Filus v. Astrue

• Decision Date: 28 December 2011
• Docket Number: CAUSE NO. 1:11-CV-00106
• Parties: ROBERT FILUS, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Indiana

ROBERT FILUS, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

CAUSE NO. 1:11-CV-00106

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION

Dated: December 28, 2011

OPINION AND ORDER

Plaintiff Robert Filus, who is proceeding pro se, appeals to the district court from a final decision of the Commissioner of Social Security ("Commissioner") denying his application under the Social Security Act (the "Act") for a period of disability and Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI").¹ (See Docket # 1.) For the following reasons, the Commissioner's decision will be AFFIRMED.

I. PROCEDURAL HISTORY

Filus first applied for DIB and SSI on December 3, 1997, alleging disability as of August 2, 1996. (Tr. 428.) On October 15, 1999, after a hearing, the Commissioner found that Filus could perform a restricted range of light work and thus denied his application. (Tr. 428-38.) Filus did not appeal that decision. (Tr. 18.)

Filus filed the instant application for DIB and SSI benefits on October 27, 2003, alleging the same onset date of August 2, 1996. (Tr. 18.) Filus was last insured for DIB on December 31,2002 (Tr. 19), and therefore, he must establish that he was disabled as of that date in order to recover DIB benefits. See Stevenson v. Chater, 105 F.3d 1151, 1154 (7th Cir. 1997). The Commissioner denied Filus's application initially and upon reconsideration, and Filus requested an administrative hearing. (Tr. 74-86.) A hearing was conducted by ALJ Steven Neary, at which Filus (who appeared pro se) and a vocational expert testified. (Tr. 650-69.) On June 27, 2007, the ALJ rendered an unfavorable decision to Filus, concluding again that he was not disabled because he could perform a restricted range of light work. (Tr. 64-73.)

The Appeals Council granted Filus's request for review of the ALJ's decision and ultimately remanded the case. (Tr. 578-80.) On remand, ALJ Don Paris conducted two hearings at which Filus (who this time was represented by counsel at both hearings) and a vocational expert testified. (Tr. 670-713.) On January 13, 2010, the ALJ for the third time denied Filus's application, again concluding that he could perform a restricted range of light work. (Tr. 18-26.) The Appeals Council denied Filus's request for review, at which point ALJ Paris's decision became the final decision of the Commissioner. (Tr. 11-13.)

Filus filed a complaint with this Court on March 29, 2011, seeking relief from the Commissioner's final decision. (Docket # 1.) In his appeal, Filus advances a laundry list of purported errors by the ALJ, including (1) finding that Filus's degenerative disk disease did not meet or equal Listing 1.04, Disorders of the Spine; (2) improperly weighing the medical source opinions; and (3) improperly discounting the credibility of Filus's symptom testimony. In addition, Filus asks that the Court consider additional evidence that was not before the ALJ. (Docket # 15.)

II. FACTUAL BACKGROUND²

A. Background

At the time of the ALJ's decision, Filus was forty-seven years old; had a high school education; and possessed work experience as a laborer, truck driver, painter, asphalt worker, tree trimmer, and in fixing up old houses. (Tr. 126, 678.) Filus alleges that he is disabled due to back pain associated with degenerative disk disease. (Opening Br. 2.)

At the hearings, Filus testified that he lives in a rental home with his girlfriend, who is employed, and her mother, who receives Social Security benefits. (Tr. 677, 691.) He independently performs his self care and meal preparation. (Tr. 692-93.) He borrows a car several times a month to drive to the grocery store. (Tr. 677-78.) His typical day involves rising about 11:00 a.m.; performing basic household tasks, including sweeping the floor and doing laundry; caring for pets; sometimes walking to the nearby gas station for cigarettes and groceries; and alternating between lying down and sitting. (Tr. 693-95.) Filus estimated that he could walk, stand, or sit for thirty minutes at a time. (Tr. 687, 689.) He stated that if he walks, stands, or sits for longer than thirty minutes at one time, he has to lie down for a full day to recover. (Tr. 689.) Filus testified that his back pain is primarily centered in his "mid-back" and does not radiate to his extremities. (Tr. 685.) He elaborated that the pain ranges from feeling "sharp" and burning" to "numb and throbbing." (Tr. 685-86.) The pain worsens with stress and "any kind of physical movement," including sitting. (Tr. 686.) Filus stated that he has received epidural injections and physical therapy, which temporarily worked but did not resolve the problem. (Tr. 682.) He also uses heat and ice to relieve his symptoms; however, he takes noprescription or over-the-counter medications. (Tr. 683, 687.)

B. Summary of the Relevant Medical Evidence Before the ALJ

On November 17, 1995, Dr. Steven Cremer diagnosed Filus with "lumbar disk degeneration by history exacerbated by a motor vehicle accident." (Tr. 347.) Filus received physical therapy and an epidural injection. (Tr. 200-12.) In December, Dr. Isa Canavati, a neurosurgeon, diagnosed Filus with a lumbar strain and mild disk protrusion at L4-5 and L5-S1. (Tr. 555-56.) He recommended that Filus continue lower back exercises, return to work with a twenty-pound lifting restriction, and avoid repeated bending and twisting for at least one month. (Tr. 555-56.)

In January 1996, a physical therapist documented that although Filus continued to report some pain, he had normal range of motion and good lower extremity flexibility. (Tr. 217-18.) A functional capacity evaluation indicated that he was able to perform most tasks of his job. (Tr. 217.) The physical therapist recommended that Filus return to work with the limitations of frequent lifting of forty pounds, maximum lifting of sixty pounds, and standing for two hours at a time for a total of six hours standing in a workday. (Tr. 217-18.)

In February 1996, Dr. Cremer felt that Filus had reached maximum medical improvement, and therefore he was assigned a five percent impairment rating and released to return to work without restriction. (Tr. 347-51.) In September 1996, Dr. Canavati saw Filus for a "flare-up" of his low back pain. (Tr. 552-53.) An MRI showed degenerative disk disease and mild protrusion at the L4-5 and L5-S1 levels. (Tr. 552.) He had intact strength in both lower extremities, and a straight leg raising test was positive bilaterally with an increase in lower back pain. (Tr. 552.) Dr. Canavati diagnosed Filus with an acute lumbar strain. (Tr. 552.)

That same month, Dr. William Washington of the Rehabilitation Hospital of Fort Wayne diagnosed Filus with sacroiliac joint dysfunction, pelvic asymmetry, and probable L5 radiculopathy secondary to a herniated disk at the L4-5 level. (Tr. 242-58, 368-70.) He put Filus off work for several weeks, and Filus attended physical therapy. (Tr. 266-304, 363, 370.) Another functional capacity evaluation indicated that Filus could perform light to medium work for an eight-hour workday. (Tr. 304-45.) During the evaluation, Filus displayed fair effort but some indicators of sub-maximal effort. (Tr. 304.) Dr. Washington assigned work restrictions consistent with the functional capacity test results and a home exercise program. (Tr. 348, 357-61.)

On January 2, 1997, Dr. Washington observed that Filus had some low back tenderness but a negative straight leg raising test; Dr. Washington diagnosed him with chronic L5 radiculopathy and probable right sacroiliac dysfunction. (Tr. 354.) Filus declined Dr. Washington's offer of an epidural injection. (Tr. 354.) Dr. Washington recommended that Filus seek "employment of a more sedentary nature." (Tr. 354.)

The next day, Filus was evaluated by Dr. Mark Reecer, a physiatrist, at the request of his employer. (Tr. 347-51.) Dr. Reecer diagnosed him with a lumbar strain with complaints of back pain, opined that he was at maximum medical improvement and that his conservative treatment program had been appropriate, and saw no indication for further diagnostic studies or treatment. (Tr. 350-51.) He agreed with Dr. Cremer in assigning a total permanent partial impairment rating of five percent of the whole person. (Tr. 351.)

In July 1997, Filus saw Dr. Dan Wilcox of Spine Technology and Rehabilitation, P.C. (Tr. 380.) Filus reported that he had intermittent symptoms but was still able to perform somework for his own business, including painting. (Tr. 380.) Dr. Wilcox observed that Filus had normal sensation, muscle strength, reflexes, and range of motion; he found no signs suggestive of L5 radiculopathy or sacroiliac joint dysfunction. (Tr. 380-82.) He recommended that Filus continue his home exercise program. (Tr. 380.)

In January 1998, Filus saw Dr. Steven Schroeder for a second opinion. (Tr. 387-91.) Dr. Schroeder observed that Filus had limited range of motion in his low back and hamstring tightness and discomfort, but normal reflexes. (Tr. 388.) He diagnosed Filus with chronic lumbar musculoligamentous strain. (Tr. 388.) The following month, Dr. Shroeder stated that it was highly unlikely that Filus would ever return to heavy work or continuous, repetitive activities that require use of the low back muscles. (Tr. 385-86.) He emphasized, however, that Filus was "not totally disabled" and should strongly consider vocational rehabilitation. (Tr. 386.) He thought that, ideally, Filus would find a job "where he could do some sitting, some standing, and primarily using manual dexterity other than brut [sic] strength." (Tr. 386.) He recommended that Filus take over-the-counter medications and continue his exercises. (Tr. 385.)

In February 1998, Dr. Michael Holton examined Filus. (Tr. 396-98.) He observed that Filus had tenderness in his low back but a normal neurological examination. (Tr. 396-98.) Filus exhibited a normal gait and station and had no perceived difficulty...