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Nimmerrichter ex rel. Nimmerrichter v. Colvin

United States District Court, N.D. Illinois, Eastern Division

November 14, 2013

MARIANNE NIMMERRICHTER, for LIBOR NIMMERRICHTER, deceased, Plaintiff,
v.
CAROLYN COLVIN [1], Commissioner of Social Security, Defendant

Page 959

[Copyrighted Material Omitted]

Page 960

For Marianne Nimmerrichter, for Libor Nimmerricheter, deceased, Plaintiff: Steven J. Plotkin, Evanston, IL.

For Michael J. Astrue, Commissioner of The Social Security Administration, Defendant: SSA, LaShonda Annette Hunt, LEAD ATTORNEYS, United States Attorney's Office (NDIL), Chicago, IL.

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MEMORANDUM OPINION AND ORDER

Jeffrey Cole, UNITED STATES MAGISTRATE JUDGE.

Following several unsuccessful suicide attempts, the plaintiff, Libor Nimmerrichter, finally took his own life on January 28, 2009. His widow, Mari, seeks review of the final decision of the Commissioner (" Commissioner" ) of the Social Security Administration (" Agency" ) denying Libor's application for Disability Insurance Benefits (" DIB" ) under Title II of the Social Security Act (" Act" ), 42 U.S.C. § § 423(d)(2). Mrs. Nimmerrichter asks the court to reverse the Commissioner's decision, while the Commissioner seeks an order affirming the decision.

I.

PROCEDURAL HISTORY

Mr. Nimmerrichter applied for DIB on January 17, 2008, alleging that he had become disabled on September 1, 2003 due to back and neck pain and major depression. (Administrative Record (" R." ) 252-57). Prior to that, he worked for essentially his entire adult life as a union painter. (R. 287, 298). Mr. Nimmerrichter could no longer work in 2003. He suffered back and neck injuries in a motor vehicle accident in July 2003 (R. 536), which apparently had been a suicide attempt. (R. 40, 81). A second attempt followed shortly thereafter, this time by way of an overdose of prescription drugs. After being discharged from treatment for that, Mr. Nimmerrichter then made another attempt on his own life by turning the gas valve on and trying to hang himself. (R. 441, 444). Three years later, around the time of his father's death, he again tried to kill himself with a drug overdose. (R. 41, 1165). Finally, as already noted, he succeeded in taking his own life with a pain-killer overdose in January 2009. (R. 290).

Thereafter, Mr. Nimmerrichter's application for DIB was initially denied on April 9, 2008, and on reconsideration on July 11, 2008. (R. 108-09, 116-25). His attorney requested an administrative hearing and one was finally held on June 22, 2010, over a year after Mr. Nimmerrichter's suicide.

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Mrs. Nimmerrichter, represented by counsel, appeared before Administrative Law Judge, Joel Fina, and testified. (R. 72-107). A vocational expert also appeared and testified. A supplemental hearing was convened on August 17, 2010, at which a vocational expert and a medical expert testified. (R. 34-71). On September 23, 2010, the ALJ determined that Mr. Nimmerrichter was disabled for the beginning with his 50th birthday on February 28, 2008, until his death in January 2009. (R. 16-31). Prior to that, the ALJ felt that Mr. Nimmerrichter could have performed sedentary work, including jobs such as office clerk and surveillance system monitor. (R. 26-27).

This became the final decision of the Commissioner when the Appeals Council denied Mrs. Nimmerrichter's request for review of the decision on March 30, 2012. (R. 1-4). See 20 C.F.R. § § 404.955; 404.981. She has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).

II.

EVIDENCE

A.

The Medical Evidence

Mr. Nimmerrichter was thwarted by his back and neck and his depression. As for his back and neck, x-rays from LaGrange Memorial Hospital on October 1, 2003 showed multiple levels of degenerative disease in the cervical spine. There was foraminal osteophyte encroachment, greater on the left than right, as well as significant narrowing of the central spinal canal, most notably at the C6-7 level. In the lumbar spine, again, there were multiple levels of disc and facet degeneration, including a small to moderate-sized disc herniation toward the left side at the L4-L5 level with disc herniation material migrating inferiorly on the left side, into the lateral recess of L5, effacing the left S1 nerve root. (R. 535-36). Based on these findings, Mr. Nimmerrichter's treating physician and pain specialist, Dr. Ira Goodman, diagnosed cervical radiculopathy, cervical discogenic pain and lumbar facet arthroplasty. He treated Mr. Nimmerrichter with a series of translaminar epidural steroid injections. (AR 541).

After the injections were completed, Mr. Nimmerrichter had a cervical myelogram at Hinsdale Hospital in January 2004. The test showed moderate central spinal stenosis at C6-7 and milder central spinal stenosis at C5-6. There was truncation of the nerve sheath exiting the right neural foramina C5-6, as well as diminished filling of the nerve sheath exiting the C6-7 foramina bilaterally. At C5-6, hypertrophic and degenerative changes were apparent, resulting in severe right foraminal stenosis and mild left foraminal stenosis. At C6-7, there was right central disk protrusion which in conjunction with posterior endplate spurring, causing mass effect on the ventral thecal sac and flattening of the spinal cord, which resulted in moderate to severe central spinal canal stenosis. At C7-T1, hypertrophic and degenerative changes were demonstrated within the facet joints bilaterally. (R. 531-532). Diagnosis was: (1) moderate to severe central spinal stenosis and posterior endplate spurring and broad-based bulging annulus C5-6, resulting in mild central spinal stenosis, and (2) severe degenerative changes were demonstrated within the right uncovertebral joint, resulting in severe right-sided foraminal stenosis. (R. 532).

In February 2004, An EMG of the cervical spine revealed chronic, moderate radiculopathy at C6 and ongoing denervation.

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There was also chronic, severe median neuropathy of the right wrist, and chronic, mild neuropathy of the left wrist with ongoing denervation. (R. 528).

A radiological evaluation demonstrated disc space narrowing, endplate sclerosis and anterior spurring and multiple levels in the thoracic and lumbar spines. (R. 828). For years thereafter, plaintiff continued to experience pain in the neck and back. Dr. Goodman, continued to treat plaintiff for pain caused by these cervical and lumbar conditions. Steroids injections did not provide extended relief. He had good days and bad days. On bad days, his pain was 9/10. However, with attempts at work activities, his pain was consistently 10/10; it was the same with attempting to sleep. (R. 539-52; 5623-625; 744-776). Radiofrequency lesioning was also attempted, with similar results. (R. 553, 726-37, 740).

This long-term back and neck pain were coupled with Mr. Nimmerrichter's severe depression. There was the suicide attempt and hospitalization in July 2003. (R. 435-437). About two weeks after he was treated and released in stable condition, he tried to hang himself and also left the gas valve on. (R. 441, 444). He was admitted to Hinsdale Hospital and spent more than a week there. (R. 444-45). Mr. Nimmerrichter then came under the care of Dr. Akram Razzouk, who became his treating psychiatrist. (R. 417-25). Mr. Nimmerrichter attempted to take his own life yet again, by overdose, in 2006. (R. 1165).

In June 2008, about six months before Mr. Nimmerrichter finally succeeded in taking his own life, Dr. Razzouk completed a Medical Source Statement detailing the nature and severity of his patient's mental impairment. (R. 869-875). The psychiatrist determined that Mr. Nimmerrichter's ability to complete a normal workday and workweek without interruptions from psychological symptoms and to perform at a consistent pace was markedly limited. Mr. Nimmerrichter was also moderately limited in his ability to: maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances; sustain an ordinary routine without special supervision; work in coordination or proximity to others without being unduly distracted by them; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers without unduly distracting them or exhibiting behavioral extremes; respond appropriately to changes in the work setting; travel in unfamiliar places and use public transportation; set realistic goals and make plans.

Based on his extensive dealings with Mr. Nimmerrichter over the previous five years, Dr. Razzouk determined that he had " substantial losses" regarding his ability to respond appropriately to supervision and co-workers; the impairment had its onset in 2003; and the depression had been at this level of severity for at least 12 months. In explaining his assessment, he related that plaintiff had episodes of " severe depression," had several psychiatric hospitalizations and had attempted suicide in serious ways. Noting that plaintiff's physical pain was an additional factor limiting his ability to work, Dr. Razzouk concluded that " the physical and psychological demands of a job, dealing with employer expectations, co-workers, changes, deadlines, etc. increase his risk for relapse." (R. 869-875). Seven months later, Mr. Nimmerrichter was dead as a result of an oxycodone overdose. (R. 93-94, 290).

The Social Security Administration arranged for a consultative psychiatric exam

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with Dr. Herman P. Langner in March of 2008. Dr. Langner reported that Mr. Nimmerrichter had related a long history of depression, heard voices, had previously attempted suicide and had multiple psychiatric hospitalizations. Dr. Langner's diagnostic impression was depression NOS. He determined that Mr. Nimmerrichter's GAF was seriously restricted at 45.[2] (R. 823-26).

The Social Security Administration's nonexamining consultative psychologist completed a Psychiatric Review Technique form (" PRTF" ). (R. 834-846). The reviewing psychologist felt that Mr. Nimmerrichter's condition caused mild limitations in daily activities, moderate limitations in his ability to maintain social functioning, maintain concentration, persistence and pace, and resulted in 1-2 episodes of extended decompensation. He concluded that plaintiff did not meet the " C" criteria of the Listings of Impairments. (R. 844)

B.

The Administrative Hearing Testimony

1.

Mrs. Nimmerrichter's Testimony


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