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Peters v. Berryhill

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

April 12, 2018

ANTHONY D. PETERS, Plaintiff,
v.
NANCY BERRYHILL, Deputy Commissioner for Operations, Defendant.

          MEMORANDUM OPINION AND ORDER

          Michael T. Mason, United States Magistrate Judge

         Claimant Anthony D. Peters (“Claimant”) seeks reversal of the final decision of the Commissioner of Social Security (the “Commissioner”) denying his claim for disability benefits. The Commissioner has filed a cross-motion for summary judgment asking the Court to uphold the decision of the Administrative Law Judge (“ALJ”). For the reasons set forth below, Claimant's request for summary judgment is denied and the Commissioner's motion for summary judgment is granted.

         I. BACKGROUND

         A. Procedural History

         Claimant filed his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) on November 20, 2012, alleging disability beginning on November 30, 2011 due to arthritis and rickets. (R. 128.) Claimant's applications were denied initially and on reconsideration. (R.99-121.) Claimant requested a hearing before an ALJ, which was held on September 16, 2014. (R. 34-78.) On December 12, 2014, the ALJ issued a written decision finding that Claimant was not disabled. (R. 16-29.) On April 30, 2016, Claimant's request for review by the Appeals Council was denied, making the ALJ's decision the final decision of the Commissioner. (R. 1-3.) This action followed.

         B. Medical Evidence

         1. Treating Physicians

         Records before the ALJ date back to 2008. (R. 325.) In June of that year, Claimant complained of severe, intermittent left knee pain. (Id.) His doctor opined that his pain was likely related to progressive early osteoarthritis. (Id.) He recommended topical and oral anti-inflammatory medication. (Id.) At a routine appointment in December 2009, Claimant had no pain complaints. (R. 323.) His knee pain had returned by March 9, 2010 after playing basketball. (R. 322.) But by July of that year, plaintiff's knee pain had resolved. (R. 321.) He reported that he had been sober for 17 years and played basketball regularly. (R. 306.) He was described as bow legged, with a normal, fit appearance. (Id.) At the time, he was working as a freelance photographer. (Id.) Claimant had “no complaints” in October 2010 and although he was bow legged, he reported no associated problems. (R. 320.)

         In April 2013, Claimant reported to a Cook County outpatient clinic complaining of pain and stiffness from arthritis. (R. 312.) He was described with a history of rickets (diagnosed as a child and treated with casting) and arthritis. (Id.) He described his pain as a 7 out of 10 at worst, but reported relief with movement and Aleve or Advil. (Id.) At the time, he was “thinking about going back to work.” (Id.) Upon examination, Claimant exhibited a normal range of motion, normal strength, no tenderness, and no swelling. (R. 313.) The examining physician advised Claimant to continue using NSAIDs (ibuprofen or Aleve) and to add Tylenol for improved pain control. (R. 313-14). Imaging of the left knee from July 2013 revealed normal results other than anterior bowing. (R. 330.)

         On March 27, 2014, Claimant was transported to Mercy Hospital following a car accident. (R. 360.) He complained of neck and back pain, bilateral foot tingling, and right groin pain. (Id.) He exhibited some tenderness of the cervical and lumbar spine, but exhibited normal range of motion throughout. (R. 361-62.) A CT scan was negative for dislocation or fracture, but did show mild degenerative changes in the cervical and thoracic spine unrelated to the accident. (R. 361, 371.) Claimant was diagnosed with neck and back sprains, treated with pain medication, and was discharged the same day. (R. 361-62.) He was prescribed ibuprofen and flexeril and advised to follow up with a primary care physician. (R. 348.)

         Claimant presented a week later to the ER at the University of Illinois Medical Center, complaining of continued neck and left side pain, toe numbness, and intermittent shortness of breath. (R. 387-88.) The examining physician noted tenderness and decreased extension and left rotation of the neck, but normal range of motion of the back and normal strength in all extremities. (Id.) No. rib fractures were visible on x-ray. (R. 409.) A CT scan again showed no spine fractures, but did demonstrate mild to moderate degenerative changes. (R. 406-07.) An ECG was normal. (R. 404.) Claimant was diagnosed with a neck strain and rib contusion and advised to continue taking ibuprofen and flexeril. (R. 393.)

         The record before the Court includes additional medical records from treating physicians at the University of Illinois. (See R. 424-537.) Those records were not submitted to the ALJ despite Claimant being given an extension of time to submit additional records following his hearing. Claimant did submit the records to the Appeals Council in connection with his request for review. However, because the Appeals Council denied Claimant's request for review, it is not appropriate for the Court to consider those additional records here. See Farrell v. Astrue, 692 F.3d 767, 770 (7th Cir. 2012) (“Evidence that has been rejected by the Appeals Council cannot be considered to reevaluate the ALJ's factual findings.”); see also Rice v. Barnhart, 384 F.3d 363, 366 n.2 (7th Cir. 2004). To be clear, Claimant has not taken issue with the Appeals Council's decision or asked the Court to find that the additional evidence was “new” and “material.” See 20 C.F.R. § 404.970(a)(5). As such, we need not summarize or consider the additional medical records submitted after the ALJ's decision.

         2. Agency Consultants

         On January 25, 2013, Dr. Kimberly Middleton conducted an independent medical examination at the request of the Social Security Administration. (R. 291-99.) Claimant's chief complaints were rickets and arthritis. (R. 291.) He described his childhood casting treatment for rickets and explained that although he still has bowing of both femur, the casting improved it significantly. (Id.) Claimant complained that his arthritis prevents him from standing or sitting for long periods of time and causes stiffness and sluggishness. (Id.) He also avoids stairs due to pain. (Id.) Claimant also explained that he broke his right ankle and leg when he was hit by a car in 2005. (R. 292.) He still suffers from stiffness from that accident. (Id.) He was suffering from neck pain on the date of the appointment, for which he takes anti-inflammatory medication. (Id.) According to Claimant, he was fired from his assembly line job in 2003 for being “too slow.” (Id.) He later worked as a photographer, but had difficulty standing and ambulating during photo shoots. (Id.) At the time of the examination, Claimant said he did not have a physician and had not been to a doctor since 2005. (Id.) He was taking ibuprofen and Aleve. (Id.)

         Upon examination, Dr. Middleton observed severe bowing, muscle spasms and increased muscle tone of the neck, mild thoracic scoliosis, lumbar pain with bilateral hip abduction and flexion, increased muscle tone of the spine, and markedly decreased range of motion of the hips bilaterally. (R. 293.) Otherwise Claimant exhibited negative straight leg tests and full range of motion in all other joints tested. (Id.) A neurological exam was normal and Claimant had normal strength in all extremities. (Id.) Claimant had a waddling gait without an assistive device and could get on and off the exam table and walk on his toes without difficulty. (Id.) He was unable to squat greater than ten degrees with support and could not walk on his heels without difficulty due to bowing of the legs. (Id.)

         Dr. Middleton assessed rickets and arthritis and opined the following:

The claimant is expected to experience muscle weakness, stiffness and pain with activity due to the nature of osteomalacia. He would have difficulty performing work that requires heavy labor or repetitive lifting, pulling, pushing, standing, ambulating or climbing.[1]

(R. 293.)

         On February 14, 2013, agency consulting physician Dr. Gotway reviewed the record before him, including Dr. Middleton's report, and determined that Claimant was not disabled. (R. 92-103.) According to Dr. Gotway, Claimant could perform light work, including occasionally lifting up to twenty pounds, frequently ten; standing, walking or sitting for about six hours in an eight hour day; and unlimited pushing or pulling. (R. 95.) On August 1, 2013, Dr. Gonzalez reviewed the record at the reconsideration level and affirmed Dr. Gotway's findings, adding only that Claimant was limited to frequent kneeling, crouching, and crawling. (R. 110-11.)

         C. Claimant's Hearing Testimony

         Claimant's administrative hearing was held on September 16, 2014. Prior to that hearing, a senior attorney for the Social Security Administration (“SSA”) contacted Claimant for a pre-hearing conference. The transcript of that conference reveals that the attorney advised Claimant that he had a right to be represented by an attorney at his hearing; that an attorney could help him obtain information, submit evidence, and protect his rights; that certain free legal organizations may be able to assist him; and that an attorney could not charge him a fee unless he won his case. (R. 82-83.) The SSA attorney did not specifically inform Claimant of the 25% cap on attorney's fees. The attorney also obtained information from Claimant about his recent medical treatment so that he could request the records for the ALJ. (R. 84-86.)

         Ultimately, Claimant appeared at his hearing before the ALJ without counsel. The ALJ first confirmed that Claimant had previously been informed of his right to counsel and questioned whether Claimant was ready to proceed without a representative. (R. 36.) Claimant confirmed that he was. (Id.)

         At the time of the hearing, Claimant was 48 years old and residing with friends. (R. 40, 42.) He explained that he worked until November 2012 as a self-employed photographer, but stopped due to increasing problems caused by rickets and arthritis. (R. 44, 52.) Claimant previously worked as a bill collector and a ...


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