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Donna Free v. Michael J. Astrue

June 10, 2011


The opinion of the court was delivered by: Magistrate Judge Michael T. Mason


Michael T. Mason, United States Magistrate Judge:

Claimant Donna Free ("Free" or "Claimant") brings this motion for summary judgment [17] seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied Free's claim for disability insurance benefits under Sections 216 and 223 of the Social Security Act (the "SSA"), 42 U.S.C. §§ 416(I) and 423(d). The Commissioner filed a cross-motion for summary judgment [22], requesting that this Court uphold the decision of the Administrative Law Judge ("ALJ"). This Court has jurisdiction to hear this matter pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, Claimant's motion for summary judgment [17] is granted and the Commissioner's cross-motion for summary judgment [22] is denied.


A. Procedural History

Free filed an application for period of disability and disability insurance benefits on April 24, 2006. (R. 123-27). Claimant alleges that she has been disabled since April 1, 2001 due to spinal problems. (R. 37-38, 146). Free was insured through December 31, 2004. (R. 68). Her application was initially denied on June 28, 2006, and again on September 20, 2007, after a timely request for reconsideration. (R. 78, 83). On October 10, 2006, Free filed her request for a hearing. (R. 84). On November 3, 2008, she testified before Administrative Law Judge Regina M. Kossek (the "ALJ"). (R. 26-62). On February 3, 2009, the ALJ issued a decision denying Free's disability claim.

(R. 68-73). On March 19, 2009, Free requested review by the Appeals Council. (R. 10-11). On July 22, 2009, the Appeals Council denied Free's request for review, at which time the ALJ's decision became the final decision of the Commissioner. (R. 6-8); Zurawski v. Halter, 245 F.3d. 881, 883 (7th Cir. 2001). Free subsequently filed this action in the District Court.

B. Medical Evidence

On January 11, 2003, Free was admitted to the Emergency Room at St. Mary of Nazareth Hospital. (R. 373-91). The admitting diagnosis was back and head pain but the records also indicate that Free denied back pain, weakness, neck pain and headache. (R. 374, 376). Free stated that her boyfriend pushed her head against a window. (R. 376). Free had full range of motion in her extremities, normal gait, normal back flexion on 90, and "no CVAT" (costovertebral angle tenderness). (Id.). The records reveal that Free was intoxicated and attempted to leave the ER by running into the parking lot in her hospital gown. (R. 379, 381). A seclusion order was entered to prevent Free from harming herself and others. (R. 382). Free was released 45 minutes later. (Id.).

In October 2005, Free began seeing Dr. Remedios Javier, a general practitioner at the West Town Neighborhood Health Center, on a regular basis. (R. 214-221, 238-39, 246-261). Free complained of severe pain in her lower back and tail bone as well as numbness in all ten of her toes. (R. 214, 238). On October 28, 2005, Dr. Javier ordered Free to undergo an x-ray of her spine. (R. 214). The x-ray showed irregular L5/S1 facet consistent with degenerative joint disease, osteopenia, and no gross compressions. (R. 232).

On November 29, 2005, Dr. Javier referred Free for a CT scan of her lumbar spine at Cook County Hospital. (R. 216). The CT scan indicated that at L4/5, there was a moderately large posterior and right lateral disc bulge, relatively severe facet osteoarthritis and probable moderate narrowing of the canal. (R. 272). The scan also revealed that at L5/S1, there was moderate diffuse posterior and right lateral bulge of the disc and severe facet osteoarthritis. (Id.). Claimant continued to see Dr. Javier, who prescribed medication for her pain. (R. 217-220). She complained of worsening pain, back spasms, charley horses and an inability to walk more than a block and a half. (R. 220).

On March 31, 2006, Dr. Javier referred Free to the Neurosurgery Clinic at Cook County Hospital for an MRI. (R. 220-21). The MRI indicated "multilevel degenerative disc disease and facet arthropathy" as well as an "L4/L5 disc bulge associated with posterocentral disc protrusion effacing ventral thecal sac." (R. 271).

Claimant was seen at Cook County's Neurosurgery Clinic on May 1, 2006. She complained of pain in her lower back, numbness in her toes and charley horses in both of her feet. (R. 323). She was prescribed medication and told to follow up after her MRI. (Id.). Claimant returned on July 10, 2006. (R. 275). She complained of lower back pain for the last 2-3 years, worsening over the past several months. (Id.). She also complained of pain radiating into her lower extremities, numbness in both feet, and difficulty ambulating up and down stairs. (Id.). The records reveal that the MRI showed L4/L5 central disc herniation with mild spinal stenosis. (Id.). Dr. Solomon recommended no surgical intervention at that time. (Id.). Free was referred to a pain clinic for an epidural steroid injection and told to continue taking Tylenol as needed. (Id.).

Claimant saw Dr. Javier again on July 19, 2006. She explained that she had been referred for a steroid injection but wanted to discuss possible surgery for her back problems. (R. 258).

On July 26, 2006, Dr. Javier opined that based on a CT scan and a MRI performed at Stroger Hospital, Free has degenerative discs and osteoarthritis in the lumbar spine L-1 to L-5. (R. 326). He further opined that "due to these conditions, Donna Free has had chronic pain/numbness in both her lower back and legs over the last three years." (Id.). Dr. Javier stated that Claimant's pain "limits her ability to walk more than one block or climb stairs without experiencing extreme discomfort" and that "she will require continued treatments in order to manage the pain and may require other treatment options in the future." (Id.).

Free saw Dr. Javier again on September 5, 2006. (R. 256-60). She continued to complain of pain and stated she would not go back to Cook County Hospital for steroid shots because she did not think it would help. (Id.). Free told Dr. Javier she wanted surgical intervention for her slipped disks before she is paralyzed. (R. 259). She also requested a note to bring to the Social Security office to get a medical card. (Id.).

On November 14, 2006, Free saw Dr. O'Keefe at Norwegian American Hospital.

(R. 329). He prescribed physical therapy for her back pain. (Id.). Claimant underwent physical therapy twice a week for several weeks at St. Mary & Elizabeth Medical Center but her condition did not improve. (R. 331-333).

On December 21, 2006, Free saw Dr. Michael R. Treister of St. Mary & Elizabeth Medical Center/Norwegian American Hospital, Inc. (R. 333-34). Claimant complained of left-sided lower back pain which radiates into her lower extremities as well as numbness in her toes and cramping in her feet. (R. 333). Free reported that she was injured three years ago when she was battered by her boyfriend and another woman, sustaining back injuries. (Id.). Free claimed that she had been told she needed surgery at Stroger Hospital but that she would have to wait 2-3 years for operating room time. (Id.). Dr. Treister noted that Free had "[m]ultilevel disc disease and facet arthropathy" and that she had "[c]lassic subjective complaints of severe lumbar spinal canal stenosis." (Id.). Free reported that she could only walk one block and could not continue on because of weakness in the lower extremities. (Id.). Dr. Treister stated that Free "has a surgical problem," is "unable to do much of anything and needs surgical intervention." (R. 334). Because Dr. Treister no longer performs surgery, he referred Free to Cook County Hospital or the Spine Clinic at the University of Illinois. (Id.).

On February 21, 2007, Dr. George Cybulski performed surgery on Free's back at Cook County Hospital. (R. 341, 372). The preoperative diagnosis on Dr. Cybulski's Operative Report read "L4-L5 herniated disc with bilateral radiculopathy." (R. 341). Dr. Cybulski performed an "L4 laminectomy, bilateral L4-L5 ...

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