United States District Court, Central District of Illinois, Rock Island Division
ORDER AND OPINION
JONATHAN E. HAWLEY U.S. MAGISTRATE JUDGE
The Plaintiff appeals from the denial of his application for Social Security Disability Insurance Benefits under Title II of the Social Security Act 42 U.S.C. § 405(g). The Plaintiff filed his application for disability insurance benefits on December 7, 2010, alleging that he became disabled on March 12, 2010. In a Notice of Disapproved Claim dated March 11, 2011, the Plaintiff's claim was denied. On April 11, 2011, he asked for a reconsideration of his claim. That request was denied on May 18, 2011. On June 13, 2011, he filed a Request for Hearing by an Administrative Law Judge. The hearing was held on July 18, 2012, before Administrative Law Judge (ALJ) Barbara J. Welsch. The Plaintiff was present and was represented by counsel. The Plaintiff, with the aid of an interpreter, testified at the hearing, along with Al Walker, a vocational expert. ALJ Welsch issued an unfavorable decision dated August 6, 2012. On August 30, 2012, the Plaintiff filed a request for Review of Hearing Decision with the Appeals Council. In a Notice of Appeals Council Action dated September 27, 2013, the Appeals Council denied his request for review. Having exhausted his administrative remedies, the Plaintiff timely filed his complaint in this action on November 7, 2013, pursuant to 42 U.S.C. §405(g). The parties consented to a U.S. Magistrate Judge deciding the merits of this case.
Now before the Court are the Plaintiff's, Mohamed Karoumia's, Motion for Summary Judgment and the Commissioner of Social Security's, Carolyn W. Colvin's, Motion for Summary Affirmance. The Motions are fully briefed, and for the reasons stated herein, the Court GRANTS the Commissioner's Motion for Summary Affirmance and DENIES the Plaintiff's Motion for Summary Judgment.
The Plaintiff alleged disability due to limitations caused by back problems resulting from a car accident in April of 2008. He first sought medical treatment for this condition in April of 2009, when he went to the Community Health Care clinic and was seen by Dr. Foluso Ogunleye. After conducting a CT scan which revealed a possible mild compression fracture and a moderate sized disc bulge with some mild to moderate central canal narrowing, Dr. Ogunleye referred the Plaintiff to neurosurgeon, Dr. Daniel Fassett, for evaluation.
Dr. Fassett examined the Plaintiff approximately a month later and diagnosed the Plaintiff with a facture at the L3 endplate. He initially prescribed physical therapy. In September 2009, around four months after that visit, the Plaintiff returned to Dr. Ogunleye, complaining of intractable pain and requesting referral to a pain clinic. Although the Plaintiff complained of pain at an 8/10 level, the examination at that visit showed no abnormalities with the exception of "straight leg rising" and "tenderness to palpitation of the spine." Dr. Ognuleye prescribed medication and referred the Plaintiff back to Dr. Fassett. Eventually, on March 12, 2010, the Plaintiff underwent surgery involving a right L5-S1 hemilaminectomy, medial facetectomy, discectomy and decompression of S1 nerve root. The Plaintiff tolerated the procedure well and reported no leg pain after the surgery.
After surgery, the Plaintiff underwent physical therapy from April 2010 through July 2010. When he first arrived for that therapy in April, he was noted to require minimal assistance with daily activities, had full strength in the lower extremities, and made no mention of an inability to walk unassisted. The Plaintiff progressed through therapy through July of 2010, showing steady signs of improvement and toleration of his treatment/therapy with minimal complaints of pain and difficulty. However, in mid-July, he missed four out of five of his appointments, reporting on August 10, 2010 that he had been very sore for the preceding three weeks and had not been performing his home exercises as directed by his therapist. Nevertheless, the therapist noted that he tolerated his therapy that day with mild complaints of pain and difficulty, although he also needed reeducation on the importance of his home exercise program and being consistent with his therapy treatments.
At the time of his August 19, 2010 appointment, the therapist noted:
Client was positive for superficial tenderness over wide area of lumbar skin in no localized to one structured[sic]. Was positive form[sic] axial loading and acetabular rotation. Double straight leg raise was less then single at 5 degrees. Client also continues to demonstrate disproportionate verbalization and facial expression. Client was 4 out of 5 for Waddels' Signs: Tenderness, simulation test, distraction test, overreaction.
(D. 12-3 at ECF p. 68). The therapist discharged the Plaintiff, noting that his "subjective complaints of increased pain and objectively his trunk mobility has decreased compared to his initial evaluation. He demonstrated 4 out of 5 Waddells signs which indicated a poor prognosis for therapy at this time." (D. 12-3 at ECF p. 70).
Several months later, in May and June of 2011, Dr. Robert Milas, another neurosurgeon, evaluated the Plaintiff. Dr. Mila's impression was one of lumbar radiculopathy. He ordered an MRI, which showed moderate bulging and protruding disc at the L2-3 level. He recommended that the Plaintiff return to his original neurosurgeon, Dr. Fassett, to see if he was a surgical candidate.
In June of 2011, the Plaintiff was seen in Dr. Fassett's office by nurse practitioner, Jana Reed. The Plaintiff complained of chronic back pain and bilateral leg pain for several months, numbness and tingling with some swelling in his feet, and no activities except for physical therapy. The May 2011 MRI showed moderate bulging and protruding disc at L2-3 with mild to moderate narrowing of the spinal canal and some mild degenerative disease, but at the L5- S1 level there was very mild central bulging of the discs without significant narrowing of the spinal canal. He was offered epidural steroid injection (which he refused), pain management, and physical therapy. Ms. Reed noted that the Plaintiff's pain symptoms did not correlate with the MRI as he was not experiencing any thigh or groin pain. She then directed him to return after a few months of physical therapy, noting that such therapy would help his pain issues.
Nearly a year later, the medical record shows a visit by the Plaintiff to Dr. Sanjay Pancholi, where the Patient Plan notes the Plaintiff was there for a regular visit, he having herniated disc bulge and L4-L5 disc bulge. He noted, "Normal range of motion, muscle strength, and stability in all extremities with no pain on inspection. No thoracic spine tenderness, Normal mobility and curvature. Comments: tender to palpation paraspinal muscles, spasms." (D. 12-3 at ECF p. 127). The plan for the Plaintiff was for him to take Tylenol #3, Neurontin, and Flexeril, as well as come to a follow-up visit in six months.
At the July 18, 2012 hearing before the ALJ, the Plaintiff testified that he lived at home with his wife and three children. He stated that his consistent high pain levels in his back and legs, which he was "not able to really control" with medication, prevented him from working. (D. 12 at ECF p. 40). He did, however, testify that he tries to walk for 30 minutes a day, used the computer, reads, drives, grocery shops, and takes care of his personal hygiene. He also travelled to Canada a month before the hearing, riding in the car for 18 to 20 hours while a friend drove. When he does perform daily activities, he lays down after them, sometimes three, four, five times a day for 15 to 45 minutes each time. Likewise, he testified that he must lay down after 35 minutes of walking or 15 minutes of standing in place. As for sitting, he stated that he must get up after 30 to 45 minutes to relieve pain.
He also testified that he was able to do everything himself before his accident and surgery, but, afterwards, he was not able to really help much and his wife was "pretty much doing most of it." He also testified that he used a cane at home but did not use it outside the home because it embarrassed him. He said he had trouble with the two steps into his house, walking on uneven surfaces, and walking on a straight path.
In the ALJ's decision, she concluded that the Plaintiff had the following severe impairments: "Spine impairment including some bulging discs and degenerative disc disease of the lumbar spine with history of laminectomy and discectomy with residual back and leg pain." (D. 12 at ECF p. 20). After concluding that these impairments did ...