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Marlene D. Mcclinton v. Michael J. Astrue

February 6, 2012


The opinion of the court was delivered by: Magistrate Judge Maria Valdez


This action was brought under 42 U.S.C. § 405(g) to review the final decision of the Commissioner of Social Security denying Plaintiff Marlene McClinton's claim for Disability Benefits. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow, McClinton's motion for summary judgment [Doc. No. 24] is granted in part and denied in part, and Defendant's motion for summary judgment [Doc. No. 38] is denied. The Court finds that this matter should be remanded to the Commissioner for further proceedings.



Plaintiff Marlene McClinton ("Plaintiff," "Claimant," or "McClinton") originally filed an application for a period of disability and disability insurance benefits on June 20, 2005, alleging disability beginning June 29, 2004. (R. 52.) Plaintiff's claim was denied initially on February 27, 2006, and upon reconsideration on August 17, 2006. (Id.) Plaintiff timely filed a written request for a hearing by an Administrative Law Judge ("ALJ") on August 28, 2006. (Id.) On October 6, 2008, Plaintiff personally appeared and testified at the hearing and was represented by counsel. (Id.) An impartial vocational expert, Glee Ann L. Kehr, also appeared at the hearing. (Id.)

On November 12, 2008, the ALJ denied Plaintiff's claim and found her "not disabled" under the Social Security Act. (Id. at 63.) The Social Security Administration Appeals Council denied Plaintiff's request for review on May 11, 2009. (Id. at 3.) The ALJ's decision thus became reviewable by the District Court under 42 U.S.C. § 405(g), see Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005), and Plaintiff filed the instant motion on March 19, 2010.


A. Background

McClinton was born on October 17, 1952 and was fifty-one years old on June 29, 2004, the date on which she claims her disability period began.*fn1 (R. 19.) Plaintiff claims that a degenerative disease she has in her neck causes pain that prevents her from working. (Id.) McClinton first experienced neck pain in 1998, which was of a sudden onset. (Id. at 353.) She denies any major fall or injury. (Id.) She was diagnosed with a pinched nerve and underwent physical therapy. (Id.) The therapy helped moderately and by 1999, she did not have any pain in the neck. (Id.) By 2000, the pain returned and became progressively worse. (Id.) The specific impairments Plaintiff alleges include: degenerative disc disease of the cervical spine, spinal stenosis, gastro-esophageal reflux disease, irritable bowel syndrome and degenerative joint disease of both knees. (Id. at 30, 54.) Before the accident, Plaintiff worked as an office clerk in a payroll department.*fn2 (Pl.'s Mot. Summ. J. p. 21) Before that, she worked as a medical transcriptionist. (R. 41.) McClinton has taken Hydrocodone, Naproxen, Lortab, Naprosyn,

Dicyclomine, Ultracet, Hyoscyamine, Aciphex, Nexium and Levbid to treat her symptoms. (Id. at 30, 384.) She received cervical neck injections in 2004 without much benefit. (Id. at 356.) She has not received physical therapy since 2004, and she has not undergone surgery. (Id. at 353, 356.)

B. Testimony and Medical Evidence

1. McClinton's Testimony

McClinton's main symptom is severe pain. (R. 19, 21, 28-30.) Her pain is primarily on her head, shoulders, back, and the right side of her body, radiating from her neck. (Id. at 29.) The pain is exacerbated by almost any kind of activity. (Id. at 21.) Caring for her own personal needs is difficult and she often requires assistance. (Id.) She estimates that she could probably stand ten to fifteen minutes before she would have to sit down, and she says that she can "probably walk to the mailbox and back, or maybe a block." (Id. at 26.) She was able to minister to people at a nursing home and do some gardening up until Spring of 2008. (Id. at 23, 25.) McClinton explained that although surgery has been suggested for her neck, "one doctor told [her] that surgery wouldn't help because of the degenerative nature of [her] joint disease and the fact that [she] has such a severe case of arthritis." (Id. at 33.)

2. Medical Evidence

a. magnetic resonance imaging and x-rays

On December 23, 2003, a magnetic resonance imaging exam ("MRI") of the cervical spine showed bulging discs identified at C3-C4, C4-C5 and C6-C7, and a significant finding at C5-C6, where there was a fairly large right central disc herniation present, associated with mass-effect. (R. 307.) On August 23, 2004, x-rays showed degenerative changes throughout the cervical spine with disc space narrowing and prominent anterior osteophyte formation extending from C3 through C7, and mild osteophytic encroachment upon neural foramina bilaterally. (Id. at 276.) X-rays of the lumbosacral spine showed minimal early degenerative change. (Id. at 277.) A September 2004 MRI showed severe multi-level degenerative changes in the cervical spine with disc space narrowing and osteophyte formation. (Id. at 284.) In April 2005, an x-ray of Plaintiff's cervical spine showed degenerative changes at C3-C4, C4-C5, C5-C6, and C6-C7, prominent anterior osteophytes at all of those levels, possible very mild disc space narrowing at C4-C5 and C5-C6, and encroachment upon the neural foramina, predominantly at C5-C6 bilaterally. (Id. at 283.) In April 2006, an MRI of the right knee revealed a small nonspecific joint effusion in the suprapaterllar bursa and some intrasubstance increased signal in the posterior horn of the lateral meniscus. (Id. at 493.) Another MRI of the cervical spine in November 2006 showed little change from the 2004 exam. (Id. at 449.) In October 2007, a computerized tomography scan ("CT") of the neck showed no mass, but did show some constriction of the airway at the level of the tonsils, along with scattered nonspecific lymph nodes in the jugular sheath and lateral cervical regions, a couple of thyroid nodules, and a large right-sided calcified disc herniation at C5-C6, flattening the anterior surface of the spinal cord. (Id. at 450.)

b. treating physicians

In August 2004, Plaintiff saw her current primary care physician, Dr. Wanda Hatter-Stewart*fn3 (a specialist in internal medicine), for an examination secondary to seeking authorization for disability from her job. (Id. at 57.) Dr. Hatter-Stewart diagnosed severe multilevel degenerative changes in the cervical spine and disc space narrowing, osteophyte formation, disc bulges, herniation and severe mass effect on the thecal sac. (Id. at 289.) Dr. Hatter-Stewart recommended treatment with Ultracet and injections at a pain clinic. (Id.) Dr. Hatter-Stewart examined Plaintiff pursuant to her disability claim on August 25, 2005. (Id. at 58.) The doctor recounted Plaintiff's symptoms of pain, stiffness and parasthesia, as well as the clinical findings of decreased range of motion and paraspinal tenderness. (Id. at 251.) Dr. Hatter-Stewart stated that Plaintiff's prognosis was "guarded" and that her response to the treatment that had been offered had been poor. (Id.) Among other conclusions, the doctor reported that Plaintiff's pain symptoms were constantly severe enough to interfere with her attention and concentration, and that Plaintiff's symptoms interfered to the extent that she was unable to maintain persistence and pace to engage in competitive employment. (Id. at 252.)

Plaintiff saw Dr. Carol Harris, a pain management specialist, from September 2004 through July 2005. (Id. at 58.) At Plaintiff's first appointment, Dr. Harris noted cervical spine flexion of fifteen degrees, extension of twenty degrees, facet tenderness at C3 through C5, decreased motor strength in the left hand and arm, but no sensory deficits. (Id. at 291-92.) Dr. Harris diagnosed cervical facet arthopathy and cervical radiculopathy and reported that Plaintiff said that she did not want surgery. (Id. at 292.) Plaintiff did agree to cervical epidural steroid injections to diminish a significant portion of her inflammatory response. (Id.) Plaintiff later reported that she experienced greater pain after the injections. (Id. at 297-300.)

Plaintiff underwent physical therapy from December 2006 through March 2007 for pain related to the activities of daily living. (Id. at 59.) At the beginning of therapy, her therapist noted decreased cervical range of motion and tightness in the cervical musculature. (Id.) Plaintiff discontinued the physical therapy because she said that any exercise caused pain. (Id.)

c. examining, non-treating physicians

On August 24, 2004, Plaintiff underwent a neurologic independent medical examination for the State Employee's Retirement System of Illinois by Dr. Norman V. Kohn, a specialist in neurology. (Id. at 57.) During the exam, Plaintiff exhibited full range of motion in all of her joints, no deficit was identified in the proximal portion of her arms, and her motor functions, gait and coordination were normal. (Id. at 384-85.) Dr. Kohn also found that Plantiff's reflexes were brisk at the left knee and biceps. (Id. at 385.) Dr. Kohn determined that there was clear evidence of cervical spondylosis with spinal cord compression, and some evidence of myelopathy, including brisk reflexes and reflex abnormality. (Id.) He found no specific deficit on examination, but noted that Plaintiff's symptoms are consistent with a syndrome characterized by an anatomic abnormality that causes poorly localized but distracting pain made worse with neck movement. (Id.) Dr. Kohn recommended treatment with a soft cervical collar, and opined that without spinal surgery, Plaintiff could be expected to have continued symptoms. (Id.) Dr. Kohn indicated that Plaintiff was incapable of performing her job duties. (Id. at 288.)

On February 14, 2006, Plaintiff underwent an internal medicine consultative examination for Illinois DHS conducted by Dr. M.S. Patil. (Id. at 58.) Dr. Patil noted no deformity of the spine, no paravertebral tenderness or spasm, mildly decreased range of motion of the cervical spine, normal reflexes, unimpaired superficial and deep sensations, unimpaired motor strength, a normal gait, the ability to walk fifty feet without sign of abnormality, and no difficulties with fine and gross manipulation of her hands and fingers. (Id. at ...

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