United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
SHEILA FINNEGAN, Magistrate Judge.
Plaintiff Jaime Meza seeks to overturn the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416, 423(d), 1381a. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and filed cross-motions for summary judgment. After careful review of the record, the Court now denies the Commissioner's motion, and grants Plaintiff's motion.
Plaintiff applied for DIB and SSI on October 20, 2009, alleging that he became disabled on April 15, 2008. (R. 116, 123). His date last insured was September 30, 2009. (R. 19). His stated medical conditions included type 2 diabetes, high cholesterol, blood in his urine, and waist pain. (R. 141). The Social Security Administration ("SSA") denied the applications initially on January 12, 2010, and again on reconsideration on April 22, 2010. (R. 46-49). Pursuant to Plaintiff's timely request, Administrative Law Judge ("ALJ") Patricia A. Bucci held an administrative hearing on April 29, 2011. (R. 30). The ALJ heard testimony from Plaintiff, who appeared with counsel, and from vocational expert ("VE") Glee Ann L. Kehr.
On May 23, 2011, the ALJ found that Plaintiff remains capable of performing his past relevant work as a machine operator and, thus, is not disabled. (R. 16-26). The Appeals Council denied Plaintiff's request for review on August 3, 2012, and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. (R. 10-12). In support of his motion, Plaintiff argues that the ALJ erred (1) in assessing his RFC by rejecting the opinions of certain physicians that he was disabled and instead adopting a contrary opinion that he was capable of medium work; and (2) finding him incredible by (a) mischaracterizing the evidence supporting his allegations of fatigue and difficulty standing and walking, and (b) making an unreasonable inference based on his non-compliance with his treatment regimen.
Plaintiff was born on January 18, 1957, was 54 years old, and was living with his spouse at the time of the ALJ's decision. (R. 34-35; 116). He had worked as a machine operator for over 30 years until April 15, 2008, when he stopped working due to pain in his feet, an inability to pick up parts at work, and eyesight problems. (R. 34; 37-38; 40; 142). Plaintiff also cannot read or write in English. (R. 38).
A. Medical History
Plaintiff's earliest medical records are from his initial visit at PrimeCare Community Health ("PrimeCare") on August 16, 2008, where he was examined by a nurse practitioner, Celine Boers, APN/CNP. (R. 255). He stated he had been diagnosed with type 2 diabetes about "one or two years" prior to this visit, had a history of high cholesterol, and had been smoking cigarettes for about thirty years. (R. 230; 255). Plaintiff told Nurse Boers that his son was recently murdered, and since his son's murder he had experienced: difficulty taking deep breaths, especially at night; increased fatigue; headaches and lightheadedness; nausea; and excessive sweating. (R. 255). Nurse Boers examined Plaintiff's feet and found his reflexes were intact, but there was a loss of protective sensation. (R. 227). Nurse Boers recommended a variety of tests, including a complete metabolic panel that showed Plaintiff had high sugar levels, and a hemoglobin test that showed a high HbA1c. (R. 243-44). Plaintiff was prescribed aspirin for pain; metformin to treat diabetes; enalapril to treat high blood pressure; and lovastatin for high cholesterol. (R. 255).
Plaintiff returned to PrimeCare for follow-up appointments and blood, urine and lipids testing in December 2008, and in January and February 2009. (R. 238-42; 253-54). On one occasion, Plaintiff's tests were delayed because he reported not taking his medications, but later test results showed Plaintiff had high sugar, triglycerides and lipase levels despite taking his medications as prescribed. ( Id. ). As a result, Plaintiff's metformin prescription was increased and he was prescribed Niaspan to treat the high triglyceride/lipase levels. (R. 253-54). On February 16, 2009, Nurse Boers wrote a "To Whom It May Concern" letter with a summary of her medical concerns about Plaintiff, including that his diabetes was "severely uncontrolled" when she initially evaluated him in August 2008. (R. 194). Although with treatment he was "gradually improving, " his blood sugar levels were still not meeting her goal range for him of about 100 mg/dL. ( Id. ).
Plaintiff returned to PrimeCare for another follow-up with Nurse Boers several months later, on July 1, 2009, and reported he was taking his medications as prescribed. (R. 252-53). However, due to Plaintiff's abnormal testing results, including high cholesterol levels, his metformin and lovastatin prescriptions were doubled and he was given samples of Advicor (a once-daily proprietary combination of niacin and lovastatin, used to treat high cholesterol) to take in conjunction with his other medications. (R. 172; 237; 252). Nurse Boers also examined Plaintiff and completed a "Physician's Report" for the Illinois Department of Human Resources, stating that: Plaintiff's "chief complaints" were type 2 diabetes and high cholesterol; he had good responses from his enalapril; but he had "inconsistent availability" of some of his other medications, including metformin and Niaspan. (R. 195-99). She reported no abnormal examination results, but did state that she thought Plaintiff's ability to bend, stoop and climb were reduced up to 20% and that he could lift no more than 10 pounds at a time. (R. 196-99).
Over the next several months, Plaintiff's sugar and triglyceride levels remained high, and in September 2009 Plaintiff transitioned from oral medications to Lantus (a long-acting insulin) injections. (R. 236; 250; 252). About a month after these appointments, on October 20, 2009, Plaintiff applied for DIB and SSI. (R. 19; 116; 123). At follow-up appointments with Nurse Boers in December 2009, Plaintiff complained of back, leg, feet, arm, chest and stomach pain, increased fatigue, loss of appetite, dizziness and dry mouth. (R. 248-49). Plaintiff's wife reported that she was administering his insulin as directed, but that he was "resistant" to the injections and finger sticks. ( Id. ). Although testing showed Plaintiff's sugar levels (and triglycerides) remained high, he did not immediately increase his amount of insulin injections, despite his health professionals' recommendations. (R. 232-35; 248-49).
2. Late 2009 Examinations and Reports by BDDS Physicians
On December 16, 2009, Dr. Charles Carlton, a consultative examiner for the Bureau of Disability Determination Services ("BDDS"), examined and interviewed Plaintiff, and reviewed his August 16, 2008 PrimeCare medical records and lab results from January 23, 2009 through September 19, 2009. (R. 202). In his consultative examination report for BDDS, Dr. Carlton wrote that Plaintiff alleged he was disabled due to type 2 diabetes, high cholesterol, pain the waist and blood in the urine. ( Id. ). When Dr. Carlton asked Plaintiff about his limitations, Plaintiff stated that he could only walk for about one block and he experienced fatigue, leg and upper back pain when he walked too much; that he had to take his time climbing stairs; and that he could only lift up to 20 pounds and his back pain increased when he attempted to lift heavier loads. (R. 202-03).
Dr. Carlton observed that Plaintiff was well-developed; had no difficulty with tasks involving fine and gross movement of the hands and fingers and normal grip strength in both hands; and was able to rise from sitting to standing and walk for more than 50 feet without assistance. (R. 203-06). But, Plaintiff also displayed a "rigid gait" and moderate difficulty with tandem walking; severe difficulty walking on his toes; an inability to walk on his heels or hop on one leg; some shortness of breath; and moderate difficulty with squatting and arising. ( Id. ). Plaintiff also exhibited several range of motion restrictions, including that his shoulder flexion and abduction were limited to 130/150 degrees; his bilateral knee flexion was limited to 130/150 degrees; he was unable to raise his arms over his head due to complaints of pain; his cervical spine extension was limited to 20/60 degrees; his left and right lateral bending of the cervical spine were limited to 20/45 degrees; his left rotation of the cervical spine was limited to 60/80 degrees and his right rotation was limited to 70/80 degrees; and his lumbar spine flexion without hip flexion was limited to 50/60 degrees and with hip flexion was limited to 80/90 degrees. (R. 204-08).
Neurologically, Plaintiff had normal motor strength, sensation and reflexes except in the shoulders and feet. (R. 204). Specifically, Plaintiff described altered sensation to light touch in both feet, proprioception in both of his feet was impaired, and Plaintiff's participation in testing of his rotator cuff muscle group in each shoulder was limited due to pain. ( Id. ). Based on the foregoing, Dr. Carlton's "conservative estimate of [Plaintiff's] functional abilities" was that Plaintiff could walk greater than fifty feet without assistance; could safely lift, handle and carry up to 20 pounds from waist level to shoulder level using both hands; could safely sit and stand; but could not lift either arm over his head due to pain. (R. 205).
On December 31, 2009, Dr. Young-Ja Kim, a state agency reviewer, completed an RFC assessment for BDDS related to Plaintiff's claim for disability. (R. 215-22). Dr. Kim found that Plaintiff could occasionally lift and carry up to 50 pounds; frequently lift and carry up to 25 pounds; and stand, sit or walk for up to six hours in an eight hour workday. Dr. Kim also found that Plaintiff had the unlimited ability to push or pull; could frequently balance, stoop, kneel, crouch, crawl and reach overhead with both arms; and could occasionally climb ramps, stars, ladders, ropes and scaffolds. (R. 216-18). In support, Dr. Kim noted that Dr. Carlton's examination showed Plaintiff had no difficulty getting on and off the examination table; his ambulation was "normal" other than his rigid gait; he had normal motor strength, sensation and deep tendon reflexes; and he had only a "slight loss of motion" in the shoulders, back and knees. (R. 222). Dr. Kim rejected Nurse Boers' July 2009 assessment that Plaintiff could lift no more than 10 pounds at a time because Nurse Boers did not support the assessment with any abnormal findings from her physical examination of Plaintiff, and because Plaintiff himself stated to Dr. Carlton that he could lift up to 20 pounds. (R. 221-22).
Shortly after Dr. Kim's report, on January 12, 2010, the SSA denied Plaintiff's applications for DIB and SSI. (R. 46-49). Plaintiff returned to PrimeCare for follow-up visits with Nurse Boers in January, February, and March 2010. (R. 245-47). Plaintiff reported at times that he had not been checking his sugar levels due to problems with the blood lancets or because his machine was not working (although he was sometimes able to borrow his mother's machine, which showed his sugar levels were still high). ( Id. ). He also complained of a decreased appetite and energy, poor sleep and pain in his heels. ( Id. ). Nurse Boers thought that his heel pain symptoms were "atypical" for plantar fasciitis, but could be caused by neuropathy. (R. 245.). She also wrote that Plaintiff's lack of adherence to his diabetic treatments was resulting in poor control of his condition. ( Id. ). As a result, she recommended various treatments and follow-ups, but other than for one medication refill, the record does not contain any evidence that Plaintiff ever returned to PrimeCare. ( Id. ).
On April 20, 2010, Dr. Frank Jimenez, a non-examining state reviewer, reconsidered Dr. Kim's December 31, 2009 RFC assessment for BDDS and affirmed Dr. Kim's findings, stating that Plaintiff had no new allegations of worsening symptoms. (R. 256-63). He acknowledged that Plaintiff reported foot pain to Nurse Boers in February 2010, but found that she did not think it was caused by fasciitis or neuropathy (apparently misinterpreting Nurse Boers' note that Plaintiff's pain could be caused by neuropathy). (R. 263). Two days later, on April 22, 2010, the SSA affirmed its denial of Plaintiff's applications for DIB and SSI, on reconsideration. (R. 46-49).
Several months later, on October 15, 2010, Plaintiff began seeing Dr. Cesar Bastos, an internist at Mount Sinai Hospital ("Mount Sinai"). (R. 282-85). Based on Plaintiff's blood and hemoglobin testing results, which showed high blood glucose levels and a high HbA1c, Dr. Bastos diagnosed Plaintiff with uncontrolled diabetes and recommended that he stop taking metformin and enalapril, but raise his Lantus injections to 60 units per day. (R. 282-85; 291-93.). Plaintiff also complained of severe leg pain, and Dr. Bastos noted Plaintiff had no sensation in his fifth toes. ( Id. ). Dr. Bastos referred Plaintiff for a bilateral lower extremity arterial Doppler with exercise examination ("Doppler examination")-which involved alternative periods of brisk walking and rest during which Plaintiff's right and left ankle-brachial indexes ("ABI") would be measured. (R. 285, 302-03).
Plaintiff had the Doppler examination done on October 29, 2010. (R. 302-03). Dr. Elizabeth T. Clark, a vascular surgeon who examined the results, opined that although Plaintiff limped during the examination and stated he experienced some pain, his ABIs were normal-ranging on the right from 1.33 to 1.07, and on the left from 1.22 to 0.99-and there was no evidence of aortoiliac occlusive disease. ( Id. ).
At follow-ups with Dr. Bastos in November and December 2010, Plaintiff complained of severe back pain, high sugar levels, and problems using his insulin injections device because it was "old" and hard to use. (R. 279-80). Dr. Bastos persisted in his diagnosis of uncontrolled diabetes and recommended that Plaintiff ...