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Cotie v. Colvin

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

September 28, 2016

CHRISTIAN R. COTIE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.

          MEMORANDUM OPINION AND ORDER

          Michael T. Mason, United States Magistrate Judge.

         Claimant Christian R. Cotie (“Claimant”) brings this motion for summary judgment (Dkt. 9) seeking judicial review of the final decision of the Commissioner of Social Security (“Commissioner”). The Commissioner denied Claimant's request for disability insurance benefits under the Social Security Act, 42 U.S.C. §§ 416(i) and 423(d). The Commissioner has filed a cross-motion for summary judgment (Dkt. 17), asking that this Court affirm the decision of the Administrative Law Judge (“ALJ”). This Court has jurisdiction to hear this matter pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, Claimant's motion for summary judgment is granted and the Commissioner's cross-motion for summary judgment is denied.

         I. BACKGROUND

         A. Procedural History

         On September 21, 2010, Claimant filed his application for benefits alleging he has been disabled since August 5, 2009 due to degenerative disc disease of the lumbar spine and the cervical spine, leg pain, obesity, opiate and alcohol dependence, depression, and anxiety. (R. 20.) His application was denied initially in December 2010, and again upon reconsideration in April 2011. (R. 112-21.) Claimant appeared with counsel and testified at a hearing before ALJ Janice Bruning on February 14, 2012. (R. 64-84.) A vocational expert also provided testimony. On May 18, 2012, the ALJ issued a decision denying Claimant's application. (R. 87-98.) Claimant filed a timely request for review of the ALJ's decision with the Appeals Council. (R. 167.)

         On August 2, 2013, the Appeals Council granted Claimant's request for review. (R. 104-08.) In doing so, the Appeals Council vacated the initial decision and remanded the case back to the ALJ for re-hearing, with instructions to further evaluate Claimant's mental impairments, degenerative disc disease, and obesity, and to clarify the effect of these limitations on Claimant's occupational base. (Id.) On January 22, 2014, Claimant appeared with counsel for a second hearing before ALJ Bruning. (R. 35-63.) Another vocational expert testified at that hearing. The ALJ issued a second unfavorable decision on March 26, 2014. (R. 14-28.) On July 21, 2014, the Appeals Council denied Claimant's request for review. (R. 1-6.) At that point, the ALJ's decision became the final decision of the Commissioner. This action followed and the parties consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).

         B. Medical Evidence

         1. Treating Physicians

         Claimant was born on June 25, 1960, making him 49 years old on the onset date of his alleged disability. Claimant's medical records document a history of chronic pain, including alternating leg pain (worsening since 2001), lower back pain (dating back to 2005), and, more recently, increasing neck pain. (R. 385, 789.) Records from 2008 reveal complaints of back pain, which was treated with medication and facet joint injections with some temporary relief. (R. 389, 396, 407.) At some point in 2008, Claimant began treatment with Dr. Arpan Patel. An MRI dated November 26, 2008 showed evidence of low grade 1 spondylolisthesis at ¶ 4-5 and moderate to significant disc degeneration at ¶ 1-2. (R. 388.) In 2008 and early 2009, Dr. Patel performed several procedures on Claimant in an attempt to diagnose and relieve his lower back pain. Among these were a failed spinal cord stimulator trial, a radiofrequency ablation, and multiple epidural steroid injections. (R. 398.)

         On March 17, 2009, Claimant had an initial consultation with neurosurgeon, Dr. Sean Salehi. (R. 385-88.) In addition to lower back pain, Claimant told Dr. Salehi that he was also suffering from alternating leg pain (left worse than right), muscle weakness, stiffness, sciatica, and paresthesias. (R. 385-86.) He rated his pain as an eight on a ten-point scale. (R. 385.) At the time, he was taking Vicoprofen, Oxycontin, and Lyrica, which helped alleviate his pain. (Id.) Claimant told Dr. Salehi that he was no longer active, had gained 35 pounds in the previous six months, and that he was experiencing some depression due to his worsening pain. (Id.) Claimant also reported a 1977 motor vehicle accident, which resulted in a left ankle fracture and subsequent surgery. (Id.) At the time of the consultation, Claimant was still working and occasionally lifted up to 100 pounds. (R. 386.) He admitted to drinking at work after previously being sober for twenty three years. (Id.) Claimant also admitted to drinking alcohol on the day of his consultation to “numb the pain.” (Id.) He had smoked one and a half packs of cigarettes per day for the past thirty years. (Id.)

         After conducting a physical exam and reviewing recent MRIs, Dr. Salehi assessed lumbar degenerative disc disease and grade 1 spondylolisthesis. (R. 388.) Because Claimant was reluctant to undergo physical therapy and had showed little success with injections, Dr. Salehi recommended he obtain a discogram with Dr. Patel to confirm the true levels causing concordant pain. (Id.) If appropriate, Dr. Salehi further recommended a transforaminal lumbar interbody fusion surgery. (Id.) Dr. Patel performed the discography in April 2009 to better determine the source of his pain. (R. 398-400.)

         In May 2009, Claimant continued to complain of pain at an appointment with Dr. Patel. (R. 411.) He was frustrated, smelled of alcohol, and had recently been taking high amounts of opioids. (Id.) Dr. Patel counseled Claimant about the danger of misusing opioid medication. (Id.) Dr. Patel also recommended Claimant follow-up with Dr. Salehi because he believed he had tried all interventions he believed would be beneficial. (Id.) The next day, following the results of a drug screen, Dr. Patel discharged Claimant from his care for not being transparent about his use of medication. (R. 412.)

         Claimant continued treatment with Dr. Salehi and, on August 24, 2009, underwent a L4-S1 transforaminal lumbar interbody fusion surgery for his history of low back and bilateral leg pain. (R. 458-60.) His hospital stay for the surgery was described as “complicated” in light of his history of abuse of pain medications. (R. 454.) Prior to surgery, Claimant had been taking high doses of Oxycontin, Dilaudid, and Ultram, but he tapered his dosages one week before surgery. (Id.) During his hospital admission, he refused pain consultation, but was given lower doses of Oxycontin, as well as low doses of Soma and Norco. (Id.) He was also evaluated for depression. (R. 456.) The examining psych physician noted an ongoing struggle with alcohol abuse and opiate dependence. (Id.) Claimant's mood was dysphoric, and his affect downcast. (Id.) He also expressed criticism of doctors and accused doctors of lying to him. (Id.) His insight and judgment were noted as poor. (Id.) The doctor assessed a mood disorder, secondary to opiate dependence, and chronic pain syndrome. (Id.) Claimant rejected the recommendation for antidepressants and therapy, but agreed to a low dose of Ativan to help reduce irritability. (Id.) Ultimately, Claimant was discharged following his surgery and advised to follow-up with Dr. Salehi in two weeks. (Id.)

         Claimant did as directed and saw Dr. Salehi on September 4, 2009. (R. 554.) Overall he was “doing pretty well, ” though he had noticed neck and shoulder pain since the surgery. (Id.) Both Claimant and Dr. Salehi were optimistic about the results of the surgery. (Id.) He was advised to discontinue Oxycontin and cut down on his Norco pills. (R. 556.) Dr. Salehi also recommended physical therapy two to three times a week for four to six weeks. (Id.)

         On September 9, 2009, Claimant was admitted to MacNeal Hospital after telling his primary care physician, Dr. Michael Gershberg, that he had been experiencing shortness of breath for the past two to three days. (R. 422, 654.) Claimant believed that his decreased dosage of pain medications was likely the cause. (R. 422.) Examinations and imaging ruled out a pulmonary embolism or any cardiac related problems. (R. 425.) Instead, it was determined by multiple physicians that Claimant was suffering from opiate withdrawal. (R. 425, 428, 430.) Claimant was not interested in starting methadone treatment and was eventually discharged with low doses of Norco and Soma. (R. 422.)

         Claimant returned to see Dr. Gershberg on September 17, 2009, at which point he reported his back pain had improved. (R. 666.) A physical exam was normal and Dr. Gershberg planned to start weaning him off his pain medication. (R. 667.) But the next month, Claimant complained that he needed to take more Norco than was prescribed. (R. 669.) Dr. Gershberg recommended a referral to a pain management specialist. (R. 670.) The next week, a pain specialist told Claimant that he would not prescribe narcotic-containing medication given previous misuse of such medication. (R. 672.)

         Claimant followed up with Dr. Salehi again on November 6, 2009, about two and a half months following surgery. (R. 543.) By that point, his leg pain had disappeared and he was able to walk on a treadmill for ten minutes without pain. (Id.) He was still experiencing some right sided low back pain, worse at night. (Id.) He said that if he was particularly active during the day, he would “pay the price” the next day. (Id.) He admitted to sometimes taking more than the recommended six tabs of Norco a day. (Id.) A physical exam was essentially normal. (R. 544-45.) Dr. Salehi was pleased with Claimant's progress, although it was moving slowly. (R. 545.) He recommended an additional four weeks of physical therapy and opined that Claimant would be able to return to work at six months post-op with desk work/light duty restrictions. (Id.)

         The next month, Claimant had finished his physical therapy. (R. 675.) He still reported constant back pain to Dr. Salehi, but was noticing minuscule improvement every week. (Id.) He had not been using the bone stimulator. (Id.) Dr. Salehi recommended he stay off work until March. (R. 677.) By March 16, 2010, Claimant was feeling only minimally better than he was in December, but admitted he was at least 40-50% improved since the surgery. (R. 546.) He complained of constant pain in his lower back and a “pulling of [his] sciatica” in both legs. (Id.) He also suffered from intermittent numbness in his left foot. (Id.) Acupuncture had helped and he was wearing a bone stimulator daily. (Id.) He admitted to sometimes taking more than eight Norco tabs a day. (Id.) Claimant exhibited tenderness throughout the lumbar spine. (R. 547.) A recent x-ray revealed no evidence of instrumentation failure. (R. 548.) Dr. Salehi concluded that Claimant could gradually increase his level of activity and return to work at full duty without restrictions. (Id.) He referred Claimant to a pain management clinic because treatment of chronic pain fell beyond his expertise. (Id.)

         Claimant first visited Dr. Koehn for pain management on March 27, 2010. (R. 564.) He described his history of persistent back and leg pain, and complained of difficulty sleeping due to his pain. (Id.) Dr. Koehn assessed chronic pain syndrome, among other things, and planned to try different courses of medication to treat Claimant's pain and improve sleep quality. (R. 565.)

         Claimant continued to see Dr. Koehn on a monthly basis until early 2011. (R. 565-605.) Over the course of his treatment, Dr. Koehn prescribed several different pain medications, all with varying success. (Id.) For example, on April 16, 2010, Claimant reported he had restarted exercising and his sleep had improved. (R. 567.) But by the following month, his pain had worsened and his physical activity had decreased. (R. 567.) Despite improvement in June 2010, Claimant was suffering an “arrest of progress” in July 2010. (R. 573.) At that point, Dr. Koehn recommended steroid injections, which were administered on two separate occasions. (R. 575-78.)

         On August 28, 2010, Dr. Koehn noted short-term improvement and Claimant had been able to organize his garage and ride his bicycle. (R. 579.) But the next month, Dr. Koehn commented that, on a long-term basis, Claimant's “pain functional state has not changed.” (R. 581.) He also raised concerns regarding Claimant's overuse of pain medications. (Id.) He referred Claimant for a psychological evaluation. (Id.) On November 5, 2010, Claimant told Dr. Koehn that he was sleeping better, keeping busy with projects around the house, and felt “ready to get up in the morning and do things.” (R. 583.) A few weeks later, Dr. Gershberg counseled Claimant about his concerns regarding long-term narcotic dependence and misuse, but recommended against further surgery or injections. (R. 703.)

         Claimant returned to see Dr. Salehi for follow-up on November 26, 2010. (R. 537.) Claimant reported that his pain level remained unchanged and that he experienced “sciatic” pain with prolonged activity. (Id.) He had not yet returned to work. (Id.) A recent x-ray showed no evidence of instrumentation failure. (R. 539.) Dr. Salehi planned to obtain a spine CT to confirm there were no additional problems. (Id.) A CT from December 4, 2010 again revealed no evidence of instrumentation failure and a solid interbody fusion. (R. 542.) Dr. Salehi stressed to Claimant the importance of staying physically active, tapering off of narcotics, and weight loss. (Id.)

         Claimant visited Dr. Koehn once more on January 7, 2011. (R. 614.) During that visit, Dr. Koehn noted that Claimant continued to struggle with pain. (Id.) Claimant told Dr. Koehn that he was dissatisfied with his “pain functional state” and both parties agreed ...


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