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Thompson v. Berryhill

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

May 24, 2017

MICHAEL J. THOMPSON, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER AND OPINION

          James E. Shadid Chief United States District Judge

         Now 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. 19).[1] 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 Summary Affirmance.[2]

         I

         On 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.

         The 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 841).

         The ALJ 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. 1).

         II

         1. Medical History

         At the 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).

         For 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).

         The 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.

         Rakoff 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.

         Soon 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).

         He 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).

         In 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).

         In 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.

         The 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).

         On his 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.

         After 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.

         The 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. (AR 2044).

         2. Hearings Before the ALJ

         At the 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.

         The ALJ 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).

         When 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).

         The VE 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 skills, correct?
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.

         On 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).

         Stacey 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).

         At a 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 ...


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