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Donna M. Sherwood v. Michael J. Astrue

November 28, 2012


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


Plaintiff, Donna Mae Sherwood, seeks judicial review of a final decision of the Commissioner of the Social Security Administration ("SSA") denying her application for a period of disability and disability insurance benefits ("disability benefits") under Title II of the Social Security Act, 42 U.S.C. §§ 216(i) and 223(d) ("the Act").*fn1 Ms. Sherwood has filed a motion for summary judgment, seeking to reverse the Commissioner's final decision or remand the matter for additional proceedings [dkt. 20]. The Commissioner has also filed a motion for summary judgment, requesting that his final decision be upheld [dkt. 26]. For the reasons set forth below, Ms. Sherwood's motion is granted, the Commissioner's motion is denied, and this case is remanded to the ALJ for further findings consistent with this opinion.


Ms. Sherwood initially filed a Title II application for disability benefits on August 9, 2006, alleging that her disability began on September 12, 2003.*fn2 The primary reasons for Ms. Sherwood's application for disability benefits related to her degenerative disc disease, lumbar discectomy, scoliosis, ectasia and spinal stenosis, and depression.*fn3 Further, Ms. Sherwood alleged that she was disabled due, in part, to obsessive-compulsive disorder ("OCD"), anxiety, and a personality disorder.*fn4 Her claim was initially denied on February 20, 2007.*fn5 Ms. Sherwood filed a request for reconsideration on April 27, 2007,*fn6 which was later denied on June 1, 2007.*fn7 Subsequently, Sherwood filed a written request for a hearing before an Administrative Law Judge ("ALJ") on June 20, 2007, and this request was granted on July 2, 2007.*fn8 The hearing was originally scheduled for April 9, 2009, but the matter was continued so that Ms. Sherwood could obtain representation.*fn9 On April 7, 2010, ALJ David W. Thompson presided over an administrative hearing.*fn10 Following this hearing, the ALJ issued an unfavorable decision on May 13, 2010, finding that Sherwood was not disabled within the meaning of the Act at any time after her application was submitted.*fn11 On June 8, 2010, Ms. Sherwood filed a request for review of the ALJ's unfavorable decision.*fn12 After granting Ms. Sherwood additional time to submit new evidence, the Appeals Council denied her request to review the ALJ decision on October 20, 2011, making the ALJ's decision the final decision of the Commissioner.*fn13 Ms. Sherwood filed this action on December 19, 2011, and she filed her motion for summary judgment on May 1, 2012.*fn14 The Commissioner filed a cross-motion for summary judgment on June 29, 2012.*fn15


The facts stated in this section are drawn from the administrative record. This section begins with an overview of Ms. Sherwood's personal background and medical history before and immediately after her September 2003 back injury, the onset of Ms. Sherwood's difficulties. Next, this section will separately summarize the medical records related to Ms. Sherwood's Workers' Compensation claim in 2003 and the medical records submitted for her current disability benefits application. Lastly, this section will give a synopsis of the ALJ hearing testimony and the ALJ's decision.

A. Ms. Sherwood's Background & Initial Back Injury

Before her back injury in 2003, Ms. Sherwood's medical history was "unremarkable" with no major injuries or serious medical conditions and only one prior surgery, a hysterectomy that was completed in 1994.*fn16 Ms. Sherwood's mental history before her back injury included experiences with both anxiety and panic, but she had never been hospitalized for any mental illness.*fn17 Jennifer Jones, M.D., became Ms. Sherwood's primary physician in April of 2002 and continued in this role through Ms. Sherwood's current application for disability benefits.*fn18
Ms. Sherwood graduated from high school, but she did not begin working outside of her home until she was 35 years old.*fn19 From July 1994 to February 2001, Ms. Sherwood was a school bus driver for First Student in Morris, Illinois.*fn20 Then from March 14, 2001, to February 14, 2003, Ms. Sherwood was an assembly line worker with Brownie Products ("Brownie") in Gardner, Illinois.*fn21 Lastly, Ms. Sherwood was employed by Bellettini Foods ("Bellettini") as a meat wrapper from July 2002 until September 12, 2003, when she sustained her back injury.*fn22 Ms. Sherwood described her jobs at Brownie and Bellettini as both involving constant bending, stooping, and standing.*fn23

On September 12, 2003, Ms. Sherwood injured her back while trying to lift a box at Bellettini.*fn24 According to Ms. Sherwood, she bent forward to pick up a heavy box, but then she could not straighten back up.*fn25 When a butcher came to assist her, he heard a pop in her back.*fn26 After this injury, Ms. Sherwood experienced extreme sharp pain in the lumbar region of her back, and this pain extended down into her thighs.*fn27 After attempting to recover in the break room for thirty minutes, Ms. Sherwood was driven home from work.*fn28 She then went to the emergency department ("ED") at Morris Hospital, where she was diagnosed as having a lumbar strain.*fn29 Upon being discharged from the ED, Ms. Sherwood was instructed to take Tylenol or ibuprofen for her pain and to follow up with her primary doctor within two to three days.*fn30

Ms. Sherwood visited her chiropractor, Sean F. Gibbs, D.C., immediately following her back injury on September 13, 2003.*fn31 Dr. Gibbs took X-rays of Ms. Sherwood's back, and he subsequently diagnosed Ms. Sherwood as having a pinched nerve and administered chiropractic treatment on the basis of this diagnosis.*fn32 After Ms. Sherwood experienced trouble walking following his treatment, Dr. Gibbs requested that she have an MRI.*fn33

Based on Dr. Gibbs' request, Robert G. Dirmish, M.D., completed an MRI of Ms. Sherwood's back on September 22, 2003.*fn34 Dr. Dirmish's impressions from this MRI were that Ms. Sherwood had diffuse lumbar disc degeneration and circumferential bulging.*fn35 He noted that there was a large, central and right paracentral herniation of the L2-3 intervertebral disc and that there was moderate L3-4 and mild L4-5 spinal stenosis.*fn36 After considering this information, Dr. Gibbs referred her to George E. DePhillips, M.D., S.C., for a neurosurgical consultation.*fn37 Ms. Sherwood last visited Dr. Gibbs on October 11, 2003.*fn38

Following Dr. Gibbs' recommendation, Ms. Sherwood first visited Dr. DePhillips on October 2, 2003.*fn39 During this visit, Dr. DePhillips observed that Ms. Sherwood experienced serious pain in her lower back, which radiated into her anterior thighs down to her knees.*fn40 Dr. DePhillips noted that the severity of Ms. Sherwood's pain fluctuated and that her legs frequently gave out at her knees.*fn41 He also stated her chiropractic treatments appeared to help her condition overall, but that her symptoms would worsen soon after completion of the treatment.*fn42 In his recorded impressions, he also recorded that the weakness in Ms. Sherwood's right leg was worse than her left.*fn43

Dr. DePhillips recommended an MRI scan, which revealed a large midline disk herniation at the L2-3 level, as well as severe compression of the thecal sac and severe spinal stenosis.*fn44 He determined that this disk herniation caused Ms. Sherwood's moderate to severe spinal stenosis.*fn45

Before recommending a discectomy, Dr. DePhillips attempted more conservative treatment and ordered a lumber myelogram and EMG.*fn46 Dr. DePhillips also ordered a neurological consultation with Syed Mushtaq Naveed, M.D.*fn47

Joseph B. Mallory, M.D., completed a lumbar myelogram for Ms. Sherwood on October 13, 2003.*fn48 Based on this test, he diagnosed her as having scoliosis and noted that she had a marked anterior extradural defect at L2-3, moderate defect at L3-4, and mild defect at L1-2 and L4-5.*fn49 Dr.

Mallory also conducted a CT scan of Ms. Sherwood's lumbar spine.*fn50 He stated that the most striking abnormality was the L2-3 disc space because the test showed diffuse bulging and marked diffuse posterior herniation, which produced marked compression on the thecal sac.*fn51 This test also indicated that she had diffuse bulging L3-4 disc with bulging of the L4-5 disc.*fn52 Dr. Mallory also noted that Ms. Sherwood had borderline spinal stenosis at L3-4 and L4-5 disc space levels.*fn53

Dr. Naveed submitted a neurological consultation report to Dr. DePhillips for Ms. Sherwood on October 13, 2003 after conducting an examination.*fn54 Dr. Naveed's report described Ms. Sherwood's initial injury in September 2003.*fn55 Dr. Naveed noted that Ms. Sherwood's pain was exacerbated by sitting for long periods of time, bending, lifting, and lying on her left side.*fn56 Dr. Naveed stated that Ms. Sherwood's pain improved with recent use of Percocet as well as with chiropractic therapy and physical therapy, but that the only clear relieving factor was a heavy dose of Percocet.*fn57 In his notes from her physical examination, Dr. Naveed described Ms. Sherwood's gait as atypical because she dragged her right leg.*fn58 Based on her musculoskeletal examination, he identified that she had spasms of the paraspinal muscles and scoliosis.*fn59 Dr. Naveed performed a nerve conduction velocity test ("NCV") and electromyogram test ("EMG") on October 7, 2003, and Ms. Sherwood's preliminary test results were normal.*fn60

Ms. Sherwood returned to Dr. DePhillips on October 16, 2003, after her lumber myelogram revealed a large herniated disc at the L2-3 level with severe compression of the cauda equina.*fn61 At this time, Ms. Sherwood also complained of some difficulty with bowel movements, and based on this difficulty, Dr. DePhillips recommended surgery.*fn62

On October 29, 2003, Dr. DePhillips performed a hemilaminotomy and discectomy on Ms. Sherwood's right side at the L2-3 level at Provena Saint Joseph's Medical Center.*fn63 There were no complications with the surgery, but Ms. Sherwood did experience leukocytosis after the procedure, which could have been caused by the stress of the surgery or a recent case of pneumonia.*fn64 After Ms. Sherwood underwent this operation, Dr. DePhillips referred her to Ottawa Hospital for physical therapy,*fn65 which she completed in the summer of 2004.*fn66 Dr. DePhillips' final diagnosis in his postoperative report was that Ms. Sherwood had degenerative fibrous tissue and nucleus pulpous at Disc L2-3.*fn67 Manual Corrales, M.D., completed an MRI of Ms. Sherwood's lumbar spine on April 6, 2004.*fn68 Dr. Corrales reported that there were postoperative changes at the L2-3 level without evidence of disc recurrence or thecal sac compression.*fn69 Dr. Corrales also noted that Ms. Sherwood still had mild spinal canal stenosis at L3-4 and L4-5 levels, which was unchanged from her exam on September 22, 2003, before her back surgery.*fn70

B. Medical Evidence from Workers' Compensation Claim

After Ms. Sherwood's back injury in September of 2003, she applied for and obtained Workers' Compensation benefits in 2003, and those benefits ended on June 19, 2006.*fn71 This section will summarize the medical evidence submitted in relation to her 2004 Workers' Compensation Claim.

Alexander J. Ghanayem, M.D., was appointed in relation to Ms. Sherwood's Worker's Compensation claim in 2004.*fn72 Due to Ms. Sherwood's inability to progress after her surgery and with physical treatment, Dr. Ghanayem evaluated Ms. Sherwood and completed an Independent Medical Examination.*fn73 After reviewing Ms. Sherwood's records and radiographs and examining her on April 15, 2004, Dr. Ghanayem found that the pain in Ms. Sherwood's legs had improved after her surgery, but her back pain remained persistent and disabling.*fn74 Dr. Ghanayem stated that Ms. Sherwood had attempted physical therapy, but had not progressed.*fn75 Dr. Ghanayem's impression was that Ms. Sherwood sustained a large disc herniation at L2-3 from her work related injury and that a smaller disk protrusion at L3-4 was probably pre-existing.*fn76 At this time, Dr. Ghanayem thought that Ms. Sherwood had ongoing diskogenic back pain and recommended a diskogram to determine if L2-3, as well as any other disc, may be contributing to her symptoms.*fn77 Additionally, he stated that at that time, Ms. Sherwood was unable to work.*fn78

On May 25, 2004, Eugene G. Lipov, M.D., performed a lumbar discography on Ms. Sherwood to address her lumbar discogenic pain.*fn79 Ms. Sherwood was referred to Dr. Lipov for this procedure by Dr. Ghanayem because Ms. Sherwood had intractable lower back pain.*fn80 The lumbar discography showed diffuse degeneration at the L2-3 level, L3-4 level, and L4-5 level.*fn81 Based on the results of the discography, Dr. Ghanayem determined that Ms. Sherwood had inflammation at the end plates of her vertebrae and instability in her spine, and he recommended that she either undergo another round of physical therapy or a spinal fusion.*fn82 Ms. Sherwood elected to undergo another round of physical therapy but, again, she was unable to progress due to increasing pain.*fn83

She returned to Dr. Ghanayem on September 1, 2004, and informed him that she still did not want to proceed with the spinal fusion.*fn84 Based on Ms. Sherwood's decision, Dr. Ghanayem ordered that a Functional Capacity Evaluation ("FCE") be performed.*fn85

On September 21, 2004, Debra W. Yirku, P.T., assessed Ms. Sherwood and completed a FCE.*fn86 The findings of Dr. Yirku's FCE report suggested the presence of near full, though not entirely full, effort on Ms. Sherwood's part.*fn87 This description of Ms. Sherwood's effort was not meant to imply intent, but rather stated that Ms. Sherwood could do more physically at times than she demonstrated during the testing day.*fn88 Regarding the reliability of these findings, Dr. Yirku stated that the test findings in combination with her clinical observations suggested a moderate question to be drawn as to the reliability and accuracy of Ms. Sherwood's subjective reports of pain and limitation.*fn89 Again, this description was not meant to imply intent but, rather, reflected the opinion that Ms. Sherwood could do more at times than she stated or perceived.*fn90

Regarding the reliability of pain reports, Dr. Yirku stated that five of seven Waddell signs were positive and that Ms. Sherwood responded positively to two of seven questions while completing the Waddell Inappropriate Symptom Questionnaire, which indicated inappropriate illness behavior.*fn91 Additionally, the results of the PACT Spinal Function Sort indicated that Ms. Sherwood's less than sedentary "Rating of Perceived Capacity" was reliable.*fn92

The FCE also included the following findings: (1) that Ms. Sherwood could tolerate thirty minutes of sitting, but would need to stand briefly for position change; (2) that Ms. Sherwood could tolerate twenty minutes of standing, but would need to sit briefly for position change; and (3) that ten minutes of walking was the longest duration that Ms. Sherwood could sustain.*fn93 Lastly, Dr. Yirku stated that due to Ms. Sherwood's lack of full effort, symptom magnification, and reliability issues, rehabilitation recommendations were difficult to provide.*fn94

After reviewing Dr. Yirku's FCE, Dr. Ghanayem determined that Ms. Sherwood may have limited functional capabilities, but that the FCE may not be valid in determining her maximum work level.*fn95 Regardless, Dr. Ghanayem stated that there were objective structural abnormalities that existed in her spine relative to her prior lower back injury and surgical intervention.*fn96 Based on this information, Dr. Ghanayem set Ms. Sherwood's functional capabilities at the ability to lift fifteen pounds from thigh to chest level on a regular basis and stated that she should be able to sit, stand, and move around throughout the course of the workday.*fn97 Dr. Ghanayem also stated that a target of an eight-hour workday, five days a week was a reasonable expectation for Ms. Sherwood.*fn98 He

further stated that at this time she was at Maximum Medical Improvement ("MMI") and required no further medical care.*fn99

On February 13, 2006, Ms. Sherwood visited Dr. Jones complaining of pain in her right hip and leg.*fn100 In describing Ms. Sherwood's symptoms, Dr. Jones noted that Ms. Sherwood could not use her right leg for driving, that she was not experiencing bowel or bladder issues, and that after being seated in a car for an hour, she was in severe pain.*fn101 At this time, Dr. Jones had prescribed to Ms. Sherwood Norco and Neurontin to treat her pain, and after this visit, she increased Ms. Sherwood's dosage of Neurontin.*fn102 Dr. Jones also advised Ms. Sherwood to obtain another MRI of her spine.*fn103

Dr. Dirmish completed this MRI of Ms. Sherwood's spine on February 17, 2006.*fn104 This MRI indicated that Ms. Sherwood was still experiencing mild lumbar scoliosis and moderate diffuse lumbar disc degeneration and bulging.*fn105 Dr. Dirmish also noted that Ms. Sherwood had mild L3-4 and L4-5 spinal canal narrowing and an annular tear of the posterior margin of the L3-4 intervertebral disc.*fn106

Ms. Sherwood returned to Dr. Ghanayem on March 29, 2006, to reconsider the spinal fusion surgery that he recommended earlier.*fn107 During this visit, new flexion and extension X-rays were taken of her back, which revealed that between full flexion and extension she went from five millimeters of subluxation to ten millimeters of subluxation at her operative level and that in the neutral position she was off by eight millimeters.*fn108 Based on these results, Dr. Ghanayem recommended that Ms. Sherwood undergo an anterior fusion through an anterolateral approach, considering how underweight she was at that time.*fn109

Ms. Sherwood stopped receiving Workers' Compensation benefits on June 19, 2006.*fn110

C. Medical Evidence Submitted for Disability Application

Ms. Sherwood applied for disability benefits on August 9, 2006, asserting that her disability began with her back injury on September 12, 2003.*fn111 Ms. Sherwood alleged that she was disabled due to her degenerative disc disease, lumbar discectomy, scoliosis, ectasia and spinal stenosis, and depression.*fn112 Additionally, Ms. Sherwood stated that she was disabled in part due to OCD, anxiety, and a personality disorder.*fn113

This section will summarize the medical evidence that was submitted for Ms. Sherwood's current disability application. The physicians included in this section are listed in chronological order based on the dates that their evaluations were completed with the exception of Dr. Jones. Dr. Jones was Ms. Sherwood's primary physician starting in 2002, and she completed a Multiple Impairment Questionnaire for Ms. Sherwood on May 13, 2009 and Psychiatric/Psychological Assessment on January 7, 2010.*fn114 Even though Dr. Jones submitted reports before 2006, she is listed last in this section because she submitted the last evaluations of Ms. Sherwood in relation to this disability application.*fn115

1. Phillip S. Budzenski, M.D.-State Agency Examining Physician

On December 6, 2006, Ms. Sherwood visited Phillip S. Budzenski, M.D., for a disability evaluation related to her degenerative disc disease and scoliosis.*fn116 Dr. Budzenski identified Ms. Sherwood's chief complaint as being degenerative disc disease and scoliosis.*fn117 At the time of her visit, Ms. Sherwood was taking Lodine, Norco, and Gabapentin.*fn118 Dr. Budzenski's final impressions of Ms. Sherwood were that she experienced scoliosis, anorexia, mood symptoms, and tobacco abuse.*fn119 In ...

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