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Gambill v. Colvin

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

August 5, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          Donald E. Gambill, Plaintiff, represented by Barry Alan Schultz, Law Offices of Barry Schultz.

          Carolyn W. Colvin, Defendant, represented by Kurt N. Lindland, United States Attorney's Office.

          Carolyn W. Colvin, Defendant, represented by AUSA-SSA, United States Attorney's Office


          MICHAEL T. MASON, Magistrate Judge.

         Claimant Donald Gambill ("Claimant") has brought a motion for summary judgment (Dkt. 15) seeking judicial review of the final decision of the Commissioner of Social Security (the "Commissioner"). The Commissioner denied Claimant's request for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act, 42 U.S.C. §§ 416, 423 and 1383c. The Commissioner has filed a cross-motion for summary judgment (Dkt. 22) asking the Court to uphold the decision of the Administrative Law Judge (the "ALJ"). This Court has jurisdiction to hear this case pursuant to 42 U.S.C. § 405(g) and 1383(c). For the reasons set forth below, Claimant's motion for summary judgment is denied and the Commissioner's motion for summary judgment is granted.

         I. BACKGROUND

         A. Procedural History

         Claimant filed his applications for DIB and SSI on October 27, 2010, alleging disability as of November 21, 2007 due to COPD, diabetes, glaucoma and neck and back problems. (R. 106.) His claims were denied initially in May 2011, and again upon reconsideration in October 2011. (R. 106-115, 126-135.) Claimant filed a timely request for a hearing. (R. 171.) On October 16, 2012, he appeared with a non-attorney representative and testified before ALJ Carla Suffi. (R. 38-93.) A vocational expert also provided testimony. On November 29, 2012, the ALJ issued a decision denying Claimant's claim. (R. 18-37.) Claimant submitted a request for review by the Appeals Council, which was denied on November 29, 2013. (R. 9-14.) Subsequently, the Appeals Council re-opened the request for review to consider some additional medical evidence that had been submitted on October 16, 2013. However, because the additional evidence post-dated the ALJ's decision, the Appeals Council again denied Claimant's request for review on February 21, 2014. (R. 1-5.) This action followed.

         B. Medical History

         1. Treating Physicians

         Primary Care Treatment

         Claimant's medical records date back to 2002 when he was treated by Dr. Christensen for substance abuse problems. (R. 358.) He returned to see Dr. Christensen a couple of times over the next few years for similar issues and general medical complaints. (R. 353-56.)

         The record also includes treatment notes from Claimant's primary care physician, Dr. Nasreen Ansari, dating back to February 2008, which demonstrate that he visited Dr. Ansari on and off for medication management and general medical complaints. Dr. Ansari's assessment over the years included COPD, alcohol and tobacco abuse, glaucoma, back pain, allergies, anxiety, depression and insomnia. She often advised Claimant to stop smoking and drinking alcohol.

         Specifically, Dr. Ansari's notes reveal that in February 2008, Claimant was struggling with alcohol, but had sought help. (R. 451.) He was doing "really well" on Spiriva, used for COPD, and Chantix, used for nicotine addiction. ( Id .) He did not report any pain. ( Id .) He was given a B12 injection for macrocytosis secondary to alcohol use. ( Id. ) Dr. Ansari recommended he follow up with a mental health treatment center for his alcohol abuse and anxiety. ( Id .) Over the next few months, Claimant continued on Spiriva with success and was advised to continue with Chantix to curb his nicotine addiction. (R. 449-50.) In July 2008, Claimant complained of back pain, which he rated a four on a ten point scale. (R. 449.)

         The record is silent until October 2009, when Claimant returned for medication refills. (R. 448.) He denied chest pain or shortness of breath. ( Id .) Claimant reported he had a job interview. ( Id .) On exam, his breathing was slightly coarse and wheezy. ( Id .) Dr. Ansari assessed COPD, and also prescribed Wellbutrin. ( Id. ) The next month, Claimant complained of a cough, fever, itchy eyes, chest and back pain. (R. 446.) Dr. Ansari assessed a respiratory infection and his medications for glaucoma and COPD were re-filled. ( Id .) He was "feeling better" the following week but for some neck pain, which he was treating with Flexeril. (R. 445.) He had decreased his cigarette habit. ( Id .) Dr. Ansari prescribed Trazadone. ( Id .) In December 2009, Claimant complained of recurrent back pain. (R. 444.)

         In March 2010, Claimant reported excessive alcohol use the previous two days and asked to increase his dosage of Wellbutrin for anxiety and depression. (R. 442.) His other medications for glaucoma and back pain were re-filled as well. ( Id .) He reported doing well the following week when he picked up his medications. (R. 441.) During the next few visits for medication refills he reported occasional back pain. (R. 439-40.) Dr. Ansari assessed muscular back pain and recommended Tylenol and Flexeril as needed. (R. 439.) Claimant also reported he had stopped taking Welbutrin as it was not working. ( Id .) Dr. Ansari again recommended Trazadone for insomnia. ( Id .) In July 2010, Claimant denied chest pains, or shortness of breath. (R. 438.) He reported biking five miles daily. ( Id .) His eyes were red from allergies. ( Id .)

         In August, Claimant's COPD problems had flared up and Dr. Ansari noted increased wheezing and rhonci. (R. 436.) She assessed bronchitis and prescribed Levaquin. ( Id .) Claimant was doing well the following week, but complained that his allergies had gotten worse. (R. 435.) Dr. Ansari recommended Claritin. ( Id .) In October, he reported he was having difficulty working because of his glaucoma, tinnitus, osteoarthritis of the knee, and back pain, and planned to apply for disability benefits. (R. 434.) Dr. Ansari, for the first time, assessed knee osteoarthritis and chronic facial pain status post motor vehicle accident. ( Id .) Claimant continued to complain of back and knee pain at the next two appointments. (R. 432-33.) By December 8, 2010, he reported no problems and was very excited for a new job. (R. 431.) Claimant returned six months later again complaining of back and knee pain. (R. 487.) Dr. Ansari noted he smelled of alcohol. ( Id .)

         On June 29, 2011, Claimant presented to the emergency room at Oak Forest Hospital with moderate chest and back pain complaints. (R. 464.) He described a history of multiple back traumas, such as falling off his bike. ( Id .) He also reported a history of asthma and COPD. (R. 465.) A physical exam was normal except for a low diastolic blood pressure and a bronchial cough. (R. 465-66.) Chest imaging showed two nodular densities in the left upper lobe. (R. 460.) Further testing was recommended to "rule out abnormal pulmonary nodule[s]." ( Id .) Imaging of the lumbar spine revealed essentially normal results, except for a few small spurs of the upper lumbar vertebral body. (R. 462.) There was no narrowing of the intervertebral disk spaces and no fractures or dislocations observed. ( Id .) The examining ER physician assessed back pain and COPD with bronchitis, and advised Claimant to follow up within the week. (R. 466.)

         Claimant followed up as directed, at which time he reported he had lost twelve pounds. (R. 471.) He was smoking 15 cigarettes per day, and reported occasional alcohol use. ( Id .) He was taking Bupropion, Spiriva, Trazadone, and Flexeril. ( Id .) The examining physician referred him for a CT scan for the pulmonary nodules issue, recommended Tylenol for his low back pain, and advised he quit smoking. (R. 471-72.) He also directed Claimant to continue using Spiriva and start using Atrovent and Qvar for chronic bronchitis. (R. 472.)

         Claimant returned a few weeks later on July 22, 2011. (R. 468.) At that time, he admitted to heavy alcohol consumption for the last two months. ( Id .) He reported that he participated in rehabilitation in 2004, and that he was planning to seek help again. ( Id .) He had cut down his cigarette use to 10-12 per day. ( Id .) He reported his back pain had improved with medication. (R. 469.) His depression was also stable with medication. ( Id .) A chest CT showed prior granulomatous disease, indicating previous lung infection, but no suspicious pulmonary nodules or masses. ( Id .) His liver enzyme levels were elevated, likely due to alcohol consumption. ( Id .) The doctor recommended he quit smoking and drinking, and he planned to start Claimant on Albuterol for chronic bronchitis. ( Id .)

         Claimant also followed-up with Dr. Ansari in July 2011, at which time he rated his pain an eight on a ten-point scale, but reported he was feeling "well" and had stopped drinking. (R. 486.) His pain was worsening at his next visit and at some point in 2011 he dislocated his hip. (R. 484-485.) He told Dr. Ansari at a follow-up appointment that his hip pain was improving following the dislocation. (R. 484.) Dr. Ansari noted that he was walking with a cane. ( Id .) In December 2011, Claimant continued to complain of back and hip pain and was still walking with a cane. (R. 483.) Dr. Ansari appeared to assess disc disease and continued to recommend medication. ( Id .)

         On January 16, 2012, Dr. Ansari completed a physical medical source statement. (R. 488-91.) She indicated that she had been treating Claimant on and off every month since November 2007. (R. 488.) Claimant's diagnoses were listed as COPD, glaucoma, osteoarthritis of the back, depression, tinnitus, hearing loss, and hip pain. ( Id .) The prognosis was "fair." ( Id .) She described Claimant's symptoms as daily back/neck pain, worse upon exertion, activity and lifting, and shortness of breath with exertion. ( Id .) She identified the "x-ray done at Oak Forest" as the clinical finding and objective sign of Claimant's impairments. ( Id .) Treatment was listed as Naproxen, Flexeril, and occasionally Vicodin. ( Id .) In Dr. Ansari's view, Claimant's impairments have or could be expected to last twelve months and emotional factors, namely depression, contribute to the severity of his symptoms. (R. 488-89.)

         Dr. Ansari concluded that Claimant could walk two blocks at one time before needing to rest from dyspnea or pain; could stand thirty minutes at a time; could stand/walk less than two hours in an eight-hour day; and sit about four hours in an eight-hour day. (R. 489.) He would need a job that allowed shifting positions at will, as well as five minutes of walking every sixty minutes. ( Id .) He would require five to ten minute unscheduled breaks every one to two hours due to pain. ( Id .) Dr. Ansari seemed to indicate that Claimant used a cane, but that she did not feel it was required for occasional standing and walking. (R. 490.) Dr. Ansari also reported that Claimant could occasionally lift ten pounds, rarely twenty pounds, and never fifty pounds; could occasionally twist and climb stairs; could rarely stoop or crouch/squat; and could never climb ladders. ( Id .) He would likely be off task twenty-five percent or more in a typical workday. (R. 491.) Dr. Ansari also opined that Claimant would likely have more than four absences a month and that his hearing problems and blurry vision from glaucoma would further affect his ability to work. ( Id .)

         In October 2012, Claimant underwent hearing testing following several days of right ear pain. (R. 497.) His history was notable for bilateral downsloping hearing loss and tinnitus for many years. ( Id .) He did express an interest in hearing aids. ( Id .) The audiogram revealed unaided discrimination at 72% on the right and 76% on the left at 70 dB bilaterally. (R. 496.) This was noted as unchanged from the previous year. (R. 497.)

         Ophthalmology Treatment

         Ophthalmology records from Dr. Multack at Advocate Medical Group date back to 2007. A treatment note from November 27, 2007 reveals that Claimant suffered from pigment dispersion syndrome with ocular hypertension. (R. 388.) Dr. Multack opined that he would eventually suffer from pigmentary glaucoma. ( Id .) He was started on Alphagan eye drops and advised to follow-up. ( Id .) The following month Claimant had few complaints and his physician discussed intra-ocular pressure and glaucoma. (R. 384.) By January 3, 2008, Claimant's eye drops had been changed and he complained of increased burning, dryness, and redness. (R. 383.) Similar complaints followed in April 2008, at which time he was using Alphagan and Xalatan drops, and in July 2008. (R. 379, 381.) His doctor again assessed pigment dispersion syndrome and also dry eye syndrome. (R. 379.) His complaints continued at the next visit, though he said the drops helped "a lot." (R. 378.)

         By late 2008, Claimant's ophthalmologist included pigmentary glaucoma in his assessment. (R. 378.) At that time, he also noted that Claimant had no insurance and was homeless. (R. 377.) Claimant continued to follow-up at Advocate throughout 2009. (R. 372-75.) He still complained of redness, itching, burning and dryness, though he denied pain, floaters, flashers or watering. (R. 373.) On July 7, 2009, he also reported his near vision was blurred. ( Id .) In October 2009, Claimant told Dr. Multack that he ...

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