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Scott Erwin v. Michael J. Astrue

August 30, 2012


The opinion of the court was delivered by: Magistrate Judge Young B. Kim


Before the court is Scott Erwin's motion for summary judgment challenging a final decision of the Commissioner of Social Security ("the Commissioner") denying his application for disability insurance benefits ("DIB"). Erwin alleges that he is disabled due to severe back pain stemming from injuries he sustained in an ATV accident coupled with a degenerative disc disease of the lumbar spine. For the following reasons, Erwin's motion is granted and the case is remanded for further proceedings consistent with this opinion.

Procedural History

Erwin filed his application for DIB on July 30, 2008, alleging a disability onset date of November 21, 2007. (Administrative Record ("A.R.") 113.) The Commissioner denied his claims initially and on reconsideration. (Id. at 61, 70-73.) Erwin then requested, and was granted, a hearing before an administrative law judge ("ALJ"). After considering Erwin's testimony and medical evidence, the ALJ concluded that he is not disabled as defined in the Social Security Act. (Id. at 30.) When the Appeals Council denied his request for review, (id. at 1-3), the ALJ's decision became the final decision of the Commissioner, see Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012). On March 4, 2011, Erwin filed the current suit seeking judicial review of the ALJ's decision. See 42 U.S.C. § 405(g). The parties have consented to the jurisdiction of this court. See 28 U.S.C. § 636(c).


Erwin traces his disability allegations to his involvement in a June 2006 ATV accident, in which he suffered spinal compression fractures. According to Erwin, in the years since the accident, he has experienced persistent back pain of a severity that makes it impossible for him to work full-time. At his February 2010 hearing before an ALJ, Erwin provided both documentary and testimonial evidence in support of his claims.

A. Erwin's Medical Evidence

Erwin submitted medical records documenting that as a result of his 2006 ATV accident he suffered compression fractures at vertebrae T11 and T12, which are thoracic vertebrae located at the bottom of the middle segment of the vertebral column. (A.R. 282, 293, 324, 437.) In December 2007 Erwin had an MRI of his lumbar spine just below T11 and T12, which revealed the discs at L3-L4, L4-L5, and L5-S1 were "desiccated." (Id. at 294.) It also revealed "superior compression deformity of T11 and T12," although the reviewing physician found no "convincing evidence of acute abnormality." (Id. at 294-95.) Neurological tests were abnormal and suggestive of "L5/S1 lumber sacral radiculopathy"-or nerve irritation caused by vertebral disc damage, in layman's terms-"still in acute phase." (Id. at 329.) His attending physician filled out a report describing him as "unable to work at all until further notice." (Id. at 330.)

On January 15, 2008, Dr. Theodore Eller observed that his review of Erwin's MRI scan showed that his compression fractures had "satisfactorily healed" since a December 2007 MRI, but noted that "there are degenerative changes throughout the lumbar spine." (Id. at 282.) Dr. Eller also observed that Erwin had "an antalgic posture when seated or when standing," meaning a posture assumed so as to lessen pain. (Id.) Dr. Eller noted that he was not confident that surgery could relieve Erwin's pain, but wrote that losing about 150 pounds and going through physical therapy were viable non-surgical treatments. (Id. at 283.)

Three months later, Dr. Sara Holz, an examining orthopedist, diagnosed Erwin with an L4/L5 annular tear and a T11/T12 chronic compression fracture. (Id. at 349-50.) She described him as battling severe pain in the low back and numbness in his legs, and noted that "any activity increases his pain." (Id. at 349.) Dr. Holz observed that "going from a seated to a standing position, he has difficulty with pain." (Id. at 375.) She recommended that he engage in physical therapy and gave him a prescription for a lumbar corset. (Id. at 350.) Shortly thereafter, Erwin began attending physical therapy with Chamberlin DeWitte. (Id. at 393.) DeWitte noted that Erwin had a sitting and standing tolerance of 15 to 20 minutes and observed that "all hip mobility is painful around the hip joint and into the patient's low back." (Id.) She observed that Erwin had "difficulty relaxing and maintaining any position" while she was evaluating him. (Id. at 394.)

In May 2008 Erwin sought emergency-room treatment for his back pain, which he said he had exacerbated when reaching to pick up some soap. (Id. at 296.) The emergency-room doctor ordered a spinal x-ray which revealed mild compression deformities of T11 and T12 and degenerative changes, but "no evidence of acute pathology." (Id. at 297.) Two weeks later Erwin underwent an MRI of his lumbar spine. (Id. at 290.) Dr. Matthew Dodaro reviewed the results, noting that the test revealed T11 and T12 compression deformities without significant change, a diffuse disc bulge at L3-L4, a broad-based posterior disc protrusion at L4-L5, and a focal disc protrusion at L5-S1. (Id.) Dr. Dodaro described Erwin's condition as "[s]table degenerative disease of the lower lumbar spine without significant foraminal or central canal stenosis." (Id.) A second reviewing doctor described Erwin as having a small bone spur at L4 and mild compression deformities at T11 and T12, and described his condition as "stable." (Id. at 292.)

In May and June 2008 Erwin again sought treatment for his pain from Dr. Holz. She noted that Erwin had "difficulty getting off and on the examination table" and was "unable to sit comfortably on the examination table." (Id. at 360, 358.) She also noted that for Erwin, "some days are good and some days are bad." (Id. at 360.) Holz referred Erwin to Dr. Paul Anderson for a surgical consultation. (Id. at 324.) Dr. Anderson noted that Erwin was "very obese" and moved "with a lot of facial grimacing." (Id.) He reported that light touching throughout the dorsal spine induced significant pain and described his impression as being that Erwin has chronic pain syndrome as a result of the fractures at T11 and T12. (Id. at 324-325.) Dr. Anderson did not see Erwin as a good surgical candidate and described Erwin as exhibiting a "significant amount of pain behavior." (Id. at 325.) He recommended that Erwin be treated in Comprehensive Pain Management and that he lose weight. (Id.)

In September 2008 Erwin had an MRI of his left knee, revealing that he had torn his left-knee ACL that had to be repaired surgically. (Id. at 425.) That same month consulting physician Charles Kenney completed a residual functional capacity ("RFC") assessment after reviewing Erwin's file. (Id. at 412-19.) Dr. Kenney considered Erwin's descriptions of his back pain and mobility loss to be "partially credible," but said that the extent of his described limitations is not supported by the objective medical findings. (Id. at 419.) Dr. Kenney opined that Erwin has the RFC to sit for about six hours and stand or walk for at least two hours in an eight-hour work day. (Id. at 413.)

Two months after Erwin's knee surgery, his surgeon, Dr. Vincent Cannestra, reported that Erwin's "left knee is essentially back to normal," but noted that Erwin's "primary complaint is low back pain." (Id. at 441.) In December 2008, Dr. Cannestra met with Erwin to discuss treating his back pain. Erwin reported experiencing severe low back pain and tail bone pain, with numbness and tingling that radiates into both legs, especially on the right side. (Id. at 438.) Dr. Cannestra reviewed Erwin's x-rays and determined that they show degenerative disc changes in the thoracic and lumbosacral spine, and an old healed compression fracture at T11 and T12. (Id. at 437.) Noting that conservative management had failed Erwin, Dr. Cannestra recommended a CAT scan and epidural steroid injections. (Id.)

In December 2009 and January 2010 Erwin met with Dr. Jeffrey Oken to discuss his back pain. Erwin described his pain as being at a level of seven out of ten and reported that it is made worse with any activity. (Id. at 507, 509.) Erwin also reported sleep problems, saying that the pain interfered with his ability to sleep for more than two or three hours a night. (Id. at 509.) Erwin underwent a trigger point injection procedure to inject lidocaine into his lumbar paraspinal area, and tolerated the procedure well. (Id. at 507.) Dr. Oken gave his impression of Erwin's condition as stemming from a disc bulge and two disc protrusions. (Id. at 508.) He recommended that Erwin engage in a half-day pain management program involving physical therapy, functional conditioning, psychology, and education. (Id.)

At least two of Erwin's treatment providers reported that prolonged sitting causes him significant discomfort. In October 2009, Dr. Lynn Rader observed that sitting for more than 90 minutes causes Erwin to experience tingling in his left leg. (Id. at 480.) In more current clinical notes, dated January 18, 2010, licensed clinical social worker Linda Benton stated that Erwin "is not able to sit for more than an hour." (Id. at 476.) She noted that his back pain "seriously affected his life and greatly reduced his ability to ...

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