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Moreno v. Berryhill

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

March 6, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.


          SIDNEY I. SCHENKIER United States Magistrate Judge.

         Plaintiff Alejandro Moreno ("claimant" or "Mr. Moreno") has moved for summary judgment seeking reversal or remand of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") (doc. # 16: Pl.'s Mem, in Support of Sum. J.). The Commissioner has filed her own motion seeking affirmance of the decision denying benefits (doc. # 23: Def's Mot. for Sum. J.). For the following reasons, Mr. Moreno's motion for remand is denied and the Commissioner's motion is granted, I.

         On March 30, 2007, Mr. Moreno filed a claim for DIB and SSI, alleging that he became disabled on February 16, 2006, when he fell off a scaffold at work (R. 150, 336). After his claim was initially denied, he participated in a hearing on December 12, 2009; the Administrative Law Judge ("ALJ") denied benefits and the Appeals Council affirmed the denial on January 10, 2011 (R. 1-3, 18-39). Claimant filed a complaint in the district court and the Commissioner agreed to a voluntary remand; the case was remanded to a new ALJ for further proceedings to reassess the claimant's mental impairment in accordance with the special technique at 20 CFR 404.1520a and 416.920a, [3] as well as to reevaluate claimant's residual functional capacity ("RFC") and the opinions of his treating doctors (R. 810, 989).[4] A new ALJ held a hearing on February 5, 2014, at which claimant (represented by counsel), a vocational expert ("VE"), a medical expert, and claimant's wife all testified (R. 863). On June 17, 2014, the ALJ ruled that claimant was not disabled, and the Appeals Council upheld the ALJ's determination, making it the final opinion of the Commission (R. 790-93). See 20 C.F.R. § 404.981; Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012).


         Mr. Moreno contends that he is unable to work because of both physical and mental impairments: various problems related to pain in his lower back, legs and elsewhere, high blood pressure, and depression that is a direct result of his ongoing chronic pain (R. 180, 243). Mr. Moreno's initial physical injury resulted from a 2006 fall off a scaffold that was approximately five feet above the ground (R. 336). Mr. Moreno alleges that his pain from the fall has not abated over the years, and instead has worsened and spread, eventually becoming so severe and pervasive that it both prevents him from working and also causes severe depression that contributes to his inability to hold a job (R. 621, 868, 878).

         Claimant makes three arguments in favor of remand: (1) the ALJ's RFC determination was flawed because it did not include a limitation for work involving only one-two step tasks and did not account for his moderate restrictions in concentration, persistence and pace; (2) the ALJ erred by failing to submit five years of medical records from claimant's treating psychologist and psychiatrist for consideration by the Agency psychological consultant; and (3) the ALJ failed to consider how the combined effects of claimant's impairments, particularly his obesity, affected his ability to work. Below, we set forth only those facts from the lengthy record that are relevant to our decision.


         With respect to Mr. Moreno's physical pain, the longitudinal medical record (between February 2006 and January 2014) suggests that while Mr. Moreno's pain in his back and extremities may have begun after his fall, his continued discomfort did not necessarily arise from that particular single injury, and persisted long after he recovered from his fall. Moreover, as we describe below, the record shows that after April 2007, Mr. Moreno's medical treatment for his pain was primarily limited to medication management; his prescriptions for pain medication were apparently refilled during visits to several health clinics that were mostly unrelated to his back impairment.

         Regarding his back injury in February 2006, Mr. Moreno had an x-ray immediately after the fall that showed no fracture or subluxation and normal bone density (R. 334, 475). A second x-ray taken three weeks later was also normal (R. 357). An EMG performed in June 2006 revealed acute L4 radiculopathy.[5] From the time of his accident until December 2007, Mr. Moreno visited Advocate Christ Medical Center ("Advocate") for treatment of all his medical needs, including a diagnosis of diabetes, management of his high blood pressure, and other acute issues (R. 440-485). He simultaneously received treatment for his pain from orthopedist Richard Lim, M.D., of Midwest Orthopaedic Consultants and underwent physical therapy for the first nine months after his accident; the physical therapy provided slow and only partial pain relief (R. 372-401).

         Although Mr, Moreno continued to complain of back pain during the first year after the accident, his doctors often could not identify a consistent source of his discomfort (R. 375-77, 405). For example, in December 2006, ten months after his injury, Mr. Moreno still complained of back pain even though Dr. Lim noted that all diagnostic testing "failed to reveal a source of his problems" (R. 376). Instead, Dr. Lim concluded claimant's pain was myofascial in nature (R. 379, 381).[6] In April 2007, Dr. Lim noted that, based on diagnostic testing, including several MRIs and another EMG, Mr. Moreno was not a candidate for surgery (R. 377, 386, 395, 397).[7] Instead, Dr. Lim referred Mr. Moreno to a psychologist for chronic pain management and a pain doctor for a possible epidural injection (Id.). Mr. Moreno had a nerve block injection performed by a pain specialist in April 2007 (R. 490). As described below, he also began seeing therapist Enrique Gonzalez, Ph.D, and psychiatrist Walter Pedemonte, M.D., for mental health treatment related to his chronic pain.

         After April 2007, Mr. Moreno's physical pain was treated primarily with narcotics and other prescription and over-the-counter medication (R. 381, 440, 447-49, 566). Claimant's complaints of pain continued, but later examinations continued to find no specific cause and he did not display functional limitations. For example, at a consultative examination in February 2008 in connection with Mr. Moreno's claim for benefits, Liana Palocci, D.O., noted that Mr. Moreno had normal range of motion in his cervical spine, knees, ankles and hips. He had a somewhat limited range of motion in his lumbar spine but no tenderness, and was able to squat and walk heel-to-toe (R. 536-37). Hilda Martin, M.D., the medical expert who testified at Mr. Moreno's second hearing, concurred that Mr. Moreno's spine injury was likely not the cause of his ongoing pain, because he was able to squat and walk heel to toe, which would be unlikely with a back injury (R. 906). Dr. Martin also testified that when she has a patient like Mr. Moreno, who complains of pain everywhere, she asks about depression (R. 905).

         Mr. Moreno continued to receive medical treatment from Advocate Christ Medical Center between February 2008 and June 2012 (R. 1144-1267, 1666-1885).[8] Notes from these appointments list up to nineteen different medications Mr. Moreno was prescribed for various physical and mental health issues (R. 1147). He visited Advocate for a variety of reasons: management of his diabetes, Bell's Palsy, pancreatitis, chest pain assessed to be caused by hyperventilation, eye pain, and medication refills; notes also mention chronic back pain and his treatment for depression (R. 743, 1150, 1152, 1212-14, 1668, 1701). Despite the existence of notes mentioning Mr, Moreno's back pain and pain medications, there is no evidence that he underwent diagnostic testing or had medical treatment for his back pain beyond that described above during the first year after his accident.

         In 2009 and 2010, Mr, Moreno also visited Lawndale Christian Health Clinic for management of his various physical issues, particularly his diabetes and high blood pressure; during these visits, Mr, Moreno also discussed his treatment for depression and sometimes obtained medication refills for his back pain (R. 564-631). A medical note from Advocate in November 2010, states that claimant's wife informed the clinic that he was "no longer being followed by Lawndale Christian Center" (R. 1203).

         With respect to his mental health impairments, claimant began seeing Dr. Gonzalez in April 2007, because Dr. Lim felt that there was nothing else he could do physically for Mr. Moreno (R. 375, 633). Mr, Moreno saw Dr. Gonzalez between one and four times each month beginning in April 2007 and continuing until at least June 2013 (R. 633-726, 2039). Initially, Dr. Gonzalez diagnosed Mr. Moreno with "adjustment disorder with depressed mood [and] pain disorder associated with psychological factors" (R. 633). Two months later, in June 2007, Mr. Moreno had an initial consultation with Dr. Pedemonte who prescribed anti-depressants and other psychiatric medications (R. 642, 756). From March 2008 until the end of 2013, Mr. Moreno saw Dr. Pedemonte once a month for medication management (R. 1927-1943, 2045). At the March 2008 appointment, Dr. Pedemonte diagnosed Mr. Moreno with "severe depression secondary to accident" (R. 1928).[9]

         Dr. Gonzalez's treatment notes reflect that initially, Mr. Moreno was unaware of the relationship between his chronic pain and the fact that he was feeling depressed, but that he eventually began to realize the connection (R. 635, 710). Notes from throughout the treatment period show that Mr. Moreno's mood fluctuated but that he reported feeling better after his therapy sessions (640). On several occasions, Mr. Moreno told Dr. Gonzalez that keeping busy and maintaining a schedule and routine helped him manage his depression and improve his outlook (R. 638, 649, 657, 676, 1197, 1980, 2000). Specifically, Dr. Gonzalez's notes show that at different times throughout the claims period, Mr. Moreno was able to care for his daughter while his wife was at work, walk his daughter to school, prepare meals for his wife, and generally establish a routine and calendar of activities (Id.). While Mr. Moreno also complained about feelings of hopelessness and lethargy, these symptoms tended to ease whenever he was able to establish and maintain a routine, set and follow through with short-term goals, and engage in regular sleep (Id., 2001).

         Dr. Pedemonte's notes from his appointments with Mr, Moreno all follow the same, single paragraph format, which includes sections for clinical summary, current mental status, medication and side effects, and prognosis (R. 756-61, 780-89). These short forms are nearly identical from month to month with respect to diagnosis (severe depression), mental status, [10] and prognosis (fair) (R. 756-61). Although the "clinical summary" sections from month to month are nearly identical in diagnosing severe depression, the clinical summary notes from August, October, and November 2008 also state that "patient is showing some degree of improvement" (R, 775-76). In December 2008, the clinical summary states that "[t]he patient is responding well to medication. The patient is not (sic) longer depressed. The patient is in a better mood, not (sic) longer anxious pt is currently unable to sleep" (R. 776). The "current mental status" portion of this note remains identical to earlier ones, assessing Mr. Moreno with, inter alia, anxious affect, and a fair prognosis (Id.).

         In October 2009, Dr. Pedemonte completed a mental health RFC for Mr. Moreno that diagnosed him with depression and assessed him as having a "moderately poor" prognosis, a GAF of 40, [11] and a number of signs and symptoms of depression, identified via check boxes (R. 780-81).[12] Dr. Pedemonte also opined (via check boxes) that Mr. Moreno had "no useful ability to function" in all sixteen listed "mental abilities and aptitudes needed to do unskilled work" (Id.). When asked on the form to explain the limitations falling within the three most limited categories, Dr. Pedemonte did not respond (Id.).

         After the October 2009 RFC, Dr. Pedemonte's monthly treatment notes about claimant continue to repeat the same information for his current mental state and continue to assess claimant's prognosis as "fair" (R. 1932-33). In these notes, Dr. Pedemonte's "clinical summary" repeats itself for 4-5 months and then changes to use different language to describe claimant's depression for another 4-5 months before changing again (R. 1930-37).[13]

         Although treatment notes from Dr. Gonzalez reflect that Mr. Moreno had ups and downs in his mood and occasional suicidal ideations, his fluctuations never led any medical professional to opine that he needed hospitalization or more intense treatment beyond weekly therapy sessions (R. 645, 661 -62, 715). Claimant also told Dr. Gonzalez that he sometimes had problems with memory and was trying to make changes at home to improve his forgetfulness (R. 659, 683, 713). At many of his appointments in 2007 and 2008, he reported having low back pain, although he also reported improvement in his pain at times (R. 635 - 680, 686, 721).

         Mr. Moreno also underwent several psychiatric consultative examinations with respect to his claim for benefits. First, in August 2007, Mr. Moreno underwent a psychiatric examination by Herman Langner, M.D., for the bureau of disability determination services (R. 405). Dr. Langner diagnosed claimant with depression - not otherwise specified, and a GAF for 45-50 (R. 407). He noted in his report of the examination that Mr. Moreno had some trouble with immediate memory, but that it may have been the result of language difficulties (R. 406). In September 2007, Margaret Wharton, Psy.D, completed a mental health RFC based on Dr. Langner's examination. She found Mr. Moreno to have mild limitations in his ability to perform activities of daily living and to maintain social functioning, and moderate difficulties with concentration, persistence and pace (R. 418). Specifically, Dr. Wharton checked boxes that assessed Mr. Moreno as having moderate limitation in the ability to understand and remember detailed instruction, the ability to carry out detailed instruction, and the ability to maintain attention and concentration for extended periods (R. 419). She assessed Mr. Moreno as being "not significantly limited" in his ability to perform all other listed activities concerned with understanding and memory[14] and sustained concentration and persistence.[15] In her written notes, Dr. Wharton stated, inter alia, that Mr. Moreno's "cognitive and attentional skills are intact and adequate for simple one-two step work tasks" (R. 424).

         In February 2008, Mr, Moreno underwent another psychiatric evaluation by DDS, this time by Michael Stempniak, Ph.D. Dr. Stempniak diagnosed Mr. Moreno with major depressive disorder and noted that he appeared to be of low average intelligence and had some difficulty with memory and concentration when asked to repeat digits and do basic math problems (R. 540, 542). Based on this examination, Commission psychologist Tyrone Hollerauer, PsyD, completed a psychiatric review of Mr. Moreno, assessing him as not having a severe impairment (R. 542). Dr. Hollerauer diagnosed Mr. Moreno with "Major Depression 'mild' in severity" (R. 545). With respect to the "Paragraph B" criteria, Dr. Hollerauer checked the boxes that assessed Mr. Moreno as having "mild" limitations with all three criteria - activities of daily living, social functioning, and concentration, persistence and pace" (R. 552).

         In October 2009, Mr. Moreno visited Lawndale Christian Health Center and met with Michael Hansen, Psy.D, because he was having suicidal thoughts (R. 621). This visit did not result in a hospital admission; instead, Mr. Moreno agreed to implement daily activities and behaviors he enjoyed, to track his mood, and to work on relaxation exercises (R. 622).


         In his opinion dated June 17, 2014, the ALJ followed the familiar five-step process for determining disability, 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a). The ALJ found that Mr. Moreno had the following severe impairments: lumbar disc disease, myofascial pain syndrome, left knee pain, obesity, and depression, but that none of them met or equaled a listing (R. 813-14). The ALJ found that Mr, Moreno's hypertension and diabetes were not severe, explaining that the record shows that both conditions are well managed with medication when Mr. Moreno was compliant, and that the single visit Mr. Moreno had to the hospital for chest pain was determined to be related to hyperventilation and ...

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