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Delisa Smith v. Michael J. Astrue

February 22, 2011


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:


Plaintiff Delisa Smith returns to this Court to appeal the decision of the Social Security Administration (SSA) to deny for the second time her request for disability insurance benefits (DIB) and Supplemental Security Income (SSI). The Court grants Smith's motion for summary judgment, denies the Commissioner's motion, and remands the case to the SSA.


1. Prior proceedings

On September 8, 2003, while working as a mail services delivery driver, Smith was involved in a traffic collision that caused injuries that she says prevent her from working. Before that, Smith, who completed tenth grade, had worked as a dietary aide, airport transporter, and prep cook. Smith first applied for DIB and SSI in 2004. After a hearing held in 2005, an administrative law judge (ALJ) denied her claim for benefits. The ALJ found Smith had anemia, was obese, and had severe impairments in her left knee and back. But he found that although these impairments placed significant limitations on Smith's ability to work, they did not meet or equal an impairment listed in the Social Security disability regulations. The ALJ also found that although Smith could not perform her past work, there was other available work that she was capable of performing.

After the SSA's Appeals Council denied Smith's request for review, she filed suit in this Court. On June 25, 2007, the Court vacated the ALJ's ruling and remanded the case to the SSA. Smith v. Astrue, No. 06 C 2844, slip op. (N.D. Ill. June 25, 2007) ("Smith I"). First, the Court concluded that it was appropriate to remand the case so that the ALJ could consider new evidence obtained several days after Smith's hearing, namely an EMG report that appeared to provide an objective basis for Smith's claim of an impairment. Id. at 7-8. Second, the Court concluded that the ALJ had improperly found Smith incredible based on the purported lack of objective or independent evidence to corroborate her testimony, without dealing with other evidence that appeared to be corroborative (in particular, an evaluation by a Dr. Ogan just prior to her hearing). Id. at 9-10. Third, the Court took issue with the sufficiency of the support the ALJ marshaled for his determination that Smith's statements over the time period at issue were inconsistent. Id. at 10. Fourth, the Court concluded that in questioning the vocational expert (VE), the ALJ had inappropriately precluded the VE from considering one of Smith's impairments, specifically her obesity. Finally, the Court found inadequate the ALJ's explanation for why he believed Smith matched the criteria of a hypothetical non-disabled person he described in questioning the VE. Id. at 11.

2. The evidence

Before the September 2003 accident, Smith's job was physically demanding and at times required her to lift more than seventy pounds. The collision took place when another vehicle hit the van she was driving, causing the van to spin around, injuring her back and causing her left knee to hit the interior of her vehicle. Smith was treated at a hospital the day of the crash and was released with a prescription saying she should be on "light duty for one week." R. 221. A few days later, she returned to the hospital by ambulance due to pain. Her physician permitted her to go back to work on September 19 as long as she did not lift any weight, stand or walk for more than ten minutes an hour, sit less than ninety percent of the time, bend, or drive. R. 138. In December 2003, Smith's physician, Dr. Giri Gireesan, gave her a disability certificate stating that she was "totally incapacitated" until she recovered. R. 139.

In the years following the crash, Smith underwent extensive medical treatment. An October 2003 MRI of her left knee indicated a possible soft tissue injury, prepatellar bursitis (inflammation over the front of the knee), a possible intra-articular loose body (i.e., within the knee joint), and subchondral degenerative change involving the patella. The physician reviewing the MRI thought Smith had patellofemoral arthritis. R. 157.

In June 2004, Smith's treating physician Dr. Deidra Greathouse noted that Smith was requesting a letter for disability and that she was not sure whether Smith was "malingering." Dr. Greathouse also reported, however, that she would fill out the necessary forms if Smith provided them to her. R. 230. In September 2004, Dr. Greathouse reported that Smith told her that physical therapy was going "wonderful" and that the pain had improved and only came back after a lot of movement. R. 176.

In November 2004, Smith saw Dr. Peter Biale, who performed a consultative examination in connection with Smith's application for DIB and SSI benefits. Dr. Biale found a full range of motion of the cervical spine but a limited range of motion of the lumbosacral spine. He found tenderness of the paraspinal muscles and positive straight-leg raise tests for both legs. (The straight leg raise test is done to determine whether a patient with lower back pain has a herniated disk.) Dr. Biale also found limited flexion of Smith's left knee. He noted that Smith had "a severe limp" and an inability to heel walk and toe walk, though she did not use a cane to walk. She was also unable to squat and had difficulty getting on and off of the examination table, which Dr. Biale attributed to problems with her knee and back. He found no problems with Smith's hand grip on either side. R. 184-85. He also noted that Smith had anemia. R. 185. An x-ray of Smith's spine taken the day of the examination showed no fracture or dislocation of the lumbosacral spine. R. 186.

On April 29, 2005, Dr. Alvin Goldberg, one of Smith's treating physicians, found Smith to be temporarily totally disabled from then until February 28, 2006. R. 402. Dr. Goldberg's notes reflect that Smith had "Lower Back pain with Lt Root Pain," and a differential diagnosis of "HNP v. SPRAIN." Id. The reference to "HNP" is likely a reference to the possibility of a "herniated nucleus pulposus," i.e. a herniated disk.

A June 2005 MRI of Smith's left knee found mild patellofemoral osteoarthritis and/or chondromalacia patella and a small joint effusion (a buildup of fluid). R. 200. In June 2005, orthopedic specialist Dr. Daniel Newman (Dr. D. Newman) began to treat Smith. R. 213. In what he described as a "limited examination," Dr. D. Newman noted that Smith appeared to be in severe pain because of her back and left knee but that there were "no significant objective findings" to explain the pain. R. 214.

A June 2005 CAT scan of Smith's lumbosacral spine did not show any evidence of disc herniation. R. 202. A July 2005 MRI of Smith's lumbar spine, however, revealed a "mild" two to three millimeter "posterior disc bulge elevating the posterior longitudinal ligament and indenting the ventral surface of the thecal sac without significant spinal stenosis." The test also revealed a "mild generalized left neuroforaminal narrowing . . . ." R. 199.

In August 2005, Dr. D. Newman examined Smith again. He reported that Smith advised him that she had almost continuous pain in her lower back; walking, climbing, and standing increased this; and she got relief only by lying down. Smith also stated that her knee pain was greatest when descending stairs. Dr. D. Newman found degenerative changes in her left knee. He also reported that Smith was obese. His only specific finding, however, was that Smith had chondromalacia patella, a common cause of chronic knee pain. He reported that he wanted to conduct an EMG test of Smith's left leg because of problems with her ankle reflex. But he also wrote that he doubted the bulging disc was causing her back pain. R. 211-12. An August 22, 2005 MRI of Smith's lumbar spine found a minimal amount of scoliosis and "no evidence for . . . well-defined disc herniations or protrusions." R. 219.

After another examination in October 2005, Dr. D. Newman wrote to Dr. Goldberg that the EMG test on Smith's leg had been attempted but not completed, though it did show "some abnormalities on the left side." He wrote that Smith was a candidate for an epidural injection in her back "in spite of the paucity of findings on the MRI." He also stated that "if [Smith's] knee pain persists after the back and radiating pain are gone, an arthroscopy [on the left knee] is a possibility." R. 209.

In September 2005, neurosurgeon Dr. Hernando Torres wrote after an examination of Smith that his impression was that she had "lumbar syndrome" and "thoracic syndrome." He ordered an MRI of the thoracic spine and also wanted Smith to have physical therapy. He also gave her a back brace and told her she needed to lose about 100 pounds. At the time of her examination, Smith's weight was 252 pounds, and she was five feet, seven inches tall. R. 215-17. A thoracic spine MRI, taken on September 26, 2005, showed disc dehydration, but no disc herniation or canal impingement. R. 198. (The Court notes, however, that Smith's problems had been focused in her lower back, not the thoracic region.)

Smith saw pain management specialist Dr. Brian Ogan in November 2005. Dr. Ogan examined Smith's medical records and conducted a physical examination. He provided detailed notes of his findings. Dr. Ogan also noted the July 2005 MRI examination that had shown a bulging disk at L5-S1, as well as the October 2003 MRI examination that had shown patellofemoral arthritis and a possible intra-articular loose body. R. 206-07. He concluded that Smith's "stated pain complaint, as well as her mechanism of injury is consistent with her physical exam and MRI findings." R. 207. He recommended lumbar epidural steroid injections because more conservative treatment had not been successful. Id. Dr. Ogan administered an epidural steroid injection on November 17, 2005.

On December 9, 2005, the ALJ held the first hearing. On December 15, Smith was able to complete the EMG test that later became the primary basis for the Court's remand order. The December 2005 EMG test resulted in findings "compatible with chronic radiculopathy bilaterally greatest in left S1 and right L5 distribution." R. 441. The results of this EMG test were not before the ALJ when he initially denied Smith's request for benefits.

On the day of her EMG test, Smith had another appointment with Dr. D. Newman. After the visit, Dr. D. Newman wrote to Dr. Goldberg that the MRI suggested "a possible lesion at L5-S1 more on the left side." He also noted that the EMG test was positive and that Smith had a decreased left ankle reflex. Dr. D. Newman wrote that Smith was a surgery candidate and should see Dr. Charles Slack, a surgeon, because she had not responded well to more conservative treatment. R. 341. Smith scheduled an appointment with Dr. D. Newman and Dr. Slack together. On February 8, 2006, Dr.

D. Newman wrote to Dr. Goldberg that Dr. Slack had been unable to attend the appointment but that he (Dr. D. Newman) "think[s] she has a herniated disk that requires surgery." R. 340.

Dr. Slack saw Smith on February 22, 2006. After referencing a number of the tests Smith had undergone, but not the December 2005 EMG, Dr. Slack reported that Smith "appears to have a myofascial pain response . . . with positive EMG and slight disk bulging changes at L5-S1." He suggested that Smith be evaluated by a pain specialist, try Lidoderm patches on her back, and continue seeing Dr. D. Newman to treat her knee. Dr. Slack stated that Smith "is not a surgical candidate." He suggested that after completing treatment on her knee, Smith should undergo a functional capacity evaluation to determine if she could begin working again. Dr. Slack concluded, however, that until her pain level could be controlled, Smith was "temporarily totally disabled from work." R. 432-33.

Dr. D. Newman also examined Smith on February 22, 2006. He reported to Dr. Goldberg that he thought Smith's knee had "degenerative arthritis which may have been aggravated by the accident." He recommended that Smith take anti-inflammatory medication for pain relief. He stated, however, that he did not think that arthroscopic surgery was required for her knee "based on the MRI or physical findings." R. 434.

Smith underwent another radiological examination of her left leg on August 2, 2006. The examination showed mild degenerative joint disease of her left knee. R. 429. In November 2007, Smith had an MRI taken of her left knee. The MRI showed small osteophytic spurs consistent with early degenerative changes. It also detected what was most likely a traumatic prepatellar bursitis. R. 425. (The Court notes that this MRI examination was consistent with the MRI examination that Smith had in October 2003, which indicated prepatellar bursitis and patellofemoral arthritis, among other things. R. 157.)

Objective signs of carpal tunnel syndrome began emerging in 2006. A December 2006 EMG of Smith's right arm found moderate carpal tunnel syndrome in the right arm. R. 428. On April 17, 2008, hand surgeon Dr. Orhan Kaymakcalan wrote Smith's lawyer that he had begun seeing Smith in January 2007 and had found four neuropathies on her right side, including carpal tunnel syndrome. He wrote that Smith had declined to undergo surgery. R. 457.

In October 2007, at the SSA's request, Dr. James Elmes examined Smith following this Court's remand order. He reviewed Smith's medical records and spent ninety minutes with her. R. 343. He also conducted an examination of Smith, including physical testing.

Dr. Elmes noted that Smith could get on and off the examination table with "slight help," though she did become short of breath. R. 345. He also noted that she needed help tying her shoes because of stiffness and pain in her fingers and hands. She could not turn a key in a door lock with her right hand. He also found less grip strength on her right side. Dr. Elmes' examination also showed decreased strength in Smith's right arm and left leg. R. 346.

Dr. Elmes stated with regard to Smith's back pain that her responses on five of the six tests he performed were "inappropriate," which Dr. Elmes stated was "probable for symptom magnification," in other words, exaggeration of her symptoms. R. 347-48.

It does not appear from Dr. Elmes' report that he saw the December 2006 EMG test results on Smith's right arm. This, however, does not appear to be significant, as Dr. Elmes concluded even without this that Smith had right carpal tunnel syndrome.

After examining Smith and reviewing her medical records, he found that she had the following impairments, among others: L5-S1 bilateral foraminal stenosis associated with her low back pain; an L5 disc bulge of two to three millimeters; mild osteoarthritis and chondromalacia of the left knee; minimal hypertrophic changes of the lumbar spine; right carpal tunnel syndrome, dextroscoliosis of the thoracolumbar spine; and obesity.

R. 347-48.

Dr. Elmes found that Smith had significant restrictions on her ability to work. He found that she could lift and carry five pounds up to one-third of the time but should never lift more than that. R. 349. He also found that Smith could sit for thirty minutes without interruption, for a total of up to five hours in an eight-hour work day. Dr. Elmes found that Smith could stand up to thirty minutes at a time, for a total of a half-hour during an eight-hour work day. Among other restrictions, Dr. Elmes found that Smith could walk for only fifteen to twenty minutes at a time and for up to a half-hour in a work day. R. 350. He stated that Smith could not perform activities like shopping, could not use standard public transportation, and could not travel without assistance. Dr. Elmes also reported that he believed Smith's restrictions had lasted or would last for twelve consecutive months. R. 354.

In January 2008, Smith underwent another MRI on her thoracic spine, which was "unremarkable." R. 424. This, however, does not appear to have had any bearing on Smith's claim of disability. The earlier findings regarding Smith's back problems were in the lumbar and sacral regions of the spine, not the thoracic region.

Smith's treating physician, Dr. Patricia Benitez, signed an affidavit on March 4, 2008 in which she stated that in her opinion, Smith was not malingering and that her symptoms matched her complaints. Dr. Benitez stated that she had treated Smith since the accident in 2003. She said Smith had a herniated disc at the L5-S1 level; her symptoms indicated nerve root compression; and the December 2005 EMG showing bilateral chronic radiculopathy provided objective evidence of those conditions. Dr. Benitez also stated that Smith had carpal tunnel syndrome in her right arm and likely had degenerative arthritis and post-traumatic bursitis in her left knee. Dr. Benitez also said that Smith was obese and suffered from anemia. R. 423B-423C.

3. The second hearing

On April 18, 2008, the ALJ to whom the case had originally been assigned conducted a second hearing. At the hearing, Smith testified that her knee hurt her "[p]ractically all day" and that the pain dated to the 2003 crash. R. 540. She said she was taking Ibuprofen (800 milligrams) and Tylenol Arthritis (650 milligrams) for pain, as well as iron pills for her anemia. R. 540, 549. When the ALJ asked Smith to rate her lower back pain on a scale from zero to ten, she described her pain as a six. See R. 289. Smith was wearing a brace on her right arm at the hearing; she said she had pain from her elbow to her fingers. She told the ALJ that the pain in her hand had started after the accident but had become worse over time, and by the time of the hearing, she could only dial a ...

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