United States District Court, C.D. Illinois, Peoria Division
MICHAEL J. THOMPSON, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER AND OPINION
E. Shadid Chief United States District Judge
before the Court is the Plaintiff, Michael J. Thompson's,
Motion for Summary Judgment (Doc. 13) and the
Commissioner's Motion for Summary Affirmance (Doc.
The Motions are fully briefed, and for the reasons set forth
below, the Court denies the Plaintiff's Motion for
Summary Judgment and grants the Commissioner's Motion for
February 2006, the Plaintiff applied for supplemental
security income (SSI) and disability insurance benefits under
the Social Security Act, alleging a disability onset date of
October 21, 2005 due to spinal disorders. His initial
application was denied, and he filed a request for
reconsideration. His reconsideration, which included
neuropathy in his right hand, depression, and anxiety, was
denied because he was found to be capable of performing his
previous work as an apartment manager. After a hearing before
the ALJ, held on January 16, 2008, the ALJ found that the
Plaintiff was not disabled. The Plaintiff appealed the
decision to the Appeals Council, where the decision was
affirmed. The Plaintiff subsequently filed a civil action
with this Court.
Court granted in part and denied in part the Plaintiff's
Motion for Summary Judgment. On September 19, 2012, the Court
remanded the case pursuant to sentence four of 42 U.S.C.
§ 405(g) and instructed the following: 1) a
determination of whether Plaintiff's impairments equal
Listing 11.14 for peripheral neuropathies, 2) analysis of
Plaintiff's assertions of severe and chronic pain, and 3)
consideration of how Plaintiff's hand pain and numbness
factor into his eligibility for disability benefits. (AR
entered a second unfavorable decision on December 8, 2014.
(AR 596). The Appeals Council denied Review on October 19,
2015, making the ALJ's decision the final decision of the
Commissioner. Thompson filed the instant civil action seeking
review of the ALJ's Decision on December 17, 2015. (Doc.
time he applied for Social Security benefits in 2006, Michael
Thompson was a 33-year-old biracial male with a college
degree and who lived by himself in Peoria, Illinois. He
became disabled in 2005. He has never married, and has no
children. (AR 191). He suffered from back problems for many
years. (AR 88). He had been treated with exercise, therapy, a
TENS unit, medication, steroid injections, and treated by
multiple physicians. (AR 88-89; 215-17). In the past,
Thompson was a manager and accountant for the City of Peoria,
but had to stop working due to his alleged disability. He
reported that he experienced intensive swelling and it was
difficult for him to “get around.” (AR 212). He
also claims his medications are a factor in his inability to
continue working. (AR 570). On his Form 3368, he was
reportedly 6 feet tall and weighed 165 lb. (AR 211) but he
gained a significant amount of weight in 2007 (AR 548).
activities of daily living, he stated that he has issues
getting in and out of a car due to pain. A few times a week,
he experiences severe side effects from medication rand must
be extremely cautious while attempting to operate a car. (AR
244). The following details are taken from Thompson's
self-reports. Several times a day, he has pain and weakness
in his lower back, left foot, and lower leg when he stands,
gets out of bed, or bathes; he has injured himself falling in
the bathroom. (Id.; AR 259). He needs to use the
handrails when he climbs stairs, and due to his difficulties
he now only attempts to climb stairs at home. He sometimes
uses crutches. It exacerbates his back problems if he sits
for too long. He experiences issues shopping or preparing a
meal, because he can only stand 5-10 minutes at a time.
Id. He shops once a month. (AR 258). In 2006, he
reported taking between 9-11 prescription drugs and this
amount continues throughout the record. (AR 246, 254, 263-64,
286, 301, 512). He reported that he completed many household
chores, but added that he has help with all of the
activities. (AR 258). He is forgetful and has difficulty
concentrating. (AR 259). He does not sleep well. (AR 260).
Thompson only leaves the house once or twice a week to pick
up prescriptions. The neuropathy affects his ability to use
his arms and hands, affecting his ability to use kitchen
tools, carrying grocery bags, and otherwise completing
everyday tasks slowly. (AR 265). He drops things and has
problems with his balance. (AR 272). In 2007, he lost his
home due to his lack of income. (AR 279-281). He also has
severe depression. (AR 524, 542).
Claimant has an extensive medical history. His back and
sciatic nerve pain (AR 212, 403, 408) began in 1999, and in
2005-his alleged onset date-he was seen by doctors due to
pain, swelling, and redness in his legs. (AR 309, 307).
Thompson began seeing a rheumatologist in late 2005 as well
as three other doctors for the leg pain and swelling. (AR
311, 406-08). He was treated by rheumatologist Dr. Doshi at
this time. He stopped working in October 2005. Dr.
noted that Thompson was doing “reasonably well”
(AR 328) but a few months later, Dr. Nathan read an MRI scan
that revealed a narrowing of the left lateral recess due to
disc protrusion. (AR 365-66). Dr. Hemp, less than a month
later, treated Thompson at the emergency room for sever lower
back pain. (AR 336). Dr. Hemp noted Thompson's lumbar
disc disease and arthritis in his report. Id.
after, Thompson began to see Dr. Li, a rehabilitation
medicine specialist. (AR 409). Dr. Li prescribed bed rest and
treated Thompson with epidural steroid injections and a
muscle relaxant. (AR 371, 410-12). Dr. Tracy, a neurosurgeon,
also examined Thompson, but opined that the Claimant's
MRI did not show disc herniation or evidence of neural
compression. (AR 360-62). Dr. Tracy recommended physical
therapy, a shoe lift, and other at-home treatment, although
he did not think Thompson was a candidate for surgery. (AR
361). Thompson continued to receive treatment for his back
problems. (AR 396, 444-58).
began seeing a psychiatrist, Dr. Attaluri, for depression and
anxiety. (AR 469-71). Dr. Attaluri, who thought the mental
health issues were related to chronic pain, prescribed
medication. Id. Thompson was also seen by Dr.
Habecker, a state examiner, in 2006. Dr. Habecker noted
extreme lower leg sensitivity, piriformis syndrome,
degenerative disc disease, and peripheral neuropathy. (AR
380-81). Dr. Habecker stated that Thompson seemed
“drugged” (AR 379) but that Plaintiff expressed
that he had constant pain and cannot sit for more than 2 or 3
hours or stand for more than 5 minutes. (AR 378).
mid-2006, Dr. Smalley evaluated the Claimant's Residual
Functional Capacity (RFC), finding some limitations but no
significant problem with his legs. (AR 473-74, 480). Dr. Liu,
a neurologist, saw Thompson in August and observed that
Thompson had numbness and pain in his right arm, and that his
“clinical presentation is not typical for people who
have severe chronic pain” (AR 486), recommending that
Thompson get a second opinion from Mayo Clinic or another
medical center. (AR 486). Dr. Gowda gave Thompson a 10 lb.
lifting restriction (AR 563) but two days later Dr. Burke
examined him and determined that his mental capacity could
not be accommodated, because it was “compromised with
his multiple use of pain medications” preventing him
from performing tasks at his employment. (AR 577).
December 2006 and early 2007, Dr. Couri, a rheumatologist,
noted that the Claimant wished to return to work, and offered
to write a letter for him. (AR 551, 553). Dr. Couri also
opined that he didn't think Thompson had to be off the
pain medication before working. Dr. Couri wrote a letter to
the SSA in September 2007; however, the letter stated that he
would miss more than one day a week and “it would be
difficult for him to work any full-time job and be a reliable
employee.” (AR 547). After a hearing before the ALJ,
the ALJ issued an unfavorable decision on April 14, 2008.
Claimant continued to seek treatment. On his March 2012
application, Thompson stated that he lived in Oneida,
Illinois. (AR 1040). He claimed he experienced the following
medical conditions: osteoarthritis, lumbar disc disease,
neuropathy in fingers of both hands, anxiety, sciatica
neuropathy, hip bursitis, lumbar radiculopathy, cervical disc
protrusion, lumbar disc herniation, chronic lumbar disc pain,
chronic neuropathy in left leg, and depression. (AR 1108). In
2009, Dr. Jones evaluated him for his lumbar disc disease and
other spine disorders. Dr. Jones reviewed MRI and X-ray scans
and concluded that physical therapy and home exercises were
appropriate treatment. (AR 1116). Dr. Jones added that
epidural steroid injections were needed if the pain
increased. (AR 1344). Similarly, Dr. Pavlovich evaluated
these issues and came to a similar conclusion, adding that he
should continue his medication. (AR 1117). After an
assessment, Dr. Rogers, a clinical psychologist, provided a
treatment intervention for psychological pain treatment. (AR
1118). Dr. Russo regularly evaluated the Claimant for his
disc problems and related pain that resulted from these
issues, and referred him to a rehab facility for physical
therapy. (AR 1119). In March 2012, after being in a car
accident, Dr. Russo noted that Thompson does not believe that
physical therapy is working and “does not appear to be
in any acute distress but appears to be mildly to moderately
uncomfortable.” (AR 1459). Dr. Russo also reported that
his “[u]pper extremity strength and lower extremity
strength appear to be normal.” (AR 1460). Dr. Guo noted
Thompson's numbness, tingling, and sharp shooting pain in
both legs, hands, and fingers. (AR 1120). In August 2009, the
Claimant was treated by an emergency room physician who gave
him and X-ray and therapeutic services. (AR 1121).
2012 function report, Thompson said he could dress himself
and take medication, but he continues to frequently spill
things and takes rest periods. (AR 1129-30). Due to his
neuropathy he cannot enjoy many hobbies and speaks on the
speaker phone when he talks with family and friends. (AR
1133, 1591). Carrying grocery bags, etc. causes his back and
hands a great deal of pain, so he needs assistance. (AR
1138). He continues to experience problems with balance and
daily tasks, such as brushing his teeth, causes pain in his
back. (AR 1209). Sitting for an hour causes him terrible
pain. (AR 1214). His medications still affect his sight and
memory. (AR 1215). In June 2009, Dr. Zagardo found that at
the L4-L5 level, Thompson's degenerative disc change was
described as mild/moderate loss of disc space height, and
moderate diffuse disc bulge that did not displace the nerve
roots. (AR 1490). However, at the L5-S1 level, “there
is severe degenerative disc change with loss of disc space
height and disc [desiccation].” Id.
his car accident, Thompson informed his doctor that the wreck
made his neck and upper back pain worse; however, the pain
improved over time. (AR 1605, 1608, 1590, 1593, 1713, 1881).
In 2012, Dr. Russo described his pain as moderately
uncomfortable. (AR 1588). In May 2012, Dr. Couri noted that
he had more definite tenderness at the fibromyalgia tender
points and decreased neck and back movement, although his
neuropathic symptoms were mild. (AR 1605). He has been told
one leg is shorter than the other and Dr. Tony noted that he
has a slight limp. (AR 1656). In July 2012, Dr. Couri noted
that his objective symptoms included being moderately tender
at the gluteus and trochanters. (AR 1719). In 2012, Dr.
Dawalibi listed 24 different prescription medications,
over-the-counter medications, and supplements that the
Claimant was supposed to take. (AR 1785-87; 1835-36). In
2013, according to Dr. Williams, he had some new disc
protrusion at ¶ 4-L5 compared to 2009, but “no
significant compromise of the spinal canal or neural
foramina” although facet hypertrophy was present. (AR
1878). At ¶ 5-S1, there was “pronounced disc space
narrowing, and a moderate to large central disc
protrusion.” Id. There was mild foraminal
narrowing bilaterally at ¶ 5-S1. Id.
Claimant reported in October 2012 that he did not have issues
sleeping. (AR 1979). In July 2013, Dr. Mikala Brinkman found
“mild to moderate neural foraminal narrowing. No
significant central spinal stenosis.” (AR 1922). Dr.
Couri, in September 2013, noted that his tender points
included his neck, back, gluteus, and trochanters;
additionally, Dr. Couri noticed that the Claimant seemed
depressed. (AR 1965). In August 2013, Dr. Tony opined that
the Claimant appeared normal; he had normal reflexes in his
upper and lower extremities, and his neurological sensations
were found to be normal. (AR 1977). That year, he was also
receiving steroid injections for pain. (AR 1980-81). Dr. Tony
similarly gave a normal evaluation in February 2014. (AR
2018). However, he noted an abnormal vibration sensation and
bleeding per rectum. Id. According to Dr. Couri, the
EMG tests revealed definite damage to the sciatic nerve with
demyelination and axonal loss and neuropathy in his hands.
Hearings Before the ALJ
hearing before the ALJ on July 24, 2013, the Claimant and
vocational expert (VE), Dennis Gustafson, testified. The
Claimant stated that he was 6 feet tall and weighed 230 lb.
He testified that he only drives occasionally, and he drives
short distances. (AR 637). He testified that he was
completing his sister's taxes for her, but he does not
complete taxes for other individuals for money. (AR 638-39).
His sister is his caretaker who comes to his home 3-5 days a
week, but he does not pay her. (AR 240). He takes care of his
personal hygiene. (AR 641). He testified that he stopped
grocery shopping in 2007-08, nor does he cook. (AR 642). He
continues to do very light cleaning, but he has not cleaned
since 2007-08. (AR 644). He volunteered for his church in
fall 2008 and spring 2010. Id. At church, he would
volunteer for an hour or so, and help with the mailing. (AR
645). He moved from Peoria to Oneida in August 2011.
asked Thompson about his felony theft and driving on a
suspended license charges. (AR 647). Thompson testified that
he pleaded to the misdemeanor theft charge, but he was not
charged with driving on a suspended license. (AR 648).
asked why Dr. Curry did not mention his issues with his
hands, the Claimant testified that Dr. Curry treated him with
cortisone injections for hip bursitis, and does not spend a
lot of time with the Claimant when he sees him, so there
would be nothing in the reports about the hand problems. (AR
658-59). He has a lot of pain when he gets dressed, and has a
bath chair with rails. (AR 662).
was given the following hypothetical:
ALJ: Assume the past work activity, same as the
claimant's exertional capacity, and limit it at sedentary
work, with a need also to have the option to alternate
sitting and standing periodically during the day, not
necessarily at will, but as circumstances would allow, so
that if one desired, one could sit and stand equally
throughout the day. No climbing of ladders, ropes, or
scaffolds. Other postural functions performed occasionally.
Need to avoid environmental hazards. Need to avoid
concentrated exposure, let's say to all environmental
factors except noise, occasional overhead reaching. Other
manipulative functions can be performed frequently.
Limitation to the performance of simple and repetitive tasks
that would involve little or no change in work routine, and
occasional interaction with the public, coworkers, and
supervisors. So, no past work could be performed, correct?
VE: That's correct.
ALJ: Okay. So, anyway, with all that, and considering the
vocational factors, the claimant being a young individual,
would there be an[y] jobs in that national and/or regional
economy that such a person could perform? Would you clarify
with that hypothetical, despite his college degree and
professional background, there'd be no transferability of
VE: That's correct.
ALJ: So, would there be any unskilled work that could be
performed within the hypothetical?
(AR 673-75) (emphasis added). The VE responded that simple,
repetitive, unskilled, sedentary jobs are going to be manual
or manufacturing jobs, and non-machine related. (AR 675). The
VE also responded that examples of jobs that the Claimant
could perform include a shadowgraph scale operator,
production worker, stone setter, hand packager, and ampule
sealer. When questioned by the Claimant's attorney, the
VE stated that an individual performing such jobs would have
to be “on task at least 80 percent of actual time, or
90 percent of the production standard.” (AR 676). Also,
the VE stated that these jobs would require frequent use of
hands. (AR 681). The jobs did allow for sitting.
December 4, 2013, the ALJ held a supplemental hearing, in
which Stacey Anderson, the Claimant's sister, testified.
The Claimant testified first, and stated that he sees Dr.
Gupta for pain. (AR 695). He gets epidurals and steroid shots
twice a year. (AR 696). He still experiences difficulty with
bipolar disorder and has adjusted his medication for that.
(AR 698-701). Dr. Hudson diagnosed him with schizophrenia.
(AR 701). He experiences symptoms such as light-headedness,
dizziness, nausea, and vision problems. (AR 702). Because of
his neuropathy, sciatica, and hip bursitis, he uses a cane.
(AR 703). He testified that his big toe on his left foot is
totally numb, and this affects his balance. He prefers
sitting in a recliner because it takes some of the pressure
off his back. (AR 706).
Anderson testified next, and stated that she had been helping
the Claimant since 2006. (AR 712-715). According to his
sister, he drops things, is in constant pain, and she tries
to drive him to the doctor and the store when she can. (AR
720, 725). She testified that he has drastic mood changes.
(AR 722). While he used to lifeguard and be around other
people, his sister testified that now he has little patience
when he is around her kids. (AR 723). She testified that he
gets cramps in his hand and she sees him massage his hand if
he is writing. (AR 724).
second supplemental hearing on July 23, 2014, Dr. Winkler, a
medical expert, testified by telephone. (AR 728). Dr. Winkler
testified that she completed a fellowship in immunology and
rheumatology, and has a Ph.D. in microbiology; she deals with
all musculoskeletal diseases and ran a fibromyalgia clinic
for 10 years. Dr. Winkler testified that she thought it was
unclear whether Dr. Couri gave a diagnosis for fibromyalgia.
(AR 733). Dr. Winkler said that Dr. Couri did not do the
typical exam for fibromyalgia, and mostly concluded that the
Claimant had tender points. (AR 734). Dr. Winkler believes
that Dr. Couri should ...