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Lisa M. Wolak v. Michael J. Astrue

November 16, 2011

LISA M. WOLAK , PLAINTIFF,
v.
MICHAEL J. ASTRUE , COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Martin Ashman

MEMORANDUM OPINION AND ORDER

Plaintiff Lisa M. Wolak ("Plaintiff" or "Ms. Wolak") seeks judicial review of a final decision of Defendant, Michael J. Astrue, the Commissioner of Social Security ("Commissioner"), denying Plaintiff's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income benefits ("SSI") under Title II of the Social Security Act. Before the Court is Plaintiff's motion for summary judgment. The parties have consented to have this Court conduct any and all proceedings in this case, including entry of final judgment. 28 U.S.C. § 636(e); N.D. Ill. R. 73.1(c). For the reasons stated below, Plaintiff's motion is granted in part and denied in part.

I. Legal Standard

In order to qualify for DIB, a claimant must demonstrate that he is disabled. An individual is considered to be disabled when he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An individual is under a disability if he is unable to do his previous work and cannot, considering his age, education, and work experience, partake in any gainful employment that exists in the national economy. Id. Gainful employment is defined as "the kind of work usually done for pay or profit, whether or not a profit is realized."

20 C.F.R. § 404.1572(b).

A claim of disability is determined under a five-step analysis. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. First, the SSA considers whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(4)(I). Second, the SSA examines if the physical or mental impairment is severe, medically determinable, and meets the durational requirement.

20 C.F.R. § 404.1520(4)(ii). Third, the SSA compares the impairment to a list of impairments that are considered conclusively disabling. 20 C.F.R. § 404.1520(4)(iii). If the impairment meets or equals one of the listed impairments, then the applicant is considered disabled; if the impairment does not meet or equal a listed impairment, then the evaluation proceeds to step four. Id. Fourth, the SSA assesses the applicant's RFC and ability to engage in past relevant work. 20 C.F.R. § 404.1520(4)(iv). In the final step, the SSA assesses whether the claimant can engage in other work in light of his RFC, age, education and work experience. 20 C.F.R. § 404.1520(4)(v).

Judicial review of the ALJ's decision is governed by 42 U.S.C. § 405(g), which provides that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). The court reviews the entire record, but does not displace the ALJ's judgment by reweighing the facts or by making independent credibility determinations. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). Instead, the court looks at whether the ALJ articulated an "accurate and logical bridge" from the evidence to her conclusions. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008). Thus, even if reasonable minds could differ whether the Plaintiff is disabled, courts will affirm a decision if the ALJ's decision has adequate support. Elder, 529 F.3d at 413 (citing Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007)).

II. Background Facts

Plaintiff filed for SSI on March 18, 2008 and for DBI on April 14, 2008, claiming that she had become disabled as of July 3, 2007. Her claims were denied initially and again upon reconsideration, after which a hearing was held on September 1, 2009 before administrative law judge ("ALJ") Janice Brunning. The ALJ issued a decision on October 2, 2009, finding that Plaintiff was not disabled. The Appeals Council denied review, and the ALJ's ruling became the Commissioner's final decision. Plaintiff then filed the instant action on September 28, 2010.

A. Medical History

At the time of the hearing, Ms. Wolak was a forty-four year old woman with a history of back pain stemming from an earlier automobile accident. On July 3, 2007, a man who is described in the record as being drunk at a party, lifted Ms. Wolak, dropped her onto a concrete floor, and then fell on top of her. The next day she presented at the Adventist Hinsdale Hospital in Hinsdale, Illinois complaining of pain on her left side, including the knee, chest, and shoulder.

An x-ray of the knee showed minor tissue swelling, and another of the lower spine indicated some narrowing of disc space. (R. 233, 244). Her family physician, Dr. Umang Patel, stated on July 10 that the x-rays were normal and diagnosed her as having an acute cervical sprain, as well as sprains in her thoracic and lumbar spine. (R. 322). He prescribed an anti-inflammatory, the pain medication, Norco, and the anti-anxiety drug, Xanax. (R. 322-23). One week later, Dr. Patel ordered a number of MRIs for Ms. Wolak. One of these studies showed that she was suffering from degenerative disc disease at L4-L5, with a narrow disc protrusion causing mild impingement on the thecal sac. Mild bulges also existed at L2-L3 and L3-L4. (R. 253).

Ms. Wolak eventually followed up by beginning treatment with orthopedic surgeon Dr. Ryan Hennessey on October 26, 2007. Dr. Hennessey agreed that the disc bulges at L2-L3 and L3-L4 were "very minimal" and that her thoracic spine was normal. (R. 258). But he recommended an MRI of her cervical spine, which showed moderate disc bulging at C5-C6 that impinged on parts of the dural sac and the cervical spinal cord. Mild herniation was noted at C6-C7, with moderately severe spinal stenosis at both joint levels. (R. 236). Dr. Hennessey reviewed the MRI results with her on November 16, 2007 and noted that she had true herniation at the C5-C6 level that might require a cervical epidural. He also believed that a lumbar epidural might be necessary as well to treat her L4-L5 disc problem. For the time, however, he noted that she had muscle strength of a five out of five and recommended more conservative treatment such as physical therapy. Failing that, he told Ms. Wolak that an anterior cervical discectomy and fusion might be necessary. (R. 264).

Ms. Wolak claims that she followed up on December 6 with pain specialist, Dr. Nicholas Kondelis. The Court states this only in the conditional because the treatment note for this meeting refers to a Ms. Sharon Hoff instead of Plaintiff.*fn1 She certainly met with Dr. Kondelis five days later, when Dr. Kondelis described Plaintiff as unable to sit, stand, or lie down for any length of time despite the fact that she had been taking Xanax and Flexeril.

(R. 274). The doctor noted that she was experiencing dysesthesias with numbness and tingling in her hands and feet that were present while standing, sitting, and walking. Ms. Wolak was prescribed Neurontin and Tramadol and given trigger point and epidural injections. When she returned on January 2, 2008, Ms. Wolak reported a 60 percent improvement in her symptoms, though she was still showing tenderness and muscle spasms "in a diffuse pattern." (R. 278). The injections given on the preceding visit were repeated.

On January 15, however, Ms. Wolak's condition had worsened. She showed no significant improvement from the January 2 injections and reported her pain level as nine out of ten. Dr. Kondelis replaced her weaker pain medication of Tramadol with additional doses of Norco, increased the Neurontin, and prescribed Elavil to help with her with neuropathic pain and insomnia. (R. 282). To help her neck pain, Dr. Kondelis also performed a cervical steroid injection. Ms. Wolak reported three weeks later that the injections had been somewhat helpful but that she was now having increased neck and back pain. As a result, Dr. Kondelis repeated the cervical injection at C7-T1 and performed a trigger point injection and epidural for the right sacroiliac joint. (R. 353).

On March 4, Ms. Wolak expressed serious concerns about her increased pain, especially in the neck and upper back. Dr. Kondelis reported that she was "emotional and tearful" and that she complained that her medications were insufficient to control her pain. (R. 285). His examination showed "profound" tenderness in the upper back muscles and joints, with some radicular component into her arms. As a result, Dr. Kondelis increased Ms. Wolak's pain medications and added a sustained-release morphine drug in the form of MS Contin. (R. 286). One week later, he performed epidurals, trigger point injections, and a right sacroiliac joint injection. (R. 287). Additional injections were given on April 11, and Dr. Kondelis wrote on April 24 that Ms. Wolak "cannot work because she is suffering from and being treated for conditions and a severe injury which prevent her from being able to work." (R. 346, 286).

By March 2008, Ms. Wolak had returned to see her orthopedist, Dr. Hennessey. That physician noted that she was continuing to experience neck pain with particular tenderness at the C6 level. Accordingly, Dr. Hennessey recommended on March 21 that she have an anterior cervical ...


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