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Albertsen v. Colvin

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

August 17, 2016

CAROLYN COLVIN, Commissioner of Social Security Administration, Defendants.


          REBECCA R. PALLMEYER United States District Judge.

         Plaintiff Robert Albertsen brings this action against the Commissioner of Social Security, Carolyn Colvin, pursuant to the Social Security Act, 42 U.S.C. § 405(g) (the “Act”), seeking review of the Social Security Administration’s decision to deny Plaintiff’s application for disability insurance benefits and Supplemental Social Security income. After a hearing, an Administrative Law Judge (“ALJ”) determined that Plaintiff was disabled from May 1, 2008 to July 31, 2009, due to degenerative disc disease of the spine and hypertension. The ALJ determined that Plaintiff was not disabled before or after that 15-month period because, the ALJ concluded, before May 2008 and after July 2009, Plaintiff had the Residual Functional Capacity (“RFC”) to perform certain sedentary, unskilled, routine work.

         The Social Security Appeals Council denied review, making the ALJ’s decision the final decision of the Commissioner of the Social Security. Plaintiff has moved for summary judgment reversing the decision of the ALJ, or in the alternative, remanding his claim for further proceedings. Plaintiff contends that the ALJ erred in finding (a) that Plaintiff was no longer disabled as of August 1, 2009, (b) that Plaintiff’s mental impairments were not severe, and (c) that the side effects of Plaintiff’s medication were minimal. Plaintiff further asserts that the ALJ did not provide sufficient reasons for rejecting the opinion of Plaintiff’s treating physician, and that in testifying concerning jobs that Plaintiff can perform, the vocational expert used job criteria inconsistent with the ALJ’s RFC finding. As explained here, the court remands this case for a further evaluation of Plaintiff’s subjective symptoms and mental impairment, and for a re-evaluation of Plaintiff’s treating physician’s opinions on the question of whether Plaintiff was disabled prior to May 2008.


         A. Factual Background

         Plaintiff Robert Albertsen, born on June 28, 1961, was forty-four years old in April 2006, when he claims to have become disabled by earlier injuries to his back and neck. (Certified Copy of the Admin. Record [7], hereinafter “R., ” at 38.) Plaintiff has a high school education, and has worked as a painter and security guard. (R. at 38.) On November 2, 2006, he filed an application for disability insurance benefits, alleging disability since April 23, 2006. (R. at 121, 234.) The state agency denied Plaintiff’s application in February 2007, and again, after reconsideration, in April 2007. (R. at 121-22.) Thereafter, Plaintiff, represented by counsel, requested a hearing before an ALJ. (Id.) Following the February 5, 2008 hearing, the ALJ concluded, in a written decision, that although Plaintiff suffered from degenerative disc disease of the spine, his mental impairments were not severe, and Plaintiff was not disabled because he retained the RFC to perform sedentary work. (R. at 123-29.)

         The Social Security Appeals Council remanded that decision for a more thorough evaluation of the opinions of Plaintiff’s treating physician, Dr. John Mikuzis, and the testimony of Plaintiff’s wife, and for further consideration of Plaintiff’s mental impairment. (R. at 26.) On October 22, 2009, a second hearing took place, before a different ALJ, who heard testimony from Plaintiff and his wife, medical expert Carl Leigh, M.D., and vocational expert Grace Gianforte. (Id.) Plaintiff also presented the ALJ with evidence in the form of medical records, described in some detail below.

         On May 18, 2010, the ALJ issued a written decision, in which she concluded that Plaintiff was disabled for a closed period of time from May 1, 2008 to July 31, 2009. (R. at 22-40.) The ALJ concluded that Plaintiff’s condition had improved, and his disability ended on August 1, 2009. (Id.) On August 10, 2011, the Social Security Appeals Council denied Plaintiff’s request for review of the ALJ’s decision (R. at 10), and on May 10, 2013, Plaintiff filed this action [1] to challenge that decision.[1]

         1. Medical Evidence

         The medical evidence presented at the hearing shows that Plaintiff suffers from both physical and mental impairments. In a January 16, 2006 medical report, Plaintiff’s main treating physician, Dr. John Mikuzis, noted that he had been treating Plaintiff since November 2002 for left shoulder and left arm pain caused by a work-related injury. (R. at 375.) Although Dr. Mikuzis reported that physical therapy had improved Plaintiff’s range of motion, he noted that Plaintiff continued to experience “pain and ongoing muscle tightness, spasm, and burning” in his left shoulder area. (R. at 376-77.) Due to his physical impairments, the report concluded, Plaintiff could not return to his previous work as a painter. (R. at 377.) Plaintiff visited Dr. Mikuzis several more times in 2006 and 2007. Dr. Mikuzis’s treatment records from this period identify Plaintiff’s symptoms as including muscle weakness, muscle pain, and fatigue; Plaintiff retained normal gait and full range of motion in his joints. (R. at 381-84, 587-96.) Dr. Mikuzis prescribed Norco[2] in November 2002, which initially eased Plaintiff’s pain, but by 2007 Plaintiff required an increased dose of 3 to 4 times what he was using in 2003. (R. at 375; 600.) By October 2007, and again in December 2007, according to Dr. Mikuzis’s treatment notes, Plaintiff reported feeling increased pain, including burning and stabbing pains in his back and neck as well as numbness in his legs. (R. at 587-89.) Plaintiff also consistently reported sleep disturbance during this time. (Id.)

         On December 29, 2007, Dr. Mikuzis provided a medical narrative report to Plaintiff’s lawyer, in which he concluded that Plaintiff suffered from worsening pain and spasms in his back, neck, and arm, rendering him unable to work even on a part-time basis. (R. at 599-600.) According to the report, Plaintiff’s neck rotation was restricted by 50%, and his shoulder and upper arm strength was “4/5.” (R. at 600.) Dr. Mikuzis further noted that Plaintiff’s use of Norco had increased since 2003, he used alcohol to relieve his pain, and he was experiencing symptoms of depression, withdrawal, and anxiety. (Id.) Dr. Mikuzis opined that, because of Plaintiff’s deteriorating condition, Plaintiff was unable to engage in any gainful employment. (Id.)

         In December 2006 and January 2007, Plaintiff was examined by two state agency professionals. The first of these, Dr. Afiz Taiwo, an internist specializing in occupational medicine, noted that Plaintiff complained of sharp, constant pain in his left upper back and left shoulder, and that Plaintiff took 8-10 Norco tablets per day. Dr. Taiwo’s ultimate diagnosis was “back pain” and “elevated blood pressure.” (R. at 463-64.) Dr. Taiwo concluded, however, that Plaintiff had normal range of motion and normal gait, had no difficulty walking, feeding, bathing, dressing, driving, or shopping, and that he could lift, push, or pull up to 20 pounds. Dr. William Hilger, a psychologist, examined Plaintiff in January 2007 and diagnosed him with an “adjustment disorder of adulthood” as well as mild depression stemming from his physical difficulties and loss of employment. (R. at 470.) Dr. Hilger noted that Plaintiff demonstrated average intellectual functioning and was mentally capable of performing lighter, clerical duties that would not require him to look steadily at a computer monitor. (R. at 470-71.)

         MRI scans performed on Plaintiff in October 2008 and December 2008 revealed mild degenerative disc disease and a herniated disc, which resulted in nerve root compression. (R. at 618-19.) Then during a January 7, 2009 examination by Plaintiff’s new treating physician, Dr. Alyce Jackson, Plaintiff reported increased neck and back pain as well as muscle spasms. (R. at 612-13.) To treat his continued neck and back pain, Dr. Jackson prescribed Plaintiff several medications, including morphine, Norco, Motrin, and Flexeril, [3] and, at Dr. Jackson’s instruction, an anesthesiologist provided Plaintiff with two thoracic steroid injections. (R. at 605-07, 632, 635.)

         On February 26, 2009, Dr. Charles Harvey, a neurosurgeon, examined Plaintiff. Dr. Harvey noted that Plaintiff complained of numbness and tingling, and that Plaintiff reported that he ranked his pain as never less than five on a one-to-ten scale, and, at worst, nine. (R. at 620-23.) Dr. Harvey observed that Plaintiff’s pain was relieved by applying heat or taking pain medication, and that Plaintiff retained full muscle strength and a normal gait, and did not report joint pain. (R. at 22.) By April 2009, Dr. Harvey determined that surgery was necessary; on April 27, 2009, Plaintiff underwent an anterior cervical discectomy to treat his herniated disc and to relieve his spinal pain. (R. at 625-29.)

         Post-surgery, there are three medical examinations in the record. At Plaintiff’s first postsurgical examination, on May 19, 2009, Dr. Harvey noted that the discectomy had eased Plaintiff’s pain. (R. at 630.) Plaintiff was taking morphine, Norco, and Flexeril for pain relief on an as needed basis. (Id.) Then, on June 22, 2009, Plaintiff reported to Dr. Jackson that he was experiencing muscle spasms in his neck and numbness and bilateral pain in his neck and shoulders. (R. at 614-615.) On July 23, 2009, Dr. Harvey noted that Plaintiff “reports that he is not having any pain symptoms following the surgery, but he is having non-radiating focal pain to his mid-back between his shoulder blades. He rates his back pain symptoms 7/10 today.” (R. at 664.) Dr. Harvey also stated that Plaintiff continued to take his medications-aspirin, Norco, Flexeril, nitroglycerin sublingual tablets, [4] metoprolol, [5] and Prozac[6]. (Id.) On August 20, 2009, Plaintiff again saw Dr. Jackson. He reported suffering from posterior neck pain, and had “been experiencing increased stiffness in his neck, ” as well as muscle spasms. (R. at 666-667.)

         Plaintiff’s medical records also reveal treatment for anxiety and depression throughout 2008 and 2009. May 2008 and June 2008 psychological treatment records from the Will County Community Health Center note that Plaintiff was suffering from anxiety and depression, for which he was given Lexapro.[7] (R. at 601-604.) These treatment records do not contain any other clinical observations regarding Plaintiff’s condition. (Id.)

         On January 28, 2009, Plaintiff sought treatment for depression at Aunt Martha’s Healthcare Network, and saw a psychiatrist there, Dr. Alexander Harlan, two days later. (R. at 642.) On January 30, 2009, Dr. Harlan first diagnosed Plaintiff with major depressive disorder and prescribed Plaintiff 5 milligrams of Prozac per day. (R. at 648.) According to Dr. Harlan’s treatment note, Plaintiff reported experiencing suicidal thoughts, worsening memory, fatigue, and poor concentration and decision-making, but Plaintiff’s motor activity was within normal limits, his thought process was goal-directed, and his insight and judgment were fair. (R. at 648-652).

         During a follow-up psychiatric evaluation with Dr. Harlan on February 27, 2009, Plaintiff reported that he was suffering from fewer suicidal thoughts, but that he still had no interest in activities or a social life, and that he was still constantly tired. (R. at 646.) Dr. Harlan noted that Plaintiff’s motor activity was slow and his thought process was “circumstantial.” (Id.) Dr. Harlan also marked on the treatment form that Plaintiff’s affect was “constricted” and added a one-word note: “subdued!” (Id.) Dr. Harlan increased Plaintiff’s dosage of Prozac to 15 milligrams per morning. (Id.) Plaintiff’s general diagnoses were the same in June 2009, although Dr. Harlan documented that Plaintiff reported feeling less suicidal. (R. at 644.) Dr. Harlan continued to prescribe 15 milligrams of Prozac each morning. (Id.)

         2. Plaintiff’s Testimony

         Plaintiff testified that he was a security guard in 2006 when he left his job due to neck pain that rendered it difficult for him to sit and monitor a computer screen for an eight-hour work shift. (R. at 50.) From 2002 to 2008 Plaintiff testified that he saw a pain management doctor, Dr. Mikuzis. (R. at 54.) Dr. Mikuzis prescribed ultrasounds and massages, and “a lot of injections, ” but Plaintiff did not receive significant relief from these treatments. Plaintiff stopped seeing Dr. Mikuzis in 2008 because Plaintiff did not have insurance to cover the cost. (Id.) Plaintiff then began seeing Dr. Harvey in 2009, who recommended Plaintiff undergo a fusion and discectomy in April 2009. (Id.) Consistent with medical records, Plaintiff testified at the hearing that the discectomy alleviated his neck and back pain initially, but his pain returned to pre-surgical levels just a few weeks later. (R. at 55.)

         On the day of the hearing, Plaintiff testified that he still suffered from the same neck pain he experienced in 2006, and rated his pain at seven out of ten. (R. at 51.) Plaintiff testified that he could not fully rotate his head in either direction and that the pain makes it difficult for him to fall asleep. (R. at 51, 57.) Heating pads, hot baths, and medication provide only temporary relief, he explained. (R. at 52-53.) Plaintiff believes that his pain would prevent him from walking for more than a few blocks, standing for longer than five minutes at a time, or lifting more than 20 pounds. (R. at 59-60.) When asked whether he has side effects from his pain medications, Plaintiff testified that his memory has gotten much worse. (R. at 53.)

         Regarding daily activities, Plaintiff is unable to maintain concentration for long periods of time. (R. at 57-58.) Plaintiff testified that he is able to drive, but goes only to “the store” and the doctor’s office. (R. at 58.) Plaintiff further testified that he feels disconnected from others, and that he no longer maintains relationships with his brothers or friends. (R. at 56.) He also does not engage in hobbies he once regularly enjoyed, such as playing horseshoes and fishing. (R. at 59.) He currently sees a therapist every two to three months and takes Prozac for depression. (Id.) On the date of the hearing, he testified that he took 20 milligrams of Prozac, an increase from the amount prescribed in the last medical note in the administrative record. (R. at 64.)

         3. Testimony of Plaintiff’s Wife

         Plaintiff’s wife, Charmaine Albertsen, also testified about Plaintiff’s mental and physical impairments. Ms. Albertsen and Plaintiff have been married for 16 years. (R. at 61.) She testified that Plaintiff is unable to perform many routine daily activities, such as household chores. (Id.) She tried to teach him how to do laundry, for example, but he could not grasp how to use the buttons on the washer and dryer. (R. at 61-62.) He has similar difficulties with the television set; she noted: “[H]e can’t even find the button on the television. If he can’t work the button on the remote, he goes to the television and he can’t find the button or the volume on the television. It’s just an everyday thing with him.” (R. at 62.) Plaintiff also has difficulties remembering conversations, including what occurs on television shows; Ms. Albertsen stated that “five minutes later he’ll ask me … exactly what they just showed on the television. Then he gets aggravated and he ...

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