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JACKSON v. BARNHART

May 1, 2003

CHARLOTTE JACKSON, PLAINTIFF, VS. JO ANNE B. BARNHART,[FN1] COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.


The opinion of the court was delivered by: Nan R. Nolan, United States Magistrate Judge.

Plaintiff Charlotte Jackson seeks judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her claim for Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), 1383(c)(3). This matter is before the Court on the parties' cross-motions for summary judgment. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636 (c). For the reasons set forth below, the case is remanded for further proceedings consistent with this opinion.

PROCEDURAL HISTORY

On July 14, 1998, Jackson applied for DIB and SSI benefits claiming that she became disabled on November 10, 1997 due to back pain.*fn2 (R. at 50-52, 253-55.) The Commissioner denied Jackson's application initially and upon reconsideration. (R. at 36, 42, 262, 257.) Jackson appealed the Commissioner's decision and requested an administrative hearing, which was held on June 11, 1999. (R. at 45, 288-308.) On October 28, 1999, the Administrative Law Judge ("ALJ") denied Jackson's claims for DIB and SSI, finding that she was not disabled because she could perform her past relevant work. (R. at 19-25.) On August 14, 2001, the Appeals Council denied Jackson's request for review (R. at 7-8), and the ALJ's decision therefore became the final decision of the Commissioner. See 20 C.F.R. § 416.1481.

FACTUAL BACKGROUND

Jackson was born on December 5, 1939. (R. at 294.) She has a tenth grade*fn3 education and obtained her GED in 1982. (R. at 64.) In 1990, she was diagnosed with diabetes and hypertension and immediately began taking insulin. (R. at 237.) In addition, Jackson injured her lower back in a car accident in 1993, and again while lifting furniture in August 1996. (R. at 150.) Jackson's present claims relate to a third back injury she sustained in November 1997 while lifting her granddaughter. (R. at 60-61, 237.)

A. Medical Evidence

Dr. Eugene Loftin is board certified in internal medicine and has been Jackson's treating physician since 1993 (R. at 61, 232.) On November 13, 1997, Jackson went to Dr. Loftin and complained that she had been suffering from back pain since November 10, 1997. (R. at 138.) Jackson returned to Dr. Loftin on December 1 and 11, 1997, because her back was "very painful," and Dr. Loftin diagnosed her with low lumbar strain with tenderness. (R. at 136.) He prescribed her Voltran and Flexeril for pain and sent her to physical therapy. (R. at 135, 136, 172.)

On January 19, 1998, Dr. Loftin saw Jackson again for her diabetes and hypertension management, and for a "diffuse lumbar sprain." (R. at 134.) Jackson reported that her pain was "no better" at that time. Dr. Loftin gave her a prescription for Flexeril and Naprosin and ordered an MRI of her lumbosacral spine, which she had on January 28, 1998. (R. at 129, 134.) The radiology report showed evidence of degenerative changes in the lumbar spine with "disk bulge at L4-5 central and to the left." (Id.)

Pursuant to Dr. Loftin's orders, Jackson attended nine physical therapy sessions for pain relief and strengthening between December 22, 1997 and February 16, 1998. (R. at 172.) The initial physical therapy evaluation on December 22 revealed that Jackson had back pain at a level of 4 out of ten points (4/10) which was "present daily and worse with bending, sitting, sit to stand, and lying down." (R. at 177.) Jackson's straight leg raise was "40 degrees to the right with pain and 70 degrees to the left" and she had "poor pelvic stability bilaterally, worse on the right." (Id.) The physical therapist observed that Jackson was "slow and guarded" when standing up from a sitting position and that she walked "slowly with wide base." In addition, Jackson was unable to "single leg stance [on] either leg [for] more than 2 sec[onds]." (Id.) Jackson's back area was tender and the physical therapist concluded that she had "lumbar bilat[eral] pain with no radiating symptoms" resulting from her attempt to lift her granddaughter in November 1997. (R. at 176-78.) Several weeks later when the physical therapist discharged Jackson, Jackson "demonstrated good lifting techniques" but had not achieved the physical therapy goal to be pain free. (R. at 172.) At that time, Jackson still reported that she had pain which woke her up at least twice a night even though she took pain medication. (Id.)

On March 6, 1998, Jackson saw Dr. Loftin again for her "continuous back problem." (R. at 218.) Jackson was still taking medication for her diabetes and hypertension, as well as Voltran and Flexeril for pain. (Id.) According to Dr. Loftin's notes, Jackson called him on May 14, 1998, to ask for a note to return to work. (R. at 213.) Dr. Loftin noted that he needed to reexamine her back and that she was not yet released for work. (Id.) On May 21, 1998, Dr. Loftin again prescribed Jackson Flexeril for pain and referred her for another round of physical therapy. (Id.)

Jackson attended twenty-three physical therapy sessions between June 2 and August 19, 1998. (R. at 201.) On or about June 22, 1998, the physical therapist, Jodi Quinn, sent Dr. Loftin a letter stating that since Jackson had begun her therapy, she had increased her spinal range of motion by 50 percent, improved her posture from "poor to fairī¸Š," and decreased her constant pain from 8/10 to a range of 3-6/10. (R. at 212.) Jackson had also begun to exercise on a Swiss ball, without residual pain. (Id.) Quinn recommended an additional three to four weeks of therapy.

At the time of her discharge on August 19, 1998, Jackson's pain level had decreased from "8/10 to 3-4/10" with pain worse on her right side. (R. at 201.) Jackson's "main pain generator" was sitting, and she was only able to manage the pain with medication. (Id.) The physical therapist reported that Jackson's range of motion and trunk stability had improved, but that she still could not sit for more than 15 minutes without pain. (Id.) The physical therapist also noted that despite Jackson's progress, she had not achieved the treatment goals of "good unsupported sitting posture" and full extension range of motion. (Id.)

On August 28, 1998, Dr. Kyung W. Koo, board certified in internal medicine and specializing in pulmonary diseases and internal medicine, performed a consultative examination of Jackson at the request of the Illinois Bureau of Disability Determination Services. (R. at 189, 231.) Dr. Koo reported that in November 1997, Jackson complained of lower back pain radiating down the lateral aspect of her left thigh, and numbness in her left foot. (R. at 189.) He noted that Jackson's January 1998 MRI scan revealed "bulging of the disc centrally," and that she was treated with physical therapy. (Id.)

Dr. Koo did not find any deformity of Jackson's spine or tenderness in her back, and he indicated that she could bend forward up to 40 degrees and backwards up to 20 degrees. (R. at 190.) However, Dr. Koo found that Jackson had developed "lower back pain radiating down the left thigh," and that her pain was "mainly due to strain of the lower back." (Id.) He observed signs of peripheral neuritis*fn4 in both her lower extremities, "probably due to diabetes mellitus," and he noted that her hypertension "[did] not appear to be well controlled." (Id.)

The following month on September 11, 1998, Dr. Jose Luis Gonzalez completed a residual functional capacity assessment of Jackson. (R. at 191.) Dr. Gonzalez did not personally examine Jackson and was not her treating physician. In describing her symptoms, Dr. Gonzalez indicated that Jackson "complain[ed] of back pain that radiates to her mid-thigh," but that her back "revealed no deformity of the spine and no tenderness on the back." (R. at 197.) According to Dr. Gonzalez, Jackson could bend forward up to 40 degrees and backwards up to 20 degrees, with lower back pain. (R. at 198.) Dr. Gonzalez also stated that Jackson had full range of motion in all other areas and could walk without an assistive device, and that the "rest of [the] exam [was] unremarkable." (Id.)

Based on this information, Dr. Gonzalez concluded that Jackson could lift 50 pounds occasionally and 25 pounds frequently, and that she could sit and stand for approximately six hours in an eight hour workday. (R. at 192.) Dr. Gonzalez stated that Jackson occasionally had postural limitations with respect to climbing, balancing, stooping, kneeling, crouching, and crawling (R. at 193), but she had no manipulative, visual, communicative, or environmental limitations. (R. at 194-95.) In making his assessment, Dr. Gonzalez did not examine any treating or examining source statements regarding Jackson's physical capacities, and he did not complete the portion of the form that requested him to explain how the medical records he reviewed supported his conclusions about Jackson's residual functional capacity. (R. at 193, 197.)

Jackson returned to Dr. Loftin on October 1, 1998, complaining of back pain. (R. at 199.) Dr. Loftin noted that Jackson had a "diffuse lumbar" which was "tender to palpation." (Id.) Jackson saw Dr. Loftin for back pain again on January 26, 1999, and he referred her to physical therapy for a third time. (R. at 242.) Jackson attended five physical therapy sessions between February 2 and March 12, 1999. (R. at 240.) The physical therapist noted that upon discharge, Jackson's pain was at an intensity of 4/10, down from 5/10. (Id.) Jackson's range of motion had generally improved and according to the discharge summary, her forward bending had increased from 50 percent to 75 percent, her back bending had increased from 20 percent to 90 percent, and her side bending had increased from 75 percent to 100 percent. (Id.) The physical therapist noted that Jackson's strength in her lower extremities had improved from 3-4/5 to 4/5, and that her ability to sit had increased from 15 to 20 minutes. (Id.)

On March 16, 1999, Dr. Sapna Rathi conducted a neurological evaluation of Jackson at the request of Dr. Loftin. (R. at 237.) Dr. Rathi noted Jackson's history of insulin-dependent diabetes and hypertension, and reported that she complained of chronic, intermittent, muscle spasms in both sides of her lower back and numbness in the last three toes of her left foot. (Id.) Jackson told Dr. Rathi that she was taking Naprosin and Flexeril for the pain but that the Flexeril made her very drowsy. (Id.) Dr. Rathi noted that Jackson's January 1998 MRI showed "degenerative changes in the lumbar spine with disc bulge at L4, L5 central and to the left," but did not show any evidence of "disc extrusion or high grade central canal stenosis." (R. at 238.)

Dr. Rathi's physical examination revealed that Jackson's strength level was "4 to 5- out of 5 in the upper extremities both proximally and distally except for left grip which was about a 4 out of 5," and 5 out of 5 "both proximally and distally" in her lower extremities. (Id.) Dr. Rathi indicated that Jackson's cranial nerves were "intact with sharp discs and full visual fields." (Id.) She showed "decreased vibration" in both feet and "decreased pin prick in a stocking glove distribution in the hands and feet." However, her "[l]ight touch and proprioception*fn5 were intact." (Id.) According to Dr. Rathi, Jackson's gait was normal and she was "able to ambulate on her heels, toes, and tandem gait." (Id.) In addition, Jackson's Romberg's sign*fn6 and straight leg raise were both negative. (R. at 238.)

Dr. Rathi's impression was that Jackson had chronic lower back pain, most likely secondary to muscle spasm. (R. at 238.) He noted that Jackson's MRI of the lumbosacral spine was unremarkable for radiculopathy*fn7 or herniated disc, but he diagnosed her with diabetic peripheral neuropathy.*fn8 (Id.) Dr. Rathi recommended that Jackson undergo an EMG test of the lower extremities to evaluate her chronic lower back pain and to rule out radiculopathy. (R. at 239.) He also recommended a nerve conduction study "for further work up of [her] diabetic peripheral neuropathy," and exercises to help manage her lower back pain and build up the paraspinal muscles. (Id.) Dr. Rathi advised Jackson to continue taking Flexeril and Naprosin as needed to control her back pain. (Id.)

On May 4, 1999, Jackson underwent an EMG that revealed mild bilateral lumbosacral radiculopathy, poorly localized, but no peripheral neuropathy in the lower extremities. (R. at 252.) Around that time, Dr. Loftin noted that Jackson had some complaints about her vision — something she first mentioned back in August 1996 when she reported feeling "a hair" in the outer corners of both eyes. (R. at 150, 269.) Dr. Loftin's May 22, 1999 notes indicate that his nurse was trying to obtain an eye doctor referral from Jackson's insurance company.*fn9 (R. at 269.) Two days later on May 24, 1999, Jackson complained to Dr. Loftin that she was experiencing blurred vision and that she was concerned because of her diabetic history. (R. at 245.)

In June 1999, Jackson saw Dr. Antonio C. Yuk. (R. at 267.) Dr. Yuk reported that Jackson's hyperextension was 30 degrees, her lateral rotation was over 45 degrees, and her lateral flexion was 30 degrees. (Id.) Dr. Yuk noted that Jackson's straight leg raise testing was negative for both legs, and that neurologically, he did not find cranial nerve change. (R. at 267.) He also indicated that Jackson had good motor and sensory functions in her upper extremities, and that there was no "focal atrophy or weakness" in her lower extremities. (Id.) Dr. Yuk did not find any proprioception loss, and he determined that Jackson could perform heel toe and tandem gait without any difficulty. However, a sensory ...


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