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Robert A. Roper v. Michael J. Astrue

August 21, 2012


The opinion of the court was delivered by: Magistrate Judge Susan E. Cox


Plaintiff Robert A. Roper seeks judicial review of a final decision by the Commissioner of Social Security, Michael J. Astrue ("Commissioner"), denying his application for Disability Insurance Benefits ("DIB") under the Social Security Act.*fn1 For the reasons discussed herein, the plaintiff's motion to remand is granted [dkt. 15].


On May 14, 2007 plaintiff filed an application for DIB and a period of disability beginning on October 31, 2006.*fn2 He alleged constant pain due to a ruptured disk at L5, which in turn has limited his ability to work because his back locks up three to four times a day preventing him from any further mobility and any standing for longer than 10 minutes.*fn3 Plaintiff's claim was denied on August 31, 2007.*fn4 Plaintiff then filed a request for reconsideration within the permitted 60 days following the Notice of Disapproved Claim, which was again denied on November 30, 2007.*fn5 On January 4, 2008, plaintiff requested a hearing before an Administrative Law Judge ("ALJ").*fn6

Plaintiff's request was granted and a hearing took place before ALJ Mary Ann Poulose on October 8, 2008 in Orland Park, Illinois.*fn7 Also appearing at the hearing was an impartial vocational expert ("VE"), Michelle M. Peters. *fn8 Following the hearing the ALJ issued an unfavorable decision, finding plaintiff not disabled at anytime from October 31, 2006through the date of the decision, October 29, 2009.*fn9 Plaintiff then filed a request for review of the ALJ's decision with the Office of Social Security Administration Appeals Council ("Appeals Council") on December 9, 2009.*fn10 The Appeals Council denied plaintiff's request for review on April 15, 2011.*fn11 Thus, the ALJ's October 29, 2009 decision stands as the final decision of the Commissioner.*fn12 Plaintiff filed this action on December 22, 2011.


The facts set forth under this subsection provide a brief review of the plaintiff's background and the events that led to his application for DIB and a period of disability. They are derived from the medical record, which the ALJ reviewed at the hearing on October 8, 2008 and considered in its entirety when rendering her decision on October 29, 2009.

Plaintiff was born on May 9, 1979, making him thirty years of age on the date the ALJ issued her final decision.*fn13 He completed high school through the twelfth grade in 1997.*fn14 Between May 1996 and May 1999, he held four different jobs which include the following stores/companies (most recent first): Toyota Tshusho; Menards; Joliet Cabinets; and Brown's Chicken.*fn15 Plaintiff worked at Toyota Tshusho as a forklift operator in a warehouse from May 1999 to approximately October 2006.*fn16 Plaintiff drove a forklift to load and unload trucks, stacked pallets by hand for balancing and bracing, along with some paperwork.*fn17 At the Menards store, plaintiff worked as a forklift operator in a warehouse from may 1998 to May 1999.*fn18 Plaintiff would restock wood in the lumbar yard and help customers load their vehicles, and also drove the forklift to load commercial Menards' trucks.*fn19

At Joliet Cabinet, plaintiff worked as a cabinet maker in a warehouse from June 1997 to April 1998.*fn20 Plaintiff would dry fit cabinets, lift wood used in cabinet production that weighed fifty or more pounds and carry it approximately 25 feet for 6 hours a day.*fn21 At Brown's Chicken, plaintiff worked as a cook from May 1996 to May 1997.*fn22 Plaintiff cooked and handled the cash register.*fn23 Plaintiff also lifted and carried bags of chicken numerous times a day.*fn24

On his first disability report dated May 14, 2007, plaintiff indicated that he began experiencing back pain in October 31, 2006.*fn25 A review of plaintiff's medical records, prior to his application for disability on May 14, 2007, is critical to set the framework for his overall medical history.

A. Medical record: pre-disability application

On June 28, 2004 plaintiff first visited Dushyant Patel, M.D., at Joliet Open MRI, L.L.C. regarding lower back pains.*fn26 An MRI revealed a slight anterior displacement of L5 over S1 but no spondylolysis and a questionable small disc protrusion at L3-L4.*fn27 From June 12, 2006 to February 5, 2007, plaintiff visited Maimoona S. Aijaz, M.D., his treating physician, 19 times for right leg swelling, back pain, and his obesity problem.*fn28 Directly related to these physical problems, Dr. Aijaz excused plaintiff from work many times for days or weeks on end throughout this time period.*fn29 To address these three concerns, plaintiff visited numerous specialists to discuss potential remedies.

In particular, on July 17, 2006, plaintiff consulted with Christopher Joyce, M.D. for laparoscopic gastric bypass surgery to address his obesity problem.*fn30 A week later on July 24, 2006, plaintiff visited Ram Pankaj, M.D., F.A.A.O.S., due to right leg swelling and poison oak on both legs.*fn31 Dr. Pankaj noted that plaintiff's weight was the major issue causing the swelling and varicose veins in both legs.*fn32 As a result of several consultations and recommendations from various doctors, on December 11, 2006 plaintiff underwent bariatric surgery to resolve his morbid obesity at Silver Cross Hospital under Dr. Joyce's care.*fn33 At the time of the surgery, plaintiff was 6'2", 410.5 pounds, with a BMI of 52.7.*fn34

On January 15, 2007, following his bariatric surgery, plaintiff underwent an MRI at Future Diagnostics Group and Jon R. Jester, M.D., found the following impressions: Grade I L5-S1 spondylothesis with facet arthropathy and possible left chronic spondylothesis and very shallow, central, and slightly left protrusion of the L3-L4 disc primarily indenting the epidural fat.*fn35 One

week later on January 23, 2007, plaintiff received a progress evaluation from Dr. Pankaj where he was diagnosed with lower back pain secondary to spondylothesis and facet arthropathy.*fn36 Later that month on January 31, 2007, plaintiff again met with Dr. Pankaj to discuss pain in his left ankle, which was found to be what is called osteochondritis disseccans, which is the separation of the ankle bone and the cartilage.*fn37

Plaintiff was prescribed certain medications prior to and at the time of filing his DIB application for his lower back problems. Specifically, plaintiff was prescribed Ibuprohen/200mg 2-QID and Tylenol/500mg 1-BID by Dr. Aijaz for pain.*fn38 The ensuing section details plaintiff's medical records from the time of his DIB application submission on May 14, 2007 up until the ALJ hearing on October 8, 2008.

B. Medical record: disability application through ALJ hearing

Plaintiff filed for disability on May 14, 2007.*fn39 From April 16, 2007 to October 30, 2007, plaintiff made fourteen visits to Ronald R. Pieroni, D.P.M., at Bolingbrook Foot and Ankle Center, P.C. to discuss options regarding the pain in his left ankle.*fn40 Dr. Pieroni diagnosed plaintiff as having a rupture of the "anterior talofibular and calcaneal (or heel bone) fibular ligaments" in his left ankle joint.*fn41 The physical treatment appeared to be working through June 2007 but the pain in his left ankle flared back up in October of 2007.*fn42 Plaintiff, with Dr. Pieroni's recommendation, requested to have surgery on his left ankle, which he had on October 19, 2007 at Loyola Ambulatory Surgery Center at Oakbrook.*fn43

On July 16, 2007, plaintiff had a cardiology consultation at Provena Saint Joseph Medical Center with R. Elgar, M.D., and no serious cardiac issues outside of aymptomatic sinus bradycardia, which is the slowness in heart rate, were detected by the electrocardiogram ("ECG").*fn44

On August 11, 2007, plaintiff visited Gozi Health Services for a consultation by ChukwuEmeka F. Ezike, M.D., M.P.H., who was given an "internal medicine consultative examination" form by the Bureau of Disability Determination Services to examine plaintiff's medical status.*fn45 There, Dr. Ezike found that plaintiff had lower back pain.*fn46

On two occasions in January and February of 2008, plaintiff visited Rober T. Semba, M.D., about his chronic back and leg problems.*fn47 Dr. Semba prescribed Neurontin but it did not seem to work on a consistent basis and plaintiff was referred to a spine surgeon.*fn48 Upon referral, on March 19, 2008, plaintiff visited James B. Boscardin, M.D., regarding potential surgery but was given steroids as a first option (i.e. Depo-Medrol 80 and 6 of Decadron) for his lower back pain.*fn49 At the follow up consultation on March 26, 2008, Dr. Boscardin found the following from an EMG and MRI exams regarding the plaintiff's lower back: 1) peripheral neuropathy is apparent; 2) there are mechanical issues with his lower back; 3) there is Grade I spondylothesis at L5-S1; 4) there are some mild changes at L4-5; 5) there is a left protrusion at L3-4.*fn50 Dr. Boscardin determined that plaintiff did not need surgery or epidurals and recommended that plaintiff return to therapy to work on the core muscles surrounding the spinal tissue.*fn51 Finally, if plaintiff completed a thorough physical therapy regimen, Dr. Boacardin determined that he would be able to return to the workforce.*fn52

From June 16, 2008 to October 3, 2008 plaintiff visited Dr. Aijaz six times regarding difficulty breathing and in her notes Dr. Aijaz suspected dyspnea, or labored breathing.*fn53 October 1, 2008 plaintiff was referred by Dr. Aijaz to have a echocardiogram at Provena Saint Joseph Medical Center where Danielle P. DeGirolami, M.D., found the left ventricle had a lower overall reduction in systolic function, essentially concluding plaintiff had dyspnea in the left ventricle.*fn54

Plaintiff was prescribed certain medication after filing his DIB application for his lower back problems. Specifically, plaintiff was prescribed Vicodin by Dr. Aijaz for lower back pain.*fn55 The Vicodin had the following side effects: fatigue, drowsiness and lightheadedness.*fn56 The ALJ hearing took place on ...

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