United States District Court, N.D. Illinois, Eastern Division
CHRISTIAN R. COTIE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.
MEMORANDUM OPINION AND ORDER
Michael T. Mason, United States Magistrate Judge.
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
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.)
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).
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.)
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.)
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.
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.)
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.
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.
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.)
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.)
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.
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.)
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.)
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.)
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.
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.)
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 ...