United States District Court, C.D. Illinois, Springfield Division
SCHANZLE-HASKINS, UNITED STATES MAGISTRATE JUDGE
Kent Verne Anderson appeals from the denial of his
application for Social Security Disability Insurance Benefits
(Disability Benefits) under Title II of the Social Security
Act. 42 U.S.C. §§ 416(i) and 423. This appeal is
brought pursuant to 42 U.S.C. § 405(g). Anderson has
filed a Motion for Summary Judgment (d/e 14), and Defendant
Commissioner of Social Security has filed a Motion for
Summary Affirmance (d/e 21). The parties consented, pursuant
to 28 U.S.C. § 636(c), to proceed before this Court.
Consent to the Exercise of Jurisdiction by a United
States Magistrate and Reference Order entered August 15, 2016
(d/e 17). For the reasons set forth below, the Decision
of the Commissioner is REVERSED and REMANDED pursuant to 42
U.S.C. § 405(g) sentence four.
was born on May 11, 1965. He graduated from law school and
worked as an attorney until September 3, 2011. Anderson
suffers from lymphedema, migraine headaches, depression,
anxiety, degenerative joint disease of the left hip, sleep
apnea, restless leg syndrome, obesity, history of Harrington
rod placement for scoliosis, and history of alcohol abuse. R.
22, 47, 48.
January 4, 2010, Anderson saw Dr. Antoine Dawalibi, D.O., for
swelling in his legs. At that time, Anderson was 68 inches
tall and weighed 215 pounds. Dr. Dawalibi assessed leg edema
and venous insufficiency. R. 612-13.
approximately January 19-26, 2010, Anderson was seen at the
Mayo Clinic for several conditions. R. 700-11. Anderson saw
neurologist Dr. Fred Curtrer for migraine headaches and Dr.
Roger Shepherd in the Vascular Center for edema in his legs.
Dr. Shepherd diagnosed obstructive lymphedema in the right
leg and swelling in the left leg due to “dependency,
weight, and salt.” Dr. Shepherd prescribed compression
stockings and lubricating lotion for the skin on
Anderson's legs. Dr. Shepherd also recommended
“losing weight, exercising, and cutting back on
salt” to “help with the leg swelling.” R.
Curtrer assessed episodic migraine headaches without aura.
Dr. Curtrer prescribed Ketoprofen to be taken within 15
minutes of the onset of a headache. For severe headaches, Dr.
Curtrer recommended Rizatriptan. Dr. Curtrer also recommended
taking Divalproex and Depakote regularly to reduce the
severity of the headaches. R. 711.
February 25, 2010, a lymphoscintigram showed previous
lymphatic damage in the lower right leg, with no lymphatic
obstruction above the right knee and no obstruction on the
left. R. 688.
8, 2010, Anderson was the subject of a sleep study at the
Illinois Neurological Institute (INI) Sleep Center. Anderson
was given the study due to excessive daytime sleepiness and
fatigue, and difficulty falling and staying asleep at night.
At that time Anderson measured 65 inches in height and
weighed 232 pounds. The study showed severe obstructive sleep
apnea with associated hypoxemia and sleep disruption.
Anderson was prescribed a CPAP machine to be used at night
while sleeping. R. 662.
about September 10, 2010, Anderson saw Dr. Curtrer again at
the Mayo Clinic for migraine headaches. Dr. Curtrer
recommended adding Topamax as a prophylactic medication. R.
March 8, 2011, Anderson was seen at the University of
Illinois Department of Psychiatry and Behavioral Medicine for
worsening depression. Anderson was previously diagnosed with
dysthymia. He was undergoing regular cognitive behavioral
therapy (CBT) with Dr. McIntyre, a psychologist. Anderson
reported that his depression was worsening and he had
symptoms of anxiety, psychosis, and suicidal ideations. R.
1693. Anderson was assessed with dysthymic disorder, major
depressive disorder, and alcohol dependence in sustained full
remission. He was counseled to remove a firearm from his home
due to his suicidal ideations. He was counseled to modify his
current medications to either increase the dosage of Cymbalta
or add a second medication, Remeron. The record of the
examination was signed by a medical student and psychiatrist
Dr. Peter Alahi, M.D. R. 1695-96.
about May 20, 2011, Anderson returned to the Mayo Clinic. Dr.
Shepherd again prescribed compression stockings for the edema
and recommended diet, weight loss, and exercise. R. 751.
Anderson also reported that the Topamax for his migraine
headaches caused some tolerable sleepiness, but intolerable
depression. R. 751-52. Nurse Practitioner M.C. McDermott,
R.N., C.N.P., recommended Botulinum A Toxin (Botox)
injections and Gabapentin to reduce the frequency and
severity of his headaches. R. 755.
October 5, 2011, Anderson again went to the Mayo Clinic. Dr.
David McFadden, M.D., was Anderson's primary physician at
the Mayo Clinic at this time. R. 1248-49. Anderson reported
significant side effects with the prophylactic medications he
was taking for migraine headaches. He began Botox injections
for his headaches. R. 1252.
October 10, 2011, Anderson went to the INI Sleep Center for a
follow up visit regarding his sleep apnea. Anderson saw Nurse
Practitioner Diedra Lewandowski, M.S., A.P.N., A.C.N.P.-B.C.
Anderson reported that he was fitted with an oral appliance
to wear at night. He reported that he was taking off the CPAP
mask at night during his sleep and that he stopped using the
CPAP. Anderson reported significant daytime sleepiness.
Lewandowski's impression was that Anderson's sleep
apnea was well controlled with the CPAP, but he was not using
it. Sometimes he fell asleep without it, sometimes he took it
off inadvertently during the night, and sometimes he did not
sleep long enough at night. R. 470-71, 474.
November 18, 2011, Anderson saw neurologist Dr. Richard Lee,
M.D. for migraine headaches, restless leg syndrome, and sleep
disorder. Anderson reported that the Botox injections seemed
to help a little with his headaches. Anderson stopped taking
the gabapentin. Anderson reported that the CPAP machine was
helpful for his sleep disorder. Dr. Lee recommended
continuing the Botox injections for the migraine headaches.
November 30, 2011, a disability representative of the Mayo
Clinic completed a form for Anderson to submit with a private
disability insurance claim. The form stated, in part:
On November 29, 2011, David D. McFadden, MD stated the
patient [Anderson] is unable to work from September 3, 2011
through March 3, 2012. Recommend re-evaluate after six
months. Recommend total disability for six months.
Diagnosis: Severe obstructive sleep apnea, depression,
insomnia, restless leg syndrome. Follow-up with local primary
care provider in Peoria, Illinois.
The above information is provided for your use in processing
a disability claim.
about January 19-26, 2012, Anderson went to the Mayo Clinic.
Anderson reported to Dr. McFadden that he was still not
getting restful sleep even though he was using his CPAP
machine. Dr. McFadden stated that there was a problem with
mask incompatibility. Dr. McFadden referred Anderson to the
Mayo Clinic Sleep Clinic to address the problem. R. 1210.
Anderson saw Dr. Mithri Junna, M.D., at the Sleep Clinic. Dr.
Junna could not identify a reason why Anderson took his CPAP
mask off during sleep. Dr. Junna increased the heat in the
humidifier in the CPAP machine to reduce nasal congestion
while using the machine. Dr. Junna told Anderson to wear the
CPAP mask during the daytime for progressively longer periods
over time, starting with 30 minutes without the machine and
building up to 120 minutes with the machine running. Dr.
Junna stated that when Anderson used the machine there was no
significant leakage and he did not have residual apneas. Dr.
Junna also offered to find Anderson a less annoying mask. Dr.
Junna finally emphasized the importance of having “a
set bedtime and waketime, only using the bedroom for sleeping
and for sex, and avoiding sleeping in any other place but his
bed.” R. 1204.
this visit, the Mayo Clinic neurology department conducted an
EEG. The EEG was normal, but showed snoring and symptoms of
sleep apnea. R. 1210.
also saw psychologist Dr. Keith Rasmussen, Ph.D. at Mayo
Clinic during this visit. Dr. Rasmussen diagnosed Anderson as
noted that Anderson recently started taking Ritalin in
addition to his other medications. Dr. Rasmussen concluded
that Anderson was overmedicated and told Anderson not to take
the Ritalin. Dr. Rasmussen stated that Anderson could not
He still remains pretty depressed and nonfunctional. He is
not able to work at his job. He showed me a letter that was
given to him by his job where very specific requirements were
laid out as to how he handles his day and showing up to work
on time and so forth. He attempted to go back to work but was
unable to do that. Currently he is on Family Medical Act
Leave, and he is applying for disability. He remains pretty
dysphoric most of the time. His thoughts are pretty scattered
in the room talking with him, although his demeanor is
pleasant and polite. I do not think he is psychotic. I do not
think he is manic either. I think he is overmedicated at this
R. 1224. Dr. Rasmussen recommended electroconvulsive therapy
(ECT). Dr. Rasmussen stated that Anderson could taper off his
antidepressant medication if the ECT was effective. Dr.
Rasmussen noted that antidepressant medication can aggravate
restless leg syndrome. R. 1227-28.
February 10, 2012, Dr. McFadden wrote a letter which stated:
It May Concern:
The above referenced patient was evaluated at Mayo Clinic in
September of 2011 and more recently in January of 2012. Due
to multiple medical problems, I highly recommend patient be
considered totally medically disabled through June 1, 2012,
at which time he will be re-evaluated.
Please let me know if any further details are needed.
February 22, 2012, Anderson went to the INI Sleep Clinic for
a follow-up. Dr. Sarah Zallek assessed that Anderson was
having problems with excessive sleepiness and related
problems because he was not practicing good sleep hygiene and
poor CPAP compliance. Anderson had not followed Dr.
Junna's instructions about establishing regular sleeping
patterns. Anderson had not followed Dr. Junna's
recommendation to desensitize himself to the mask during the
daytime. Anderson reported that he regularly dozed off
without using the CPAP machine. When he used his CPAP, he
stopped using the machine if he got up during the night to go
to the bathroom. R. 1433. Dr. Zalleck noted:
Bedtime is 0030-0430. Sometimes he is on the couch late at
night and too sleepy to go to bed, so he will try to
"nap" for an hour by setting an alarm, but will
sleep through that and sleep through the night there. He used
to wake up consistently (spontaneously) around 0600, but
lately he has been sleeping as late as 0800 or 0900. He dozes
off at times throughout the day. Often he is unaware that he
is doing this. If he could choose an 8-hour window during
which to sleep he would sleep 0000-0800 or 0l00-0900.
R. 1434. Dr. Zallek noted that Anderson's psychiatrist in
Springfield, Dr. Alahi, did not agree with Dr. Rassmussen
about either stopping the Ritalin or using ECT. Anderson was
following Dr. Alahi's recommendation and was still taking
two doses of Ritalin daily. Dr. Zallek noted that the Ritalin
might be interfering with Anderson's ability to sleep at
night. R. 1433-34. Dr. Zallek recommended talking to Dr.
Alahi about discontinuing the second dose of Ritalin. Dr.
Zallek felt the restless leg medication might also be
affecting Anderson's sleep patterns. Dr. Zallek noted
that improving sleep hygiene and CPAP compliance would
probably improve his restless leg syndrome. R. 1436.
March 2, 2012, Anderson was admitted to the emergency room at
Saint Francis Medical Center in Peoria, Illinois, with
suicidal ideation. R. 1377. Anderson had a normal mood and
affect. He was not anxious. His affect was neither angry nor
blunt. He had suicidal ideations, but not suicidal plans. He
had no homicidal ideations or plans. R. 1383. Anderson was
enrolled in a partial hospitalization program and released to
go home on March 3, 2012. Anderson was diagnosed with major
depressive order, recurrent, moderate, dysthymic disorder,
and anxiety disorder. R. 1384, 1410.
March 13, 2012, to March 27, 2012, Anderson was admitted to
the Methodist Medical Center of Illinois' partial
hospitalization program (PHP) with a diagnosis of major
depression disorder without psychosis. Anderson was taking
Cymbalta and Ritalin. The medication was positive and
effective. The discharge note stated that the PHP treatment
decreased Anderson's anxiety and depression. The
admission to PHP was precipitated by Anderson's breakup
with his girlfriend. At the end of the PHP treatment,
Anderson's prognosis was good. Upon discharge, Anderson
would follow up with Dr. Alahi for medication management, and
would continue counselling with Dr. McIntyre. R. 1480, 1485.
11, 2012, state agency psychologist Dr. Thomas Low, Ph.D.,
prepared a Psychiatric Review Technique and Mental Residual
Functional Capacity Assessment. R. 1501-17. Dr. Low opined
that Anderson had depression, and the depression caused
moderate restrictions in activities of daily living; moderate
difficulties in maintaining concentration, persistence, or
pace; and mild difficulties in maintaining social
functioning. Dr. Low opined that Anderson had no episodes of
decompensation of an extended duration. R. 1511. Dr. Low
opined that Anderson's “statements regarding
depression were credible and consistent with the objective
medical findings.” R. 1513.
further opined that Anderson was moderately limited in his
ability to: understand and remember detailed instructions;
carry out detailed instructions; and maintain attention and
concentration for extended periods. Dr. Low opined that
Anderson did not have any other functional limitations due to
his mental condition. R. 1515-16. Dr. Low concluded,
“The claimant has some impairment of his attention and
can get overwhelmed at work. He can however follow simple
directions and he can do simple tasks. . . . Within the above
limits claimant retains the capacity for work.” R.
12, 2012, state agency physician Dr. Barry Free, M.D.,
prepared a Physical Residual Functional Capacity Assessment.
R. 1519-26. Dr. Free opined that Anderson could lift twenty
pounds occasionally and ten pounds frequently; stand and/or
walk for six hours in an eight-hour workday; and sit for six
hours in an eight-hour workday. R. 1520. Dr. Free opined that
Anderson should only occasionally: climb ropes, stairs,
scaffolds, and ladders; stoop; kneel; crouch; and crawl. R.
1521. Dr. Free opined that Anderson should avoid concentrated
exposure to noise due to migraine headaches. R. 1523. Dr.
Free stated that Anderson's statements about his
migraines were credible and consistent with the objective
medical findings. R. 1524. Dr. Free concluded, “The
claimant had the ability to do light work with some postural
and environmental limitations.” R. 1526.
16, 2012, Anderson prepared a Social Security Administration
Function Report/Adult form. Anderson reported that he lived
alone in his own house. He did not have a set daily routine.
He reported that it may take him all day to take his
medicines, eat, take care of his personal hygiene and get
dressed. R. 255-56. Anderson reported that he took care of a
pet dog. He took the dog to the groomer and the vet as
needed. R. 256. He did laundry and dishes. He paid for
mowing, lawn care, and house cleaning services. R. 257.
Anderson went to church two to three times a month, went to
AA meetings, and talked to his parents over the phone.
Anderson drove his own car short distances. R. 259. Anderson
opined that he could walk 50 to 150 feet without stopping; he
could pay attention anywhere from a few seconds to five
minutes; and had trouble following instructions. R. 260.
reported on the Function Report/Adult form that the U.S.
Office of Personnel Management found that he was disabled due
to migraine headaches, restless leg syndrome, depression, and
sleep apnea. R. 262, 284.
10, 2012, Anderson saw Dr. Lisa Snyder, M.D., for Botox
injections for migraine headaches. Anderson reported that the
injections were helpful for pain relief without any side
effects. Dr. Snyder found that Anderson could tolerate a
higher dose of Botox. Anderson reported increased pain since
the weather had been hotter. Dr. Snyder administered the
Botox injections. R. 1546.
August 15, 2012, Anderson saw neurologist Dr. Richard Lee,
M.D., for a follow-up visit for migraine headaches, restless
leg syndrome, depression and sleep apnea. Anderson reported
that “on August 5, 2012, he was swimming in a pool and
hit his head on the wall of the pool and had a slight head
injury.” Anderson went to the Emergency Room. He did
not have a concussion, but x-rays sowed arthritis in his
neck. Anderson reported head and neck pain after the
accident. Dr. Lee ordered an MRI of the cervical spine. R.
1577. The MRI showed limited flexion at ¶ 1,
degenerative disc disease and spondylosis. R. 1584.
September 12, 2012, Anderson saw Dr. Michael J. Gootee, M.D.,
to discuss MRI results. Anderson reported increased migraine
headaches since the pool accident. Dr. Gootee reported that
Anderson “seems to be doing well with his CPAP, but
admits to not always using this faithfully and sometimes ...