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David Charles Foote v. Michael J. Astrue

September 7, 2012


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


MICHAEL T. MASON, United States Magistrate Judge.

Claimant David Charles Foote ("Foote" or "claimant") brings this motion for summary judgment seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied Foote's claim for Disability Insurance Benefits under Sections 216(i) and 223 of the Social Security Act (the "Act"), 42 U.S.C. §§ 416(i) and 423. The Commissioner filed a cross-motion for summary judgment requesting that this Court uphold the decision of the Administrative Law Judge ("ALJ"). This Court has jurisdiction to hear this matter pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, claimant's motion for summary judgment is denied and the Commissioner's cross motion for summary judgment is granted.

I. Background

A. Procedural History

Foote claims that he suffers from a neck injury as a result of an accident at work on May 3, 2002. (R. 237.) His date last insured was December 31, 2007. (R. 163.) He filed an initial application for Disability Insurance Benefits ("DIB") on July 20, 2004. (R. 101-04.) This application was denied on September 3, 2004 and claimant never appealed. (R. 45-46.) On January 3, 2007, Foote filed a second application for DIB, which is the subject of this appeal. (R. 109-15.) On April 12, 2007, the second application was denied. (R. 47, 54-58.) Foote filed a timely request for reconsideration on April 20, 2007, which was denied on June 19, 2007. (R. 48, 59-63.) Claimant filed a hearing request on June 26, 2007, and a hearing was held September 17, 2009. (R. 21-44, 65.) On October 23, 2009, the ALJ denied Foote's request for DIB. (R. 8-20.) Foote filed a timely request for review on November 10, 2009, which was denied by the Appeals Council on August 12, 2010, making the ALJ's decision the final decision of the Commissioner. (R. 1-7); Zurawski v. Halter, 245 F.3d 881, 883 (7th Cir. 2001); 20 C.F.R. § 416.1481. Foote subsequently filed this appeal.

B. Medical Evidence

1. Dr. Donald W. Piller

On May 3, 2002, the date of his accident, Foote sought treatment from a chiropractor, Dr. Donald W. Piller. (R. 237.) A few days later, on May 8, 2002, Dr. Piller diagnosed Foote with whiplash, subluxation 7C, and brachial radicullitis. (R. 238.) Dr. Piller noted that Foote was slowly responding to chiropractic care, and he released Foote to return to work. (R. 238, 240.) Claimant continued treatment with Dr. Piller over the next several weeks, during which time he complained of difficulty sleeping, left arm pain, limited range of motion, occasional burning sensation in the left elbow, and stiffness. (R. 235.) Dr. Piller referred claimant to Dr. George E. DePhillips, a neurologist, on June 10, 2002. (Id.)

2. Dr. George E. DePhillips

Dr. DePhillips began treating Foote for his injury beginning on June 19, 2002, and he continued to treat him through 2009. (R. 269.) On June 29, 2002, Dr. DePhillips noted that Foote complained of "pain in the left side of his neck radiating into his left arm and forearm with numbness and tingling in the second, third and fourth digits of his left hand." (R. 241.) Dr. DePhillips noted that a neurological examination revealed mild triceps weakness in the left upper extremity and a diminished left triceps reflex compared to the right. (Id.) Dr. DePhillips suspected a herniated disk at C6-C7 or C5-C6 level. (Id.)

On August 14, 2002, Foote saw Dr. DePhillips and reported that his neck and left arm pain had improved. (R. 267.) Dr. DePhillips recommended physical therapy for cervical modalities and strengthening exercises to help relieve claimant's pain. (Id.) Dr. DePhillips released claimant to light duty work and stated that claimant is "not capable of doing his normal job at this point in time." (Id.) On August 28, 2002, Foote returned to Dr. DePhillips for a follow up appointment and complained that his neck pain radiated to both extremities, more so in the left arm and forearm. (Id.) He also stated that his pain had worsened over the past few weeks, which claimant attributed to physical therapy. (Id.) As a result, Dr. DePhillips discontinued physical therapy and ordered a series of cervical epidural steroid injections. (Id.)

On November 13, 2002, Dr. DePhillips noted that Foote continued to complain of neck pain and arm pain, especially on the left side. (Id.) He also complained that his fingers were numb at times. (Id.) He was not working at the time. (Id.) Dr. DePhillips prescribed Vicodin and noted that Foote stated that Tylenol makes him "wired" and Darvocet causes nausea. (Id.)

Foote returned to Dr. DePhillips on February 26, 2003. (R. 268.) At this appointment, Foote stated that he continued to suffer from neck pain and stiffness, and pain radiating to his left arm. (Id.) Dr. DePhillips reported that he had recommended cervical epidural steroid injections, but that Foote's worker's compensation insurance was disputing the injury and refused to pay for any pain injections. (Id.) The report stated that Foote was working with a lawyer in order to resolve this issue. (Id.)

On August 3, 2003, Dr. DePhillips summarized claimant's recent visits in a letter to Foote's attorney. (R. 265-66.) Dr. DePhillips described claimant's chief complaint as neck pain that radiates into the left upper extremity with paresthesia in the second, third, and fourth digits of the left hand. (R. 265.) He also stated that a neurologic exam on June 19, 2002 revealed mild weakness of the left triceps motor group and left triceps reflex when compared to the right. (Id.) Dr. DePhillips detailed the results of a cervical spine ("c-spine") MRI, which showed mild degenerative disc disease with slight posterior disc bulging and protrusion at all levels from C3-C7. (Id.) The MRI showed no significant mass effect on the spinal cord or existing nerve root. (Id.) Dr. DePhillips further noted that he had placed Foote on light duty, that claimant continued to complain of pain at each visit, and that on one occasion his pain was described as a 3-4 out of 10. (R. 265-66.) Dr. DePhillips drafted a second letter to Foote's attorney after he examined Foote on August 28, 2003. (R. 264.) In this letter, Dr. DePhillips stated that Foote continued to complain of worsening neck and shoulder pain radiating to the right arm and forearm and that a recent MRI revealed protruding discs at C5-C6. (Id.)

Foote again returned to Dr. DePhillips on October 9, 2003 with continued complaints of neck and shoulder pain with numbness and tingling in both extremities.

(R. 261.) At this appointment, Dr. DePhillips gave claimant refills on pain medications and noted that Foote could not pay for his medical treatment because his group insurance had lapsed and his worker's compensation insurance was denying the claim. (Id.) Dr. DePhillips also stated that another doctor, Dr. Skaletsky, had seen claimant and believed that Foote did not suffer from discogenic pain, but rather a muscle sprain that should have improved. (Id.)

On October 22, 2003, Dr. DePhillips sent another letter to claimant's attorney. (R. 262-63.) In this letter, he clarified his previous narrative and stated that he had reviewed the records of Dr. Donald Piller, a chiropractor, and discovered that Dr. Piller had been treating claimant intermittently for the past twenty years for cervicalgia and cervical torticollis. (R. 262.) However, Dr. DePhillips noted that prior to the work injury, Foote had not seen Dr. Piller for several years. (Id.) Dr. DePhillips stated that Foote had "radiographic signs on the MRI scan of disk bulging and degeneration as well as bone spurring or osteophyte formation." (Id.) Therefore, Dr. DePhillips opined that Foote's work injury has "caused permanent exacerbation of his cervical spondylosis." (Id.) He stated that claimant should remain off work, and he concluded that Foote's condition would require further treatment. (R. 263.)

Foote next returned to see Dr. DePhillips on February 12, 2004. (R. 261.) He continued to complain of neck and shoulder pain with bilateral arm pain and numbness and tingling, rating his pain at times as a 9 out of 10. (Id.) Foote explained to Dr. DePhillips that he had not yet completed the discogram because his worker's compensation insurance had not yet approved it and that his attorney was working on getting his medical bills paid. (Id.)

On August 2, 2004, Dr. DePhillips completed an Illinois Bureau of Disability Form for claimant. (R. 258-59.) Dr. DePhillips stated that Foote complained of pain on the left side of his neck and in his left arm and forearm, and of numbness and loss of sensation in digits two, three and four on the left hand. (R. 258.) However, Dr. DePhillips also noted in this form that he had performed no physical tests for tenderness, weakness, reflex changes or sensory changes and whether Foote suffered from nerve root compression was unknown at this time. (Id.) He further noted that no tests had been performed to determine atrophy or range of motion of the spine. (Id.)

Dr. DePhillips stated that Foote may need an assistive device because his ambulation was not normal due to back pain. (Id.) He also noted that claimant was able to stand or walk for 15-minute intervals, needed to change position (for 10-20 minutes) more than once every 2 hours, and was restricted to lifting and carrying not more than 10 pounds.

(R. 259.)

On September 23, 2004, claimant continued to complain of neck and shoulder pain and numbness in both extremities. (R. 260.) On this date, Dr. DePhillips noted that a recent MRI revealed disk protrusions at multiple levels. (Id.) He recommended that Foote undergo surgery "in the form of spinal fusion," but that claimant would first need to complete a cervical discogram and a follow up MRI. (Id.) Dr. DePhillips released Foote to do sedentary work with light physical activity. (Id.)

Dr. DePhillips did not see Foote again until July 14, 2005, when Foote continued with the same pain complaints. (R. 416.) On this visit, Dr. DePhillips reiterated his recommendation that claimant undergo a discogram in order to determine the source and the levels of his pain. (Id.) He also ordered a follow up MRI. (Id.)

Dr. DePhillips saw Foote again on August 18, 2005. (Id.) Foote had his follow-up MRI scan of his cervical spine, which revealed degenerative disc disease at multiple levels. (Id.) He also noted a herniated disc at the C6-C7 level. (Id.) Foote's discogram revealed concordant pain at the C4-C5, C5-C6 and C6-C7 levels. (R. 415.) Dr. DePhillips believed his best surgical option was a four level cervical spinal fusion at levels C3-C7. (Id.)

On November 22, 2005, Foote was admitted to Community Hospital of Ottawa for his surgery. (R. 289-92, 443-46.) Just prior to surgery a history and physical exam was performed, in which Dr. DePhillips reported that cranial nerves two through twelve were intact, Foote's motor strength was within normal limits, his sensory examination was intact to pinprick, his deep tendon reflexes were symmetrical, and his gait and cerebellar exam were unremarkable. (R. 287-88.) A subsequent exam and x-ray on January 12, 2006 revealed that Foote was recovering "reasonably well" and showed "good position of the interbody cages"; however, claimant continued to report neck pain and burning in his shoulders. (R. 415.)

Foote returned to Dr. DePhillips for another follow-up appointment on March 9, 2006. At this appointment, Dr. DePhillips reported that Foote was doing reasonably well except for neck discomfort and loss of cervical mobility. (R. 415.) Dr. DePhillips stated that the fusion appears to be "taking well" and that Foote should begin physical therapy. (Id.)

Dr. DePhillips examined Foote again on April 13, 2006 and again reported that Foote was doing reasonably well, but continued to have neck pain and headaches. (R. 413.) Dr. DePhillips concluded that the physical therapy did not seem to be giving claimant strength or relief from his pain, however, claimant was to continue with the therapy and remain off work until his next appointment. (Id.) Dr. DePhillips also recommended a CT scan in order to assess the fusion. (Id.) This was performed on May 1, 2006 and revealed good anatomical alignment with mild degenerative changes, as well as mild to moderate neural foraminal stenosis at the C4-C5 and C5-C6 levels on the left. (R. 422-23.) Dr. DePhillips noted that no solid fusion was visible in the scan, and as a result, he modified Foote's therapy for four weeks. (R. 413.)

A follow-up CT of the c-spine was performed on August 22, 2006, which showed no significant interval change. (R. 424-25.) Dr. DePhillips noted that this scan showed a "potential psuedoarthrosis and lack of fusion." (R. 413.) At a subsequent follow-up visit on September 28, 2006, Dr. DePhillips noted that the most recent x-ray showed "good fusion at all levels with [the] exception perhaps of the C3-C4 level." (Id.) Dr. DePhillips stated that Foote continued to complain of residual neck pain and numbness radiating down both extremities. (R. 413.) Dr. DePhillips declared that Foote was totally disabled and unable to carry out meaningful employment. (Id.) Dr. DePhillips recommended waiting another 3-6 months and then reassessing claimant's condition before exploring the possibility of revising the fusion. (Id.)

Another CT of the c-spine was performed on November 29, 2006. (R. 409.) This scan revealed slight marginal spurring in a right paramedian to right lateral location at the C3-C4 level and the left paramedian location at C5-C6, but showed no evidence of significant encroachment on the spinal canal or neural foramina, and no malalignment. (Id.) Further, no bone destruction or significant soft tissue encroachment on the spinal canal was noted. (Id.)

Claimant was again seen on November 30, 2006. At that time, Dr. DePhillips noted that Foote continued to complain of neck pain, headaches, and bilateral upper extremity pain. (R. 411, 471.) Dr. DePhillips stated that the CT scan revealed that "the interbody fusions appear[ed] to be taking well at all levels" and there was "no evidence of pseudoarthrosis." (Id.) Dr. DePhillips opined that claimant had "lost significant cervical mobility," "was permanently and totally disabled" and "not capable of performing meaningful employment." (Id.) Dr. DePhillips provided Foote with a disability certificate indicating that he was to remain off work for approximately three months. (R. 412.)

On March 2, 2007, claimant returned to Dr. DePhillips for a follow-up visit with the same complaints of pain and occasional headaches, as well as burning in both upper extremities with associated numbness and tingling. (R. 471.) He rated his pain a 7 out of 10. (Id.) After reviewing x-rays of Foote's spine, Dr. DePhillips opined that "interbody fusions appear to have solidified" and he believed that Foote's persistent nerve root symptoms represented permanent nerve damage that occurred as a result of the injury. (Id.) Once again, he opined that Foote was permanently disabled and unemployable. (Id.) Dr. DePhillips noted that Foote did apply for disability benefits and that his application was pending. (Id.)

Dr. DePhillips saw Foote again on May 31, 2007. Dr. DePhillips noted that Foote continued to complain of neck pain, burning, and headaches. (R. 465-66.) At this time, Dr. DePhillips prescribed Norco, Ambien, Flexeril, Neurontin, and Valium. (R. 466.)

Dr. DePhillips also prescribed Oxycontin because Foote complained of difficulty sleeping. (R. 465.) Dr. DePhillips opined that claimant's condition has worsened, possibly due to failed fusion at C3-C4 and that he may need to undergo a revision. (Id.) He ordered a CT scan to further assess the fusion. (Id.)

On August 7, 2007, Foote underwent a Key Functional Assessment ("FCA"), the results of which were provided to Dr. DePhillips. (R. 482-83.) According to the FCA, Foote was able to perform work at a light activity level. (R. 482.) The report noted that Foote was not capable of resuming his previous employment as a truck driver, which is typically considered a medium physical demand level position. (Id.) The FCA recommended a 4-6 week work conditioning physical therapy program in order to increase strength and endurance, activity tolerance and overall functional abilities, while decreasing subjective pain reports. (Id.) Claimant was found to be capable of occasionally lifting 25 pounds and frequently lifting 11 pounds. (R. 484.) Claimant was also found to be able to sit and stand for 3 to 4 hours per day for 30 and 40 minute intervals respectively, as well as walk for 3 to 4 hours, for a total workday of 8 hours. (Id.) Foote was able to occasionally bend, stoop, squat, crawl and crouch, and frequently climb stairs, kneel and balance. (R. 484.) Additionally, Foote was able to frequently grasp with both hands, but minimally flex and rotate his head and neck. (Id.) The report noted that throughout the assessment, Foote had "numerous subjective pain reports/behaviors with virtually every aspect." (R. 422.)

Foote returned to Dr. DePhillips on October 26, 2007. (R. 513.) Dr. DePhillips reiterated his opinion that claimant was unemployable, but referred to the Key Functional Assessment recommendation for a work conditioning program. (Id.) Dr. DePhillips stated that he was not opposed to work conditioning, as long as claimant had three weeks of conventional therapy for stretching and strengthening exercises. (Id.) His notes also indicate that the FCA recommended that Foote be weaned off of his pain medications. (Id.) Dr. DePhillips refilled Foote's pain medications and stated that ...

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