine was performed, which indicated a radial tear on the left at the L4-L5 level and L5-S1 level. (Id. at 770-71, 806-08.) An MRI of the cervical spine done around the same time demonstrated degenerative changes throughout, and moderate central spinal stenosis at the C3-C4, C4-C5, and C6-C7 levels with mild to moderate central spinal stenosis at the C5-C6 levels. (Id. at 809-10.) An MRI of Misevich's thoracic spine done two months later showed the previously-discovered hemangioma and no evidence of significant spinal stenosis in the thoracic spine, but it noted anterior osteophytes at the T8-T9 and T9-T10 levels. (Id. at 811-12.)

Next, in February 2007, Misevich sought emergency medical treatment after falling and hitting his head. (Id. at 725-30.) He complained of headaches and dizziness; an inspection of his back revealed no tenderness, and normal upper and lower extremities. (Id. at 726.) A CT of Misevich's cervical spine revealed spondylotic changes of the spine with at least a moderate degree of central canal stenosis, most notable at the C3-C4 level. (Id. at 731, 753-54.) A CT of Misevich's thoracic and lumbar spine performed around the same time showed degenerative anterior osteophytes involving thoracic vertebral bodies and degenerative changes of the lumbar spine, predominantly at the L5-S1 level. (Id. at 733-34, 756.) A few months later, Misevich saw Dr. Ben Roitberg for spinal pain, describing it as "severe or horrible," but not using a specific term of describing a particular character for the pain. (Id. at 759.) The notes from the visit indicate that Misevich was taking Vicodin, Oxycodone, and eventually Demerol for pain control. (Id.) A total body bone scan done in July 2007 at Rush University revealed slightly increased activity in the lumbar spine on about L4 on the right side, which was consistent with degenerative joint disease. (Id. at 750-51.)

In January 2008, Dr. Richard Bilinsky, a state agency physician, reviewed Misevich's medical file and completed a Physical Residual Functional Capacity Assessment form. (Id. at 782-89.) Dr. Bilinksy opined that Misevich can occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, stand and walk for about six hours in an eight-hour workday, sit for about six hours in an eight-hour workday, and occasionally climb ladders, ropes, and scaffolds, and occasionally stoop, kneel, crouch or crawl. (Id. at 784.)

Later that month, Dr. Dinesh Jain wrote a letter to the Illinois Department of Human Services' Bureau of Disability Determination Services, evaluating Misevich's history and present symptoms. (Id. at 779-81.) Dr. Jain noted that Misevich had experienced low back pain since 2001, quantifying the intensity of the pain as an eight on a scale of 10, with 10 being the worst pain. (Id. at 779.) Misevich reported to Dr. Jain that despite his 2003 surgery, he continued to have radiating pain. (Id.) Misevich also reported pain in his midthoracic spine region, which he quantified as a seven out of 10. (Id.) An examination revealed no redness or swelling in his joints, normal range of motion along the joints of his upper and lower extremities, normal range of motion along his cervical spine, decreased range of motion of the lumbar spine due to the pain, and positive straight leg raising signs*fn8 with pain in his hip and left thigh. (Id. at 780-81.) Dr. Jain observed that Misevich used a cane to ambulate due to his back pain, but also noted that his gait was normal and that he displayed no difficulty with tandem walking. (Id. at 781.)

Four months later, on May 5, 2008, Dr. Mark Reiter, Misevich's treating physician since 2006, wrote a letter to the Social Security Administration ("SSA") describing Misevich's condition.*fn9 (Id. at 796.) Dr. Reiter stated that Misevich's severe disc disease of the lumbar and cervical spines markedly limit his ability to walk, climb, carry, lift, and stand. (Id.) He noted that Misevich could sit for "average periods" as long as he can change positions. (Id.) The doctor added that although Misevich had no mental defects, the pain medications he took to function made him "somewhat drowsy." (Id.) In August, Misevich underwent a second surgery, an L5-S1 laminectomy, for a lumbar fusion. (Id. at 899-901.)

Misevich continued to report back pain. An October 2009 x-ray of Misevich's lumbar spine showed shallow scoliosis of the thoracolumbar spine but no evidence of compression fracture. (Id. at 800.) In November 2009, Dr. Reiter completed a "Lumbar Spine Residual Functional Capacity Questionnaire." (Id. at 801.) Dr. Reiter diagnosed Misevich with accelerated osteoarthritis of the spine and knee; noted that Misevich had symptoms which included pain and back spasms and that x-rays and MRI's of his spine demonstrated his osteoarthritis, and gave a "guarded" prognosis, stating that further surgery may be required. (Id. at 802.) Dr. Reiter opined that Misevich can walk less than half a block without rest or severe pain, can continuously sit for 10 minutes and stand for five minutes at a time, can sit and stand less than two hours in an eight-hour workday, and can never lift or carry much, even if the weight is less than 10 pounds. (Id. at 803-04.) Dr. Reiter further opined that Misevich must walk every 10 minutes for five minutes at a time, must have a job that permits shifting positions at will, and must take three to four unscheduled breaks for five to 10 minutes during an eight-hour workday. (Id. at 803.) Dr. Reiter added that Misevich will likely be absent from work more than four times a month. (Id. at 805.) Further progress notes from Dr. Reiter noted that during a lumbar exam, Misevich demonstrated paralumbar spasm, positive straight leg raising at 30 degrees, and decreased reflexes at the ankles. (Id. at 819.) Later that month, Misevich underwent a CT of his cervical spine, which showed a mild compressive deformity of the C4 and C5 vertebral body, a fracture of spinous process of the T1 vertebral body, moderate central spinal stenosis at the C3-C4 and C4-C5 levels, moderate to severe spinal stenosis at the C5-C6 level, mild scoliosis of the thoracic spine to the right, and stable degenerative changes in the thoracic spine without significant central canal or foraminal stenosis. (Id. at 813-14.)

In February 2010, Dr. Reiter completed an "Arthritis/Pain Residual Functional Capacity Questionnaire." (Id. at 894-98.) Dr. Reiter noted that Misevich suffers from the early onset of severe degenerative disc disease and that his prognosis was "poor." (Id. at 894.) Dr. Reiter stated that Misevich suffered from severe chronic back and neck pain and that positive objective signs of his ailments included reduced range of motion in his back and neck, reduced grip strength, sensory and reflex changes, impaired sleep, abnormal posture, tenderness, muscle weakness and atrophy, an abnormal gait, and a positive straight leg raising test. (Id. at 894.) Dr. Reiter opined that Misevich could walk less than half a block without rest or severe pain, can sit for 15 minutes and stand for 20 minutes at a time, can sit and stand for less than two hours in an eight-hour workday, and can never lift or carry, even if the weight is less than ten pounds.*fn10 (Id. at 895.) Dr. Reiter noted that Misevich required a job that permitted shifting positions at will and was only comfortable when lying flat. (Id.)

B. Misevich's Testimony

At the hearing before the ALJ, Misevich testified that in 1999, he began experiencing severe, throbbing back pain. (A.R. 38.) The pain he experienced radiated from his back to his left leg. (Id. at 49.) Misevich testified that he had undergone three back injections to decrease the pain, but they did not help. (Id.) In 2003, he underwent surgery on his lumbar spine, which provided relief of the pain for about six months, before returning. (Id.)

To alleviate the continuous back pain and pain in his cervical spine, Misevich testified that he takes Demerol, which leaves him "very fatigued," "very drowsy," and "worn out." (Id. at 40-41, 57.) Misevich stated that the Demerol provides relief for about four hours-alleviating the pain about 70 percent-before it wears off and he has to take more. (Id. at 42, 57.) Prior to the Demerol, Misevich took a variety of pain medications-Vicodin, Norco, Oxycodone, and morphine sulfate, extended release-with varying degrees of success. (Id. at 40.) These medications, according to Misevich, left him unable to function and made him feel "like a zombie." (Id.) Misevich sees Dr. Reiter every three to four months to monitor his use of pain medication. (Id. at 41.)

Despite the pain medication-which Misevich qualified as somewhat alleviating the pain-he testified that he suffers from "horrible, chronic pain every day." (Id. at 40.) Misevich then described the limitations on his daily living as a result of the pain. He stated that he can only sit for seven to 11 minutes before the pain requires him to stand, and then stand for seven to 11 minutes before experiencing more pain; he can walk about half a block; and he can only lift about a maximum of five pounds. (Id. at 41-42, 46.) Misevich described lying flat as the only position that provides him relief from the pain. (Id. at 42.) He also testified that as a result of the pain, he must take a sleeping pill to fall asleep. (Id. at 46.) Misevich then described his current living situation and his daily activities: he lives in the basement of his parents' home; he does not assist his parents with shopping or chores because he cannot carry bags; he cannot sit in a car for more than 20 minutes unless he is lying flat, and if so, only for an hour; and he only socializes with his friends over the phone because he cannot leave the house due to the continuous pain he experiences. (Id. at 47, 56.)

C. Vocational Expert's Testimony

Vocational expert ("VE") Thomas Gusloff testified that Misevich's past relevant work as a shipping/receiving clerk constitutes medium-level and skilled work. (A.R. 62.) He described Misevich's past work as a material handler as constituting semi-skilled and heavy-level work, though he performed it at the medium level. (Id. at 63.) The ALJ asked Gusloff to consider a hypothetical individual with Misevich's age, education, and work experience who is capable of performing light work, occasionally climbing ramps, stairs, ladders, ropes, or scaffolds, and occasionally stooping, kneeling, crouching, and crawling. (Id.) Gusloff ...

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