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Richard Warren Merrill v. Michael J. Astrue

September 13, 2012


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


Michael T. Mason, United States Magistrate Judge:

Claimant, Richard Merrill ("Merrill" or "claimant"), has brought a motion for summary judgment [23] seeking judicial review of the final decision of the Commissioner of Social Security (the "Commissioner"). The Commissioner granted in part and denied in part Merrill's applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act (the "Act"), 42 U.S.C. §§ 416(i), 423(d), and 1382c(a)(3)(A). The Commissioner filed a response [29] asking that we uphold the decision of the Administrative Law Judge ("ALJ"). We have jurisdiction to hear this matter pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, Merrill's motion for summary judgment [23] is denied and the decision of the ALJ is affirmed.


A. Procedural History

Merrill filed his applications for DIB and SSI on April 15, 2008, alleging an onset of disability on June 25, 2004. (R. 151-164.) The Social Security Administration denied Merrill's claims initially on June 20, 2008, and upon reconsideration on September 12, 2008. (R. 95-109, 112-13.) Merrill then requested a hearing, which took place on December 4, 2009 before ALJ Curt Marceille. (R. 29-94.)

On January 17, 2010, ALJ Marceille issued a written decision finding that Merrill was disabled for purposes of the Act beginning on May 21, 2009, his fiftieth birthday, but not prior to that date. (R. 11-25.) Merrill filed a timely request for review (R. 6.) The Appeals Council denied that request on December 17, 2010, making the ALJ's decision the final decision of the Commissioner. (R.1-3); see Jirau v. Astrue, 715 F. Supp. 2d 814, 823 (N.D. Ill. 2010). Merrill subsequently filed this action in the District Court. The parties then consented to this Court's jurisdiction pursuant to 28 U.S.C § 636(c) [21].

B. Medical Evidence

Merrill alleges he became disabled after suffering injuries at work as an auto glass technician in February and June of 2004. (R. 364.) He has complained of, and sought treatment for, intractable lower back pain ever since those injuries. Merrill's primary treating physician is Dr. George E. DePhillips, who referred Merrill to a number of other practitioners for physical therapy and pain management, among other things. We address Merrill's treatment records below.

1. Treating Physicians

A June 11, 2004 MRI of the lumbar spine revealed no sign of canal stenosis or foraminal narrowing, but did show a focal annular tear and disc protrusion at L5-S1, which "may be mildly encroaching" upon the left S1 nerve root. (R. 719.) Moderate degenerative disc desiccation at L5-S1 was also noted. (Id.) An MRI of the thoracic spine revealed moderate degenerative disc changes at T4-T5 and T6-T11, and focal central disc protrusion at T4-T5 "encroaching upon the cord." (R. 722.) Milder disc protrusions without significant encroachment were noted at T5-T6 and T6-T7. (Id.) There was again no sign of canal stenosis or foraminal narrowing. (Id.) Cervical spine imaging showed moderate canal stenosis at C6-7, "post fusion C5-6," and a focal central disc bulge at C2-3 without significant encroachment. (R. 732.)

On June 30, 2004, Dr. DePhillips referred Merrill for physical therapy and would continue to refer him for therapy throughout 2006. (R. 398.) Many, if not all, of the physical therapy records appear to have been forwarded to Dr. DePhillips for review. During Merrill's first round of therapy sessions, from July 9, 2004 through August 27, 2004, Merrill expressed frustration with his inability to perform activities of daily living due to his pain, and showed minimal improvement. (R. 393, 394, 396.) The therapist noted limited flexibility and range of motion. (R. 394, 396.)

On July 6, 2004, Merrill visited Dr. Mauricio Orbegozo at Dr. DePhillips' request.

(R. 810-11.) Merrill complained of low back and left lower extremity pain, which he rated a seven out of ten, and described as an "ache alternating with a sharp, stabbing pain." (R. 810.) At that point Merrill had taken Darvocet and Flexeril for pain relief. (Id.)Dr. Orbegozo's physical exam revealed primarily normal results. (R. 810-811.) Dr. Orbegozo did note a positive straight leg test on the left side at about 25 degrees. (R. 811.) He also noted that Merrill has "a very painful range of motion of his lumbar spine, particularly with flexion." (Id.) There was "positive facet pain bilaterally." (Id.) Dr. Orbegozo assessed lumbar degenerative disc disease and lumbar facet arthropathy, and gave Merrill a lumbar epidural steroid injection. (R. 811.) He then referred Merrill back to Dr. DePhillips to determine whether surgery would be necessary. (Id.)

On July 29, 2004, Dr. Milena Appleby conducted a nerve conduction study at the request of Dr. DePhillips. (R. 695-99.) There were no signs of radiculopathy. (R. 696.) A post-discogram CT on September 21, 2004 revealed unremarkable results at the L3-L4 intervertebral disc, but showed evidence of degeneration at L4-L5 and L5-S1. (R. 290-94.)

On November 23, 2004, due to "failed conservative treatment," including the physical therapy and epidural steroid injections, Merrill underwent a decompressive lumbar laminectomy and spinal fusion at L5-S1 with "interbody bone graft arthrodesis and pedicle screw segmental fixation." (R. 673, 717.) Post-operative imaging revealed that the screws, disc cages, and bony alignment were intact. (R. 706.) A follow-up MRI on December 22, 2004 showed minimal degenerative bony spurring at L3-L4 and L5-S1. (R. 747.)

Merrill underwent another round of physical therapy from January 25, 2005 through April 22, 2005. (R. 378.) By the end of those sessions, Merrill reported increased lumbar range of motion, but had admitted that he was "overdoing it at home."

(R. 380.) He demonstrated improved strength, but his muscles fatigued easily. (Id.) The therapist noted that Merrill would benefit from continuing physical therapy "to address remaining deficits and progress towards max functional capabilities and potential to [return to work] safely and effectively." (Id.) It appears, however, that Merrill did not follow-up with the physical therapy center at that time. (R. 378.)

Imaging of the lumbar spine on February 28, 2005 showed post-operative changes at L5-S1. (R. 702.) The vertebral alignment was normal. (Id.) Similar findings were noted on April 25, 2005 and May 3, 2005. (R. 700, 751.) A post-discogram CT on June 14, 2005 showed post surgical changes "with posterior spinal fusion at the L5-S1 level." (R. 284-87.) Imaging from September 28, 2005 revealed that there was no disc herniation or significant spinal stenosis and the hardware was intact. (R. 724-27.) On November 7, 2005, surgical fusion changes were redemonstrated at L5-S1 and the bony alignments appeared "near anatomic." (R. 715.) There were mild degenerative changes of the thoracic spine. (R. 712.)

On November 22, 2005, approximately one year after his spinal fusion, Dr. DePhillips admitted Merrill for a second surgery to explore the fusion and perform a probable revision at the L5-S1 level. (R. 665-66.) The operative report reveals that while Merrill initially recovered well from his spinal fusion, over the previous three to six months, he had developed progressively worsening lower back pain. (R. 665.) A CT scan of the lumbar spine prior to the surgery revealed probable pseudoarthrosis and failed fusion at the L5-S1 level. (Id.) Ultimately, the surgeons revised the fusion by removing the old hardware and installing new hardware. (Id.) Follow-up imaging on December 19, 2005 revealed post-surgical changes and normal lumbar alignment. (R. 801.) All remained intact as of February 27, 2006. (R. 800.)

On May 8, 2006, imaging revealed a posterior metallic, posterior bony, and interbody fusion between L5 and S1. (R. 799.) A laminectomey defect was noted at L5. (Id.) Stable post-surgical changes were noted on July 17, 2006. (R. 798.) By October 3, 2006, some granulation tissue was believed to be present within the epidural fat at the fusion level. (R. 796-97.) Minimal spinal stenosis was "noted at the L4-5 level related to mild disc bulging and hypertrophy of the posterior elements with a mild bilateral foraminal narrowing present at L4-5 as well." (R. 797.) An MRI on November 28, 2006 revealed mild transfacetal stenosis at L4-L5. (R. 794.) Similar findings were noted on June 6, 2007. (R. 791-93.)

Merrill participated in physical therapy throughout 2006 and continued to complain of pain. (R. 449.) On May 5, 2006, the therapist noted that Merrill remains very active at home caring for his two-year old, which might be "flaring up his symptoms." (Id.) By June 6, 2006, Merrill had reported improvement with stairs and activities of daily living. (R. 448.) Later that summer, Merrill reported a decrease in his symptoms due to epidural injections, but continued to demonstrate low back mobility.

(R. 591.) On October 25, 2006, the therapist noted that despite sixty-nine sessions, Merrill had shown no objective or subjective progress. (R. 568.) He recommended that Merrill participate in a work conditioning program. (Id.)

Merrill promptly began the work conditioning/hardening program on November 1, 2006. He participated in that program for five weeks until he was placed on "hold" status. (R. 308-11, 355.) Throughout the program, Merrill continued to report low back pain and discomfort with all activities. (Id.) On December 19, 2006, Bryce Davis conducted a "Key Functional Assessment," the result of which was to be a "valid representation of [Merril's] present physical capabilities." (R. 313-23.) During the assessment, Merrill demonstrated functional capacities at the medium to heavy level of physical demand. (R. 313.) Specifically, Davis contemplated that Merrill could occasionally lift and carry seventy-five pounds and frequently lift and carry thirty to thirty-five pounds. (Id.) Davis also recommended that Merrill be limited to only occasional kneeling, crawling, stooping, bending, squatting, rotating, walking, and standing. (R. 313, 315.) Davis further noted that Merrill had significant complaints of pain throughout the assessment. (R. 313.) Ultimately, Davis recommended that Merrill participate in a structured independent exercise program. (R. 313.)

On July 24, 2007, Merrill underwent another surgical exploration of the fusion with Dr. DePhillips due to his progressively worsening back pain. (R. 656.) Merrill proceeded with this surgery despite his recent CT scans, which demonstrated a solid fusion. (R. 661.) The surgery revealed "evidence of excellent fusion and no evidence of reaction to the metal." (R. 663.) During the surgery, the L5-S1 posterior plate and screw instrumentation was removed. (R. 663.)

Dr. DePhillips' treatment notes reveal that Merrill returned to his office on August 29, 2007 for a follow-up evaluation. (R. 925.) Merrill complained of coccygeal pain, hip pain, and bilateral leg weakness and fatigue. (Id.) He voiced similar complaints at his monthly appointments with Dr. DePhillips through January of 2008. (R. 925-27.) Dr. DePhillips prescribed aquatherapy, which failed to provide significant pain relief. (R. 926-27.) On December 17, 2007, Dr. DePhillips ordered an MRI of the lumbar spine to assess the disc above the fusion. (R. 927.) An MRI of the lumbar spine dated January 14, 2008 revealed a mild amount of epidural fibrosis related to post-surgical change, but no significant spinal stenosis. (R. 786.) Additional imaging from that same date showed mild degenerative changes. (R. 788.)

On January 16, 2008, Dr. DePhillips stated that Merrill had "reached maximum medical improvement" and recommended that Merrill apply for disability benefits. (R. 927.) In Dr. DePhillips' opinion, Merrill "remains unemployable" because he could do no repetitive bending, twisting or stooping; could sit and stand for only thirty minutes before needing a ten minute change of position; could occasionally lift five to ten pounds; and could do no frequent lifting or overhead work. (Id.) Dr. DePhillips also noted that the recent MRI revealed "worsening internal disc disruption at the L4-L5 level above his fusion, which in [Dr. DePhillips' opinion] will progressively worsen over the next 5-10 years and require further treatment... ." (Id.)

Merrill returned to see Dr. DePhillips on April 16, 2008 and continued to complain of lower back pain. (R. 928.) Merrill did report that on a recent vacation to Arizona, he experienced some relief due to lower humidity and warmer temperatures. (Id.) Dr. DePhillips again stated that Merrill remains "permanently and totally ...

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