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Ealey v. Colvin

United States District Court, C.D. Illinois, Springfield Division

August 29, 2016

JERRY L. EALEY, SR., Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner, Social Security Administration, Defendant.

          OPINION

          SUE E. MYERSCOUGH, UNITED STATES DISTRICT JUDGE

         Now before this Court are cross-motions for summary judgment (d/e 15, 19), the Report and Recommendation of United States Magistrate Judge Tom Schanzle-Haskins (d/e 23), and Plaintiff's Objections to the Report and Recommendation (d/e 24).

         Upon careful review of the record and the pleadings, the Court OVERRULES the Plaintiff's Objections because the ALJ's decision is supported by substantial evidence. Accordingly, the Court ACCEPTS and ADOPTS the Report and Recommendation (d/e 16). The Commissioner's Motion for Summary Affirmance (d/e 19) is GRANTED. The Plaintiff's Motion for Summary Judgment (d/e 15) is DENIED. This decision of the Commissioner is AFFIRMED.

         I. BACKGROUND

         Plaintiff Jerry L. Ealey, Sr. was born on May 18, 1959. He has a high school education and previously worked as a plant operator. Plaintiff alleges that he became disabled on December 1, 2011. R. 14, 58-60, 67. He suffers from diabetes, obesity, degenerative disc disease, status post cervical spine surgery, and depression. R. 16-17.

         On January 31, 2011, Plaintiff saw orthopedic surgeon Dr. Stephen Pineda because of pain in Plaintiff's neck and shoulders. An MRI reviewed by Dr. Pineda showed that Plaintiff had degenerative changes in his cervical spine at ¶ 4-5, C5-6, C6-7, and to a lesser degree C3-4. Dr. Pineda stated that these changes had caused spinal stenosis. Dr. Pineda recommended surgery, but Plaintiff did not undergo the surgery at that time. R. 384.

         On February 7, 2011, Plaintiff saw chiropractor Dr. John L. Kain, complaining of neck and arm pain, his left hand going to sleep, headaches, and trouble lifting his right arm. Dr. Kain found that Plaintiff's range of motion in the cervical, thoracic, and lumbar spine was moderately restricted by pain. Dr. Kain also noted moderate spasm and tenderness on palpitation of the cervical and thoracic spine. A leg drop test was positive for lower back pain, and a foraminal compression test was positive for neck pain. However, strength in all extremities was 5/5. Dr. Kain assessed cervicobrachial syndrome with myospasm and lumbar facet syndrome. Dr. Kain also stated that a June 25, 2010 MRI showed severe spinal stenosis with cord compression at ¶ 4-5-6-7. R. 406. Plaintiff saw Dr. Kain again on August 12, 2011. Dr. Kain confirmed his prior assessments but added that straight leg tests were negative. R. 408.

         On November 7, 2011, Plaintiff saw Dr. David Hoelzer for an endocrine follow-up. Dr. Hoelzer stated that Plaintiff had diabetic peripheral neuropathy and diabetic retinopathy. Plaintiff reported stable numbness in his feet and toes and stable vision. Dr. Hoelzer assessed Type 2 diabetes with slowly improving control. Dr. Hoelzer continued Plaintiff's insulin medication, discussed diet and exercise with Plaintiff, and advised Plaintiff to report the results of his home glucose readings. R. 360-62.

         On the same date, Plaintiff saw Dr. Pineda, complaining of neck and shoulder pain. Dr. Pineda stated that an EMG study was descriptive of right radiculopathy and right carpal tunnel syndrome. Plaintiff denied numbness issues and, upon examination, Dr. Pineda found that Plaintiff's “deltoid, biceps, triceps, wrist flexors and extensors, finger flexors and extensors, and everything fires well.” R. 364. Dr. Pineda found that Plaintiff did not require immediate surgery.

         On January 25, 2012, Plaintiff saw his primary care physician, Dr. Dennis Yap, for a follow-up on an emergency room visit for swelling in Plaintiff's leg. Plaintiff appeared disheveled and in moderate pain. His Body Mass. Index was 35.7 and he walked with a left leg limp. Dr. Yap assessed cellulitis of the left leg. Dr. Yap refilled Plaintiff's prescription for clindamycin and advised Plaintiff to keep his leg elevated, to wear thigh high compression stockings, and to stop smoking. R. 428-29.

         On March 8, 2012, Plaintiff saw Dr. Hoelzer. Plaintiff reported glucose readings in the mid to upper 100s and numbness in his feet and toes but no significant pain. Plaintiff reported no change in his diabetic retinopathy. Upon examination, Dr. Hoelzer found a cyst in Plaintiff's skin over his left Achilles tendon. However Plaintiff had no peripheral edema or lesions. Plaintiff had mildly diminished sensation in his toes. Plaintiff's A1c reading of his blood glucose level was 7.8%. Dr. Hoelzer noted that the reading had slowly decreased over time. Dr. Hoelzer assessed Type 2 diabetes mellitus with gradually improving control. R. 357-59.

         On April 3, 2012, Plaintiff had an MRI of his left ankle. The MRI showed marked advanced diffuse tendinopathy and swelling in the left Achilles tendon, as well as a partial tear in the posterior fibers of the tendon. R. 401-02.

         On April 10, 2012, Plaintiff saw podiatrist Dr. Timothy Graham, for a follow-up on his ankle. Plaintiff reported a pain level of 5/10. Dr. Graham noted mild decrease in range of motion of the left ankle and prescribed a walking boot to be used whenever Plaintiff walked. R. 613-14.

         On May 20, 2012, Plaintiff saw Dr. Yap for vertigo. Dr. Yap found mild fatigue, dizziness, headaches, and vertigo. Dr. Yap advised Plaintiff to control his sugar tightly and recommended weight loss, a low-calorie diet, and daily exercise. R. 436.

         On May 22, 2012, Plaintiff saw Dr. Graham and reported no pain in his left Achilles tendon. Dr. Graham found considerable improvement but observed a mild decrease in range of motion. R. 611-12.

         On June 28, 2012, state agency physician Dr. David Bitzer prepared a Physical Residual Functional Capacity Assessment. Dr. Bitzer opined that Plaintiff could: (1) occasionally lift twenty pounds and frequently lift 10 pounds; (2) stand and/or walk for six hours in an eight-hour workday and sit for more than six hours in an eight-hour workday; and (3) frequently climb ladders, ropes, and scaffolds. Dr. Bitzer found no other functional limitations. R. 71-72.

         On July 12, 2012, Plaintiff saw Nurse Practitioner Pamela Brodt in Dr. Hoelzer's office. Plaintiff reported not taking insulin due to cost, missing most of his NovoLog doses regardless of whether he had insulin, and blood sugar readings in the 200s. Plaintiff's A1c was 11%. Brodt stated that Plaintiff had peripheral neuropathy with decreased sensation in both big toes but that Plaintiff had no edema and retained movement in all extremities. Brodt found decreased sensation to fine monofilament touch in both big toes. Brodt also found that Plaintiff had a normal mood and affect. Brodt assessed diabetes mellitus poorly controlled and advised Plaintiff to report home glucose readings. R. 491-93.

         On September 11, 2012, Plaintiff saw Dr. Hoelzer. Plaintiff had not reported any blood sugar readings since his last visit, but the readings in his monitor for the prior 60 days averaged 161. Plaintiff reported a tendency toward “easy fatigability.” Dr. Hoelzer assessed peripheral neuropathy with chronic numbness in his feet and toes, but he assessed no significant neuropathic pain or focal weakness. On examination, Dr. Hoelzer found diminished sensation in the toes. Dr. Hoelzer assessed poorly controlled Type 2 diabetes mellitus. R. 488-90.

         On September 21, 2012, Plaintiff saw Dr. Yap for back pain and depression. Plaintiff reported arthralgia, back pain, joint stiffness, bilateral leg pain, myalgia, and depression with feelings of sadness and stress but no difficulty concentrating, no sleep disturbance, and no suicidal thoughts. On examination, Dr. Yap found normal range of motion, strength, and tone. Dr. Yap assessed depression, neuropathic pain, and pitting edema. Dr. Yap prescribed Prozac for the depression. R. 509-12.

         On October 5, 2012, Plaintiff saw Dr. Yap. Plaintiff's BMI was 35.3. Plaintiff reported that his depression was getting better. Dr. Yap found paresthesia in both lower extremities, and pain with range of motion in Plaintiff's back. Dr. Yap also found depression and sadness but no anxiety, sleep disturbance, or suicidal thoughts. Dr. Yap continued Plaintiff's Prozac prescription. R. 506-08.

         On November 12, 2012, Plaintiff saw state agency psychologist Dr. Delores Trello for a mental status examination. Dr. Trello found that Plaintiff had a normal affect; he was oriented; and his immediate; recent; and remote memory was intact. Plaintiff reported that he bathed himself, sometimes cooked, did laundry, drove around town, and went grocery shopping with his wife. Dr. Trello assessed depression, anxious mood associated with chronic pain and medical conditions, and adjustment disorder with depressed, anxious mood. Dr. Trello assigned a Global Assessment of Functioning (GAF) score of 50, indicating serious impairment in vocational functioning. R. 534-37.

         On November 13, 2012, Plaintiff saw Dr. Kain. Plaintiff reported lower back pain, bilateral buttock burning pain, and stiffness. Dr. Kain assessed lumbar facet syndrome with myospasm. R. 556.

         On November 24, 2012, state agency psychologist Dr. David Voss prepared a Psychiatric Review Technique assessment of Plaintiff. Dr. Voss opined that Plaintiff's mental impairments caused mild restrictions on activity of daily living, mild restrictions on social functioning, mild difficulties in maintaining concentration, persistence, or pace, and no repeated periods of decompensation. Dr. Voss noted that the mental-status examination showed memory and concentration within normal limits. As a result, Dr. Voss opined that Plaintiff's mental impairments were non-severe. R. 80-81.

         On November 27, 2012, state agency physician Calixto Aquino prepared a Physical Residual Functional Capacity Assessment. Dr. Aquino's opinion on Plaintiffs residual functional capacity was identical to that of Dr. Bitzer's previous assessment. R. 82-84.

         On December 14, 2012, Plaintiff underwent a cervical MRI ordered by Dr. Pineda. Radiologist Dr. Joseph Baima found that “osseous structures are normal in alignment and signal characteristics. The cord is normal in position and signal characteristics.” However, Dr. Baima stated that Plaintiff had severe canal and bilateral foraminal stenosis from C4-5 through C6-7 with moderate canal and severe bilateral foraminal stenosis at ¶ 3-4. R. 703. On December 17, 2012, based on the same MRI, Dr. Pineda found multilevel cervical spondylosis with probable osteophyte disc complex at ¶ 4-5-6-7. Dr. Pineda stated that there was both anterior and posterior decompression. Plaintiff reported some pain and burning into his upper extremity. Dr. Pineda recommended surgery on Plaintiff's cervical spine and ordered another x-ray. The x-ray showed mild to moderate disc space narrowing at ¶ 4-5-6-7. R. 723.

         On January 4, 2013, Plaintiff saw Dr. Yap for a preoperative examination. Plaintiff complained of back pain, joint stiffness, myalgia, anxiety, depression, and sadness. Plaintiff denied crying spells, feelings of stress, sleep disturbance, or suicidal thoughts. R. 725. On examination, Plaintiff's BMI was 35.1. Plaintiff had full range of motion in his neck and normal range of motion in other joints, normal strength, and normal tone. Plaintiff had appropriate affect, normal speech, and grossly normal memory. R. 726-27.

         On January 10, 2013, Dr. Pineda performed anterior surgery on Plaintiff's cervical spine, and on January 31, 2012, Dr. Pineda performed posterior surgery on Plaintiff's cervical spine. R. 584, 684-87, 708. On February 18, 2013, Plaintiff reported pain of 0/10 to Dr. Pineda. Dr. Pineda removed Plaintiff's stitches and told Plaintiff to “limit his lifting to 10 pounds or so.” R. 682-83.

         On February 21, 2013, a cervical x-ray showed a posterior cervical fusion from C3-4-5-6-7 without evidence of hardware ...


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