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Prate v. Colvin

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

September 29, 2014

JOEL PRATE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

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For Joel B. Prate, Plaintiff: Barry Alan Schultz, LEAD ATTORNEY, Law Offices of Barry Schultz, Evanston, IL.

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Milton I. Shadur, Senior United States District Judge.

Joel Prate (" Prate" ) seeks judicial review pursuant to the Social Security Act (" Act" ), more specifically 42 U.S.C. § § 405(g) and 1383(c)(3),[1] of the final decision by Acting Commissioner of Social Security Carolyn Colvin (" Commissioner" ) that denied Prate's claim for disability insurance benefits under Titles II and XVI of the Act. Prate and Commissioner have filed cross-motions for summary judgment under Fed.R.Civ.P. 56. Prate asks this Court to reverse Commissioner's decision and award benefits to Prate or, in the alternative, to remand the case for further proceedings. Commissioner's motion asks this Court to affirm her denial of benefits. For the reasons stated in this memorandum opinion and order, Commissioner's

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motion is denied, Prate's motion is denied in part and granted in part, and the case is remanded for further proceedings consistent with this opinion.

Procedural Background

Prate filed applications for social security disability insurance benefits (" SSDI" ) and supplemental security income (" SSI" ) on November 2, 2011, alleging a disability onset date of April 15, 2006 (R. 14). Those applications were denied on December 15, 2011 and again denied upon reconsideration on May 14, 2012 (id.). Prate then made a timely filing for a hearing, and Administrative Law Judge Joel Fina (" ALJ Fina" or simply " the ALJ" ) held a first hearing on October 2, 2012, followed by a supplemental hearing on February 4, 2013 (R. 14-15). On April 3, 2013 the ALJ issued a decision denying Prate's applications (R. 35). Prate requested review from the Appeals Council, but it denied his request for review on July 12, 2013 (R. 2). Thus ALJ Fina's opinion represents Commissioner's final decision.

General Background

Prate, born on December 17, 1958, was 54 years old on the date ALJ Fina decided he was not disabled (R. 35, 255). Prate is a military veteran who has been homeless for some time (R. 101-2, 181, 7537). He is divorced and has two adult children, neither of whom lives with him (R. 135-36). From 2006 to 2009 he worked only occasionally, mostly as a truck driver (R. 108). In 2009, his last year of work, he made $4,293.68 (R. 291). Aside from driving trucks and his brief stint in the military, Prate also worked as a salesman and an exterminator (R. 104-7). He obtained a GED before entering the service, and that was the extent of his formal education (R. 103).

Prate supported his applications with medical records totaling about 8,500 pages. Those records evidence a number of maladies that Prate argues render him unable to work. Most prominent among them are chronic leg and lower back pain, coronary artery disease with angina and two heart attacks, a history of pulmonary embolisms, chronic obstructive pulmonary disease and psychiatric symptoms (principally anxiety and depression) (R. 18, 30-34). Aside from that, the records are particularly notable for the red flags they raise about Prate's credibility. He has not always complied with doctors' advice, he has sometimes used prescription opioids in doses beyond those prescribed (resulting in one overdose), and for a time he incessantly reported to various hospital emergency departments, complaining of exacerbated back pain and requesting (sometimes demanding) large doses of powerful opioids (R. 18-23, 26-30). Such visits to emergency departments provide most of the bulk of the administrative record.

Medical Evidence

Besides the sheer size of the record, two factors have made any review of the medical evidence particularly difficult. One is the disorganization of the record. At times records from a single hospital admission are scattered across multiple exhibits and record volumes, apparently at random. Such disorganization always presents problem for a reviewing court (not to mention an ALJ), but that is especially so when the record stretches over 9,000 pages. Also complicating any review is that Prate apparently never established a continuing relationship with a treating physician -- instead he serially sought treatment from several hospital emergency departments. Thus the extensive records that do exist reflect no developing understanding of Prate's apparently complex and interrelated medical issues, but instead mostly evidence a number of unrelated physicians' first impressions of Prate

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and his problems. There is no elegant way to summarize such information, but this opinion will proceed by giving a brief history of each impairment that formed a basis for the ALJ's determination, which Prate now challenges on appeal.

Prate's main complaint has been intense, burning pain that extends from his lower back through his left leg and into his left foot and toes (R. 77, 115-16). He states that this pain, combined with shortness of breath (brought on by one or both of his coronary artery disease and chronic obstructive pulmonary disease), makes it difficult for him to walk any more than short distances and often causes him to fall (R. 115-16, 131). Although at times the record includes Prate's reports that he has experienced back pain throughout his life, the burning-type pain first arose in 1999 and has persisted since (R. 4890). Not coincidentally, that is the year Prate had spinal fusion surgery, apparently to relieve pain as well as bowel and bladder incontinence (id.). That surgery fused Prate's fifth lumbar (" L5" ) and first sacral (" S1" ) vertebrae by means of a metal plate and screws (R. 64, 7453).

From the alleged disability onset date in 2006 to the final hearing date in 2013, Prate presented at various emergency departments dozens of times, complaining of incapacitating pain in his back and legs (usually his left leg) and occasionally complaining of numbness or tingling in the same. Those complaints were not always supported by objective findings. For instance, absent or reduced reflexes were noted in one or both of Prate's lower extremities on May 4, 2008 (R. 818), November 10, 2009 (R. 4123), November 7, 2011 (R. 4891) and November 28, 2011 (R. 1746), among other visits. But at other times Prate's lower extremity reflexes were within a normal range, for example on October 11, 2009 (R. 5994) and May 22, 2010 (R. 3706). Similarly, hospital staff sometimes observed muscle spasms with a reproducible " trigger point" in Prate's back, as on May 23, 2007 (R. 5040) and February 17, 2010 (R. 5932), but they sometimes did not, as on October 11, 2009 (R. 5994).

Prate also occasionally complained of incontinence. As to bowel incontinence he complained three times, once in an emergency room visit on August 11, 2006 (R. 4896), again on June 15, 2007 (R. 1156) and again (this time with bladder incontinence as well) on March 18, 2009. Prate also told medical staff of bladder incontinence after an asserted aggravation of his back pain on February 14, 2011 (R. 6638). Finally, a doctor ordered a CT scan and MRI on August 24, 2012 because of bladder incontinence -- though it is unclear whether that incident was observed by the doctor or just reported by Prate (R. 7499). So far as this Court can tell, Prate did not complain of incontinence at other times, nor did hospital staff observe any.

During his frequent visits to hospital emergency rooms Prate received numerous MRIs, CT scans and x-rays of his back. Unfortunately, reports from the MRI and CT scans consistently noted that it was difficult or impossible to obtain useable images of the tissue between and around the very three vertebrae that would seem to be the source of the pain Prate described (the L4, L5 and S1 vertebrae) because of the metal " artifacts" there: the plate and screws fusing Prate's lower spine (R. 831-33, 1184, 1786-88, 3066, 4864, 5078, 5237-38, 5870, 6862-63, 7453-54).

But when radiologists were occasionally able to get a peek at Prate's lower spine in spite of the metal there, they made potentially noteworthy findings. On August 18, 2009 the radiologist performing a CT scan noted Prate had a perineural cyst (i.e., a

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cyst next to a nerve) near his L4 vertebra (R. 1787-88). On October 29, 2010 an MRI revealed facet hypertrophy (degeneration of the vertebral joints) between L4 and L5 (R. 6862-62). And on January 11, 2011 another radiologist performing a CT scan noted possible bony narrowing of the neural foramina (R. 5870). Aside from those glimpses, radiological findings were mostly limited to gross findings or to other parts of Prate's spine and nearby tissue. On that score CT scans and MRIs consistently reflected a grade I or II spondylolisthesis (a mild to moderate displacement) of Prate's L5 vertebra relative to his S1 vertebra, reflecting the position in which the two bones were fused (e.g. R. 5078, 5237-38, 7454). Back on July 23, 2007 a CT scan had revealed calcification of the arteries (atherosclerosis) near Prate's spine (R. 5078). Disc degeneration was generally noted on May 6, 2008 (R. 833), June 30, 2009 (R. 5237-38) and August 6, 2012 (R. 7453), with disc bulging noted in particular on August 20, 2009 (R. 1746-47) and August 6, 2012 (R. 7453).

Apart from that number of objective findings, the record also reflects a disturbing number of hospital visits where Prate seemed to exaggerate his symptoms in order to receive prescription opioids. ALJ Fina did the hard work of cataloguing these incidents (R. 19-23, 26-30), so this opinion will summarize just one by way of example. On June 26, 2009 Prate reported to an emergency room complaining of extreme pain through his back and leg, but his attending nurse noted that he moved easily about the room and was not grimacing or showing other typical signs of pain (R. 463). Prate refused non-pharmacological treatments such as ice, and he also refused to see a social worker about getting assistance with housing or with obtaining Coumadin, a medication necessary to control his recurrent pulmonary embolisms (R. 462-63). Instead Prate repeatedly demanded that he be given powerful opioids intravenously (R. 463). He refused all offers of other help, verbally abused a doctor who refused to prescribe the specific drug Prate was demanding and finally left the emergency room against medical advice (R. 463-64). Prate did leave in a wheelchair, although it is not clear whether he physically required one (R. 464). Descriptions of several similar hospital visits, with similar behavior on Prate's part, are scattered throughout the record.

To move on to Prate's heart condition, he had a heart attack with subsequent stenting in 2006, although it is unclear from the record whether that occurred before or after the alleged disability onset date of April 15, 2006 (R. 55). Prate apparently did not start reporting to emergency departments with complaints of chest pain and dyspnea (shortness of breath) until late 2009, when visits from August (R. 2117-23), September (R. 1380-82) and December (R. 5978) of that year all record such complaints. After further chest-pain-related visits in 2010 and early 2011 (e.g. R. 5960-74, 3354-58, 5620-21), Prate was admitted to Elmhurst Memorial Hospital on March 11, 2011 for chest pain that was " [s]uspicious for angina," according to the attending physician (R. 5660). But the cardiologic stress test came back negative, and Prate consistently demanded opioids throughout his hospital admission -- demands that appear to have made the medical staff dubious about his purported symptoms (R. 5662). After that hospital visit Prate went over a year without seeking treatment for chest pain or shortness of breath. Then on May 23, 2012 Prate again sought emergency medical care for chest pain that radiated into his jaw and arm (R. 7323). Again a stress test came back negative (R. 7334), but a catheterization study showed a 40% stenosis

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(narrowing) of the left circumflex artery, two stenoses (of 20% and 30%) in the left anterior descending artery, a 20% stenosis in the first obtuse marginal artery and a 30% stenosis in the right coronary artery (R. 7379). Notes by the doctor performing the catheterization study included " Unstable angina" and " Functional status: CCS [Canadian Cardiovascular Society][2] class III (marked limitation of ordinary activity)" (id.).

If there had been any doubt as to whether Prate really had heart trouble, it was resolved on November 2, 2012, when Prate suffered a massive heart attack while picking up a prescription at the Jesse Brown Veterans Administration (" VA" ) Hospital (R. 7877). Physicians performed an emergency left heart catheterization and placed two more stents into Prate's heart (id.). Prate reported no chest pain or shortness of breath during his hospital visits after that heart attack (R. 8988, 8993, 8999).

Finally, Prate has some history of mental health problems. During his recurrent emergency department visits Prate occasionally reported suicidal thoughts (e.g. R. 552, 3358). On September 25, 2010, a day after overdosing on a muscle relaxant, Prate was examined by a psychiatrist, Dr. Cullinane (R. 5573-75), who diagnosed major depression, opiate abuse and sedative-hypnotic abuse (R. 5574). About two years later (August 29, 2012) Prate was examined by a VA psychologist, Dr. Eisenberg (R. 7484-85), who diagnosed Prate with an adjustment disorder with mixed emotional features (R. 7484).

Prate's Hearing Testimony

Prate testified at both ALJ hearings (on October 2, 2012 and February 4, 2013), discussing his work history, medical symptoms and daily life. Prate said he had previously worked as a semi-truck driver, auto salesman, retail flooring salesman and over-the-phone computer salesman (R. 103-6). He testified that he had to stop driving trucks because he could no longer hold in the clutch and because the constant vibrations from sitting in a truck cab caused him intolerable pain (R. 107-8). Prate said he could not return to work as a salesman because he could neither sit nor stand for extended periods and because his prescribed pain medications interfered with his ability to work (R. 107, 114-15).

As for his medical conditions, Prate described his chronic back pain this way (R. 77):

Low back, right around the low belt level, shoots down into the leg, the burning sensation into the big toe and toe next to it. Absolutely excruciating, so much so that the Dilaudid [hydromorphone] doesn't even stop the burning sensation.

Prate also testified that his back pain had " gotten a lot worse" since 2006, that the pain was brought on by " [s]itting, moving, walking, sneezing, coughing," and that he had difficulty with his balance due to the burning sensation in his leg (R. 115-116). Prate appeared at the hearings using a walker and reported that he used a walker four or five times a week (R. 120) and that he walked without a cane or walker only when going short distances (R. 121). During

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the February 4, 2013 hearing Prate testified that he had gone to the emergency room 8 or 9 times in the past 14 months for breakthrough pain and shortness of breath (R. 78). As for pain medications, Prate reported current (as of the October 2, 2012 hearing) prescriptions of the opioids Dilaudid (hydromorphone) and Norco (hydrocodone), the muscle relaxant Soma (carisoprodol) and the non-opioid painkiller Neurontin (gabapentin) (R. 117).

Prate also described his heart condition. Although he reported recent chest pain at the October 2, 2012 hearing (R. 130), he said he was not currently experiencing chest pain (R. 131). At the second hearing, which took place after his massive heart attack of November 2, 2012, Prate did not complain of chest pain (R. 77-79). At both hearings, though, Prate testified that he experienced shortness of breath that kept him from even mild exertion. In the first hearing he clarified, " I mean exertion, walking, I mean to me that's exertion" (R. 131). In the second hearing he said he often was " very short winded. I have a very hard time catching my breath. I can't walk for very long distances at a time" (R. 77). Prate also said he sought medical treatment in emergency rooms so often both because of back pain and because of " shortness of breath, can't breathe" (R. 78) and because he had been suffering from recurrent pneumonia (R. 79).

Prate testified that he experienced depression and anxiety and had been diagnosed with post-traumatic stress disorder. He described his depression as being related to his chronic pain (R. 113-14, 127) and said he had received treatment for depression at pain clinics (R. 117). Prate also described a traumatic incident in his past (a schoolteacher's assault on Prate's daughter when she was a child) as contributing to his depression, and he said he had been diagnosed with post-traumatic stress disorder in relation to that event (R. 127-29). Prate asserted he still experienced depression and post-traumatic stress disorder, but he did not say if or how that limited his ability to work (R. 132-33).

As for activities of daily life, Prate testified that he occasionally took public transportation a distance of 8 blocks -- a bus picked him up directly in front of the shelter where he was living and dropped him off at a VA medical center down the street (R. 109). He said he could walk no more than a block before he had to rest because of pain and shortness of breath (R. 115, 131). At the October 2, 2012 hearing Prate stated he did not cook, clean or do other chores " due to the fact of my disabilities" (R. 110). He testified that while he had earlier lived in a friend's house, other people grocery shopped for him, but he had prepared his own food using a microwave (R. 109, 137). There was a public library a half-block to a block away from that house, and Prate would go to ...

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