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Anderson v. Commissioner of Social Security

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

March 23, 2017




         Plaintiff 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.


         Anderson 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.

         On 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.[1]

         From 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. 700.

         Dr. 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.

         On 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.

         On May 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.[2]

         On or 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. 1327.

         On 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.

         On or 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.

         On 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.

         On 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.

         On 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. R. 991-92.

         On 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.

R. 1229.

         On or 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.

         During this visit, the Mayo Clinic neurology department conducted an EEG. The EEG was normal, but showed snoring and symptoms of sleep apnea. R. 1210.

         Anderson also saw psychologist Dr. Keith Rasmussen, Ph.D. at Mayo Clinic during this visit. Dr. Rasmussen diagnosed Anderson as depressed.

         He 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 work:

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 point.

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.

         On February 10, 2012, Dr. McFadden wrote a letter which stated:

         To Whom 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.

R. 1187.

         On 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.

         On 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.

         From 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.

         On June 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.

         Dr. Low 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. 1517.

         On June 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.

         On June 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.

         Anderson 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.

         On July 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.

         On 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.

         On 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 ...

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