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Lee A. Draper v. Carolyn W. Colvin

April 24, 2013


The opinion of the court was delivered by: Richard Mills, U.S. District Judge:


Pending are Motions for Summary Judgment filed by the Plaintiff and the Defendant.*fn1


Plaintiff Lee A. Draper filed a Complaint, wherein he requested that the Appeals Council's decision denying the request for review of the Administrative Law Judge's (ALJ) denial of his claims be reviewed, reversed and set aside. The Plaintiff requests that the Court allow his claim for a period of Disability and Disability Insurance Benefits from June 24, 2009 to the present, and in the future. In support of the claim, the Plaintiff contends that the ALJ did not follow the applicable regulation in finding that he was able to perform sedentary work and in considering the credibility of the evidence of the documented side effects of the Plaintiff's medications in determining he was able to perform sedentary work. The Defendant Commissioner of Social Security ("the Commissioner") contends substantial evidence supports its decision.


A. Medical Evidence

On July 30, 2009, the Plaintiff filed applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI), wherein he alleged he became disabled on June 24, 2009 due to back injuries, high blood pressure, and nerve problems in the leg and hand. His claims were denied initially and upon reconsideration. A timely request for hearing was filed. On December 2, 2010, the Plaintiff appeared and testified at a video hearing before an ALJ. Linda M. Gels, a vocational expert, also testified at the hearing.

At the time of the hearing, the Plaintiff was 47 years old and a high school graduate. The Plaintiff's past relevant work was that of Construction/Laborer.

In September 2008, the Plaintiff saw Gordon K. T. Chu, M.D., and reported complaints of lower back pain that radiated down the left and right legs but that was worse on the left side. On examination, Dr. Chu noted that Plaintiff's strength in the lower extremities was 5/5 bilaterally and sensation was normal to light touch and proprioception, but there were no knee or ankle jerks. Straight leg raising was negative and the cardiovascular, respiratory and abdominal exams were all within normal limits. Dr. Chu noted that the magnetic resonance imaging (MRI) scan of the lumbar spine showed a lumbar scoliosis with a left-sided concavity at L2-3, and a right-sided concavity at L4-5. Dr. Chu did not believe that Plaintiff needed surgical intervention and he recommended epidural injections at L-3-4, L4-5 and L-5S1, which had previously worked for the Plaintiff. Dr. Chu further recommended that Plaintiff receive the injections every three to four months.

In October 2008, the Plaintiff saw Bart Wetzel, M.D. for lumbar epidural injections.

In January 2009, the Plaintiff saw Joseph Williams, M.D., at the Orthopaedic Center of Illinois for low back pain. He had been referred to Dr. Williams by Ross Billiter, M.D., his family physician. On examination, the Plaintiff's muscle strength was 5/5 throughout the lower extremities, his calves were soft and non-tender, sensation to light touch was grossly intact, his gait was normal, and his straight leg raise test was negative bilaterally. Dr. Williams assessed the Plaintiff as having chronic lower back pain and lumbar spondylosis. He did not believe the Plaintiff was a candidate for surgery at the time. The Plaintiff had degenerative changes present at every level and had no significant findings consistent with nerve root compression or central stenosis. Therefore, Dr. Williams recommended that Plaintiff be evaluated by a physiatrist.

In February 2009, the Plaintiff returned to the Orthopaedic Center of Illinois and was seen by John Watson, M.D., for back and bilateral leg pain. Dr. Watson assessed the Plaintiff as having lumbar degenerative disc disease, worse at L5-S1 with severe neural foraminal narrowing in a bilateral L5-S1 radiculopathy; lumbar degenerative disc disease early at L2-3; and chronic pain with chronic opiate therapy. Dr. Watson recommended a bilateral S1 transforaminal epidural steroid injection, which the Plaintiff received on February 20, 2009. His post-injection diagnosis was lumbar degenerative disc disease with bilateral lower extremity radiculopathy.

In January 2009, the Plaintiff told Dr. Billiter that the epidural injections at first helped to relieve his pain. By July 2009, the Plaintiff reported to Dr. Billiter that the injections had not helped and he wished to see Dr. Russell, who had been recommended by a friend. On August 14, 2009, Dr. Billiter noted that Plaintiff's straight leg raise was not too bad, his patella reflexes were symmetrical and he could walk on his heels and toes.

In October 2009, the Plaintiff had an electromyogram/nerve conduction velocity (EMG/NCV) study performed, which showed a mild subacute to chronic left LS radiculopathy with evidence of reinnervation without denervation. In November 2009, the Plaintiff saw Dr. Brian Russell for follow-up on his lumbar disc degeneration. Dr. Russell observed that Plaintiff did not appear to have much improvement with conservative measures and his EMG/NCV showed LS root irritation. The Plaintiff told Dr. Russell he wished to consider surgery. Dr. Russell talked with him about the risks involved with doing a micro decompression at the L4-5 and 5-1 levels. The Plaintiff wished to proceed with surgery in the near future.

On October 29, 2009, the Plaintiff appeared for a consultative examination with Raymond Leung, M.D., at the request of a state agency. The Plaintiff reported disability due to hypertension and low back pain. On physical examination, Dr. Leung noted that Plaintiff walked with a mild limp and his gait was stiff. He could tandem walk, heel and toe walk, but made no attempt to hop. Straight leg raising in the left leg was limited to 30 degrees and the right leg was limited to 40 degrees. The Plaintiff had decreased range of motion in the lumbar spine but his arm, leg and grip strength were 5/5 throughout and he had no difficulties getting on and off the exam table. Based on the examination, Dr. Leung diagnosed the Plaintiff with hypertension and back pain.

An MRI of the lumbar spine performed on November 9, 2009 showed severe degenerative changes, most significant at the L5-S1 level with severe bilateral neural foraminal stenosis and the L4-L5 level with moderate to severe right lateral recess stenosis.

On November 23, 2009, Dr. Russell performed a decompressive micro-laminotomy, L4-5, L5-S1, with microdiskectomy and a foraminal decompression at L5-S1. At his first post-operative visit on December 11, 2009, the Plaintiff appeared to be doing very well and did not have any significant radiating leg pain. Dr. Russell noted that Plaintiff was free to drive, though he should not do any heavy lifting or strenuous activity. An x-ray of the lumbar spine in January 2010 showed moderate to severe diffuse degenerative changes that was most prominent at the L-2--L-3 and L5-S1 levels.

In January 2010, the Plaintiff reported to Dr. Russell that he fell while emerging from the bathtub and now had pain in his back, left hip, and proximally into his left leg. The x-rays did not show any fractures and there was no unusual instability. Dr. Russell observed that Plaintiff did have some paraspinous muscle spasms and initiated a course of physical therapy with some local modalities. At a follow-up visit in February 2010, the Plaintiff reported that while the therapy did help, it did not completely resolve the discomfort in his left leg. An MRI on March 3, 2010 showed multilevel degenerative and postoperative changes.

On July 22, 2010, the Plaintiff had a posterior lumbar interbody fusion, L4 to sacrum; lumbar diskectomy; and interbody spacer placed at L5-S1 performed by Dr. Russell and Dr. Stephen Pineda. He received physical therapy twice a week after his back surgery. His therapist observed that Plaintiff had been compliant with all physical therapy recommendations and his plan of care. The therapist noted on October 29, 2010 that Plaintiff had shown progress with decreasing pain, improving posture, improving gait abilities, and improving dynamic lumbar stability. At a follow-up visit with Dr. Russell on August 4, 2010, the Plaintiff denied any significant right-sided symptoms but did report still having some pain in the left side of his back. By August 20, 2010, Dr. ...

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