United States District Court, N.D. Illinois, Eastern Division
ANTHONY D. PETERS, Plaintiff,
NANCY BERRYHILL, Deputy Commissioner for Operations, Defendant.
MEMORANDUM OPINION AND ORDER
Michael T. Mason, United States Magistrate Judge
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.
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
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.)
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.)
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.)
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.)
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
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.)
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.
Middleton assessed rickets and arthritis and opined the
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.
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.)
Claimant's Hearing Testimony
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.
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.)
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 ...