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McWilliams v. Berryhill

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

April 25, 2017

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


          Michael T. Mason, United States Magistrate Judge:

         Claimant Scott McWilliams (“Claimant”) brings this motion to reverse the final decision of the Commissioner of Social Security (“Commissioner”), denying Claimant's claim for Disability Insurance Benefits (“DIB”) under the Social Security Act (“the Act”). 42 U.S.C. §§ 416(i) and 423(d). The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Claimant asks that the court reverse the decision of the Administrative Law Judge (“ALJ”), and the Commissioner asks that the decision be affirmed. This Court has jurisdiction to hear this matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that follow, Claimant's motion [20] is denied.

         I. BACKGROUND


         Claimant filed for DIB on March 29, 2012 alleging disability beginning on March 27, 2012. (R. 14.) The Social Security Administration first denied his claim on July 26, 2012, and then again after reconsideration on October 4, 2012. (R. 97-98.) Claimant participated in a hearing before ALJ Patrick Morrison on August 15, 2013. (R. 32.) Claimant, represented by counsel, and Vocational Expert (“VE”) David Oswald testified during the hearing. (R. 32-84.) The ALJ issued a decision on October 9, 2013, denying Claimant's claim for benefits. (R. 14-24.) The Appeals Council denied Claimant's request for review on December 23, 2014. (R. 1-3.) The ALJ's opinion became the final decision of the Commissioner. 20 C.F.R. § 416.1481; Zurawski v. Halter, 245 F.3d 881, 883 (7th Cir. 2001). Claimant subsequently filed this action in the District Court.

          B. Medical Evidence

          As of his alleged onset date of March 27, 2012, Claimant alleges disability due to degenerative disc disease (“DDD”), slipped and protruding disc, cervical radiculopathy, bipolar disorder, and general anxiety disorder. (R. 175.)

         1. Treating Physicians

         i. Physical Health Treatment

         Dr. Patti Peterson of Dickinson Neurology Associates first saw Claimant after he tripped while working on a loading dock and struck his right hip and shoulder on concrete in November 2005. (R. 221.) Dr. Peterson's initial impression was that Claimant experienced new-onset numbness and weakness of the right upper extremity. (Id.) An MRI of his right shoulder revealed “mild degenerative changes in the acromioclavicular joint and mild tendinopathy of the two supraspinatus tendon.” (Id.)

         On September 11, 2006, Dr. Peterson reported that Claimant's cervical radiculopathy was aggravated by his work as a truck driver and suggested changing pain medications from Ultram to Vicodin. (R. 225-26.) Claimant followed up with Dr. Peterson on October 19, 2006. (R. 227.) In this examination, Claimant reported increased pain in the shoulder and arm, specifically when driving. (R. 228.) Dr. Peterson noted that Claimant was taking his prescribed Vicodin for pain management but was also taking Norco prescribed from an unknown source. (Id.)

         Claimant saw Dr. Peterson on April 20, 2007, at which time she documented that he was being followed for right C6-C7 radiculopathy secondary to a disc osteophyte complex at ¶ 6-C7. (R. 222.) He reported considerable difficulty with his neck, shoulder, and right forearm pain. (Id.) Dr. Peterson noted that she did not feel that Claimant had “enough qualification for disability for his cervical radiculopathy[, ]” but that his bipolar disorder may be another issue. (Id.)

         On July 5, 2007, Claimant was treated by Dr. Peterson and reported continued problems with pain at the right wrist that radiated down his arm, but he denied further problems with shoulder pain. (R. 221, 224.) Her impressions were: “1. Right C6-C7 radicularpathy with a negative EMG and a disc osteophyte complex on MRI. […] 2. Low back pain. 3. Bipolar disorder followed by Dr. Barber.” (R. 223.)

         On April 25, 2011[2], views of Claimant's cervical spine showed, “[m]oderate disc height loss and moderate DDD at ¶ 6 - - C7. Mild DDD throughout the remainder of the cervical spine. [M]oderate facet degenerative changes at the left side of the C4 - - C5.” (R. 288-89.) Claimant was described as an individual with pain in his neck and limited range of motion, specifically with limitations turning his head to the right. (R. 289.)

         On July 11, 2011, A.P., lateral, and swimmers views of Claimant's thoracic spine showed “[m]ild diffuse DDD” and “[n]o fracture or subluxation.” (R. 288.) Claimant received an L5, S1 transforaminal injection to relieve back pain with lumbosacral radiculopathy and also a “right cervical and thoracic trigger point injection right C5-T2” for “myofascial pain” on August 12, 2011. (R. 281.) Both injections were performed by Dr. Wenying Niu at Iron Mountain VA Hospital (“VA Hospital”). (R. 282.) Claimant contacted Dr. Niu on August 17, 2011, and reported that he was doing “great” after the injections. (R. 284.)

         On December 22, 2011, Claimant presented to the VA Hospital complaining of chronic back pain that increased daily during the last several days. (R. 262.) He also experienced an on/off stabbing feeling in his lower back. (R. 264.) He was already on Vicodin and taking Naproxen with food. (R. 262.) Peggy Keuler, NP, documented that they would bump up the titration schedule of Gabapentin and try Flexeril. (Id.)

         During a January 23, 2012 check-up at the VA Hospital, Claimant reported feeling well overall. (R. 256.) Dr. Sheela Sangoram documented that Claimant had chronic lower back pain. (Id.) Nurse Keuler informed Claimant that the results of his recent CT scan were, “[l]eft L5 pars defect with grade 1 L5 on S1 anterolisthesis and uncovering of the posterior margin of L5-S1 disc” with “[m]ild disc degenerative changes at other levels.” (R. 255.) A pain intervention consult was ordered. (Id.)

         On March 12, 2012, Claimant received a right C4-T3 and left L4-C7 trigger point injection performed by Dr. Niu to alleviate cervicothoracic pain. (R. 249.) Dr. Niu noted that Claimant's chronic lower back pain had improved 80% from his last injections. (R. 251.) Claimant reported significantly improved daily function that allowed him to sit for longer than 30 minutes without pain. (Id.) He described his recurrent midline thoracic pain as a constant two- to-nine out of ten. (Id.) Standing, walking, or using his right arm aggravated the pain. (Id.) Claimant also described burning pain from his neck to the left shoulder and explained that he did not have time for physical therapy because of work. (Id.)

         Claimant contacted the VA Hospital on March 13, 2012 to report severe pain in his lower back while working. (R. 248.) He did not want to have to take more time off work for another injection. (Id.) The pain was described as a constant ache at two out of ten. (Id.) On March 23, 2012, Claimant called the VA Hospital to make an appointment with his primary care doctor “concerning pain and inability to work the way he needs to, ” and planned to bring in disability paperwork. (R. 355-56.)

         On March 26, 2012, Claimant was again treated at the VA Hospital for lower back pain. (R. 243.) Dr. Sangoram documented that Claimant's increased back pain made it difficult to drive his truck, and he wanted to apply for disability. (R. 243-45.) Dr. Sangoram changed Claimant's pain medication from Vicodin to Oxycodone after Claimant reported insufficient pain relief from Vicodin. (R. 245.) It was noted that he did not take his Gabapentin prescription on a regular basis. (Id.)

         On August 13, 2012, Claimant presented to the VA Hospital's Emergency Department after pulling something in his back while he was moving a pot. (R. 324.) He described an immediate sensation of pain in the low back that radiated down his right leg. (Id.) He hoped to receive an epidural injection, but was informed that they did not administer those in the Emergency Department. (Id.) On exam, his back appeared unremarkable, but he was palpably tender in the right paraspinous muscles in the lower lumbar region. (R. 326.) The pain was treated with Ibuprofen. (Id.) Claimant felt better and was discharged that same day with instructions to call the pain clinic for further treatment. (R. 326-27.)

         On August 17, 2012, Claimant contacted the VA Hospital to make an appointment for a trigger point injection with Dr. Niu. (R. 322.) His pain level was described as a three. (Id.) Claimant received another trigger point injection by Dr. Niu on October 17, 2012. (R. 413.) Dr. Niu documented that Claimant had significant relief in his cervicothoracic region until three months ago. (R. 414.) The pain radiated from his neck and upper thoracic to both shoulders and his right upper arm. (Id.)

         Claimant attended physical therapy on October 22, 2012 for training in the trigger point injection treatment. (R. 412.) His pain was a zero out of ten. (Id.) On November 2, 2012, Claimant followed up with Dr. Niu. (R. 405.) Dr. Niu noted that Claimant's current pain level was two out of ten, but that the pain ranged from one- to-eight out of ten over the last couple weeks. (R. 405-06.) Dr. Niu also reported that Claimant “scored 38/100 on the Quebec Back Pain Disability Scale with 0 indicating no functional limitation and 100 indicating complete disability.” (R. 406.) At this follow up, Dr. Niu recommended that Claimant continue physical therapy. (Id.)

         Claimant attended six physical therapy sessions in November 2012. (R. 399-406.) He typically described his pain as a two out of ten, but he explained that the pain fluctuated. (R. 403-05.) Overall, he found that the injections provided good temporary relief and that he was in less pain after his physical therapy sessions. (R. 405-06.) The physical therapist noted on November 23 that Claimant was inconsistent with his home health exercises. (R. 402-03.) On November 30, 2012, Claimant said that he was not able to do his home exercises because of pain in his lower back. (R. 399.)

         Claimant attended physical therapy on January 8, 2013, and explained that he missed the last few appointments because of stress in his family life. (R. 396.) Claimant reported pain as a result of being unable to do the exercises, and described his pain as a one out of ten at rest. (R. 397.) He did not have any severe episodes of disc pain since starting physical therapy. (Id.)

         During physical therapy on February 1, 2013, Claimant explained that multiple personal issues prevented him from attending physical therapy the past few weeks. (R. 390.) Claimant had limited performance in his home exercises, and the therapist noted that more consistent performance needed to be seen in order to justify continued therapy. (R. 390-91.) Claimant attended physical therapy on February 8, 2013, and reported significant improvement in his range of motion. (R. 390.) He also reported that he was performing his exercises regularly. (Id.) Claimant attended physical therapy on at least four other occasions between February 15 and March 18, 2013. (R. 387-89.) He reported that he was doing better, although he still had some bad days. (R. 389.)

         On February 25, 2013, the physical therapist documented that Claimant may be nearing his maximum level in physical therapy. (Id.) Claimant attended physical therapy on March 18, 2013, and reported one episode of lower back pain since his last session that occurred while waving flags at a worship service the day before. (R. 387.) The physical therapist noted that Claimant's lower back pain continued to improve and that neck mobility and pain were better, although Claimant still had difficulty bending his head to the left. (R. 387-88.)

         ii. Mental Health Treatment

         On September 11, 2006, Dr. Peterson reported that Claimant had voluntarily stopped taking Seroquel and Lexapro, medications prescribed to treat his personality disorder. (R. 225.) Dr. Peterson articulated concern about Claimant's decision, noting that the previous time Claimant stopped taking the medication, he “had a panic attack and ended up in the hospital.” (Id.) Dr. Peterson documented on April 20, 2007 that Claimant was currently being treated for his bipolar disorder by Dr. Barber at the VA Hospital.[3] (R. 222.) On July 5, 2007, Dr. Peterson noted that that Claimant exhibited signs of a mood disorder, prescribed a mood stabilizer, and planned to refer Claimant to a psychiatrist. (R. 224.)

         On October 24, 2011, Claimant refused to complete a phone interview with the VA Hospital for a mental health consult. (R. 264.) On July 1, 2012, Dr. Gregory Patterson saw Claimant at the VA Hospital and documented that Claimant “decided to discontinue treatment before setting formal treatment goals. He stated his belief he is doing well enough with medication and his current resources.” (R. 424.) Claimant contacted the VA Hospital for a behavioral health consult on August 13, 2012. (R. 330.)

         Dr. Patterson performed an intake interview at the VA Hospital on September 11, 2012.[4] (R. 314.) Claimant's main problem at the time was insomnia, but he reported struggling with anxiety recently. (R. 315.) Dr. Patterson's diagnostic impressions were as follows: Axis I: Anxiety disorder NOS (not otherwise specified), insomnia, depressive disorder NOS (r/o bipolar disorder, largely in remission), history of alcohol dependence; GAF score of 53. (R. 319.) Claimant ...

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