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Robin L. Tovar v. Michael J. Astrue

August 27, 2012


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

Magistrate Judge Michael T. Mason


Claimant Robin L. Tovar ("Tovar" or "claimant") has filed a motion for summary judgment [18] seeking reversal or remand of the final decision of the Commissioner of Social Security ("defendant" or "Commissioner") denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act, 42 U.S.C. §§ 416(i), 423(d), and 1382c(a)(3)(A). The Commissioner asks the Court to uphold the Administrative Law Judge's ("ALJ") decision. This Court has jurisdiction to hear this matter pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). For the reasons set forth below, the Court grants claimant's motion for summary judgment [18] in part and denies it in part.


A. Procedural History

Claimant filed applications for DIB and SSI on January 29, 2007 alleging an onset of disability on January 5, 2007. (R. 120-22, 128-30.) The Social Security Administration denied her claims initially on May 3, 2007, and upon reconsideration on December 27, 2007. (R. 55-63, 70-78.) Tovar filed a timely request for a hearing on January 22, 2008. (R. 80.) On June 18, 2009, Tovar appeared with counsel before ALJ Kenneth E. Stewart. (R. 22-54.) On August 20, 2009, ALJ Stewart issued a written decision denying Tovar's request for benefits. (R. 13-21.) Tovar filed a timely request for review. (R. 8-9.) On February 25, 2011, the Appeals Council denied her request, making the ALJ's decision the final decision of the Commissioner. (R.1-3); see Jirau v. Astrue, 715 F. Supp. 2d 814, 823 (N.D. Ill. 2010). Tovar subsequently filed this timely action in the District Court. Thereafter, the parties consented to this Court's jurisdiction pursuant to 28 U.S.C § 636(c).

B. Medical Evidence

Claimant seeks DIB and SSI for disabling conditions stemming from a herniated disc, sciatica, congenital spinal stenosis, decreased bladder control, anxiety, and depression. (R. 135.)

1. Treating Physicians

Throughout 2006 and 2007, Tovar sought treatment from Dr. Sarada Alla at the Carpentersville Community Health Center/Aunt Martha's Center, which her attorney at the administrative level described as a "sliding scale medical and psychiatric clinic for the indigent." (R. 221.) At her first appointment, on August 1, 2006, Dr. Alla assessed anxiety and prescribed Paxil and counseling. (R. 276-77.) On October 25, 2006, Tovar complained of lower back pain. (R. 274-75.) She had the same complaint on December 26, 2006. (R. 272-73.)

On December 27, 2006, Tovar sought chiropractic treatment at Turner Pain and Wellness Center ("Turner") for lower back pain, right leg pain, and numbness, beginning six days earlier. (R. 234.) The examining chiropractor noted a history of sciatica down the right leg. (R. 237.) A musculoskeletal examination revealed mostly normal findings.

(R. 238.) A supine straight leg raise test was positive on the left at 70 degrees and on the right at 25 degrees. (Id.) An x-ray of Tovar's anteroposterior and lateral lumbar spine revealed diminished L5-S1 disc space. (R. 239.) The chiropractor diagnosed a lumbar sprain, neuralgia, neuritis, radiculitis, displacement of lumbar intervertebral disc, and nonallopathic lesions of the sacral region. (Id.) He recommended chiropractic manipulation and physical therapy three times per week for three to four weeks. (Id.) The prognosis was "favorable." (Id.)

Tovar again sought treatment at Turner on December 29, 2006 complaining of continued back pain. (R. 243-44.) The examining chiropractor made adjustments, noted a lower back sprain, and commented that an MRI may be needed if Tovar's pain fails to improve. (R. 244.) On January 8, 2007, Tovar returned to Turner complaining of back spasm and leg numbness after bending over to empty the dishwasher. (R. 245.) The treating chiropractor noted that Tovar "likely has disc injury," but did not deem an MRI necessary as "it will not change therapy plan." (Id.)

On January 9, 2007, instead of returning to Turner, Tovar visited the urgent care center at Sherman Hospital complaining of sharp back pain radiating to her right leg, which was exacerbated by movement. (R. 254.) An MRI of the lumbar spine revealed a disc herniation at L5-S1 that was "completely effacing the bony canal and obliterating the thecal sac and the nerve roots at this level." (R. 260.) The MRI also revealed "some underlying congenital spinal stenosis throughout the lumber spine." (Id.) Mild disc bulging was seen at L3-4 and L4-5. (Id.) The attending physician prescribed Darvocet, Flexeril, and Naprosyn, and advised Tovar to follow up with her primary care physician in one to two days. (R. 253.)

On January 10, 2007, Tovar followed up with Dr. Alla who referred her to a neurosurgeon at the University of Illinois Medical Center ("Medical Center"). (R. 270-71.) Tovar underwent a neurosurgery consultation on January 16, 2007. (R. 314-15.) She explained that her back pain had become more intense and that she experienced no relief from pain medication. (R. 314.) She also complained of genital pain and leg numbness. (Id.) The examining physician assessed a L5-S1 central disc extrusion and admitted Tovar for surgery. (R. 315.) Dr. Manali Barua promptly performed a L5 laminectomy and L5-S1 discectomy. (R. 322-24.) Tovar was discharged on January 17, 2007 with instructions not to return to work. (R. 339.)

On February 20, 2007, Tovar returned to the Medical Center for post-operative follow up. (R. 312-13.) Tovar reported that the numbness in her genital area and the lateral side of her thigh, leg, and foot had improved, however she still had some pain and numbness on her heels bilaterally. (R. 312.) Tovar also complained of headaches, but Dr. Barua did not believe that those headaches could be attributed to a "cerebrospinal fluid leak." (Id.) Dr. Barua advised Tovar to try caffeine products to alleviate her headaches and referred her to physical therapy for her pain. (R. 313.) She was advised to return for another MRI if her symptoms did not improve. (Id.) As claimant has explained on multiple occasions, she never returned to the Medical Center for an MRI or physical therapy due to a lack of medical insurance. (See R. 359, 408.)

Tovar did follow-up with Dr. Alla on February 28, 2007. (R. 268-69.) Tovar returned to see Dr. Alla on June 13, 2007 for a refill of her Paxil prescription. (R. 374- 75.) Dr. Alla noted a history of depression and panic attacks and again referred Tovar for counseling. (R. 375.) On July 20, 2007, she returned complaining of headaches and a sore throat. (R. 372-73.)

On September 15, 2008, Tovar began treatment with Dr. J. Hussain, a psychiatrist at Aunt Martha's Center. (R. 444-45.) Tovar explained that she was abused by her stepfather both physically and mentally as a child. (R. 444.) She has been pulling out her hair and experiencing nightmares about her abuse since age twelve. (Id.) Tovar left home at age fifteen after her stepfather tried to sexually abuse her. (Id.) Dr. Hussain assessed moderate and recurrent depression, post traumatic stress disorder ("PTSD"), and trichotillomania (chronic hair pulling). (R. 445.) She referred Tovar for individual counseling and prescribed Celexa. (Id.)

On October 13 and November 13, 2008, Tovar complained of increased anxiety, hair pulling, and nightmares. (R. 442-43.) A month or so later, Tovar complained of pain and requested Xanax, which Dr. Hussain ultimately prescribed. (R. 441.) Tovar returned to see Dr. Hussain on three occasions in 2009 and continued taking Xanax and Celexa for her feelings of anxiety and depression. (R. 449-51.)

2. State Agency Consultants

a. Physical Assessments

On April 15, 2007, three months post-surgery, Dr. Chansoo Kim completed a Physical Residual Functional Capacity ("RFC") Assessment. (R. 298-305.) Dr. Kim found that Tovar could occasionally lift and/or carry twenty pounds and could frequently lift and/or carry ten pounds. (R. 299.) Further, Dr. Kim concluded that Tovar could stand and/or walk with normal breaks for about six hours in an eight-hour workday, and could sit with normal breaks for about six hours in an eight-hour workday. (Id.) With respect to postural limitations, Dr. Kim found that Tovar could frequently balance, occasionally climb ramps and stairs (but never ladders, ropes or scaffolds), and occasionally stoop, kneel, crouch, and crawl. (R. 300.) He found no manipulative, visual, communicative, or environmental limitations. (R. 300-02.)

On December 11, 2007, Dr. Roopa K. Karri conducted an internal medicine consultative examination. (R. 407-10.) Tovar reported "she has a history of low back pain with two slipped discs and stress incontinence of urine" with coughing and sneezing. (R. 407-08.) Tovar explained that her right leg is numb and her entire right side is stiff. (R. 408.) She also complained of ...

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