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Annie R. Lang v. Michael J. Astrue

December 10, 2012


The opinion of the court was delivered by: Magistrate Judge Arlander Keys


This case is before the Court on Annie Lang's motion for summary judgment. She seeks a remand or an outright reversal of the Commissioner's decision to deny her application for Disability Insurance Benefits and Supplemental Security Income. For the reasons explained below, her motion is granted and the case is remanded to the Commissioner for further proceedings.

Background & Procedural History

On February 29, 2008, plaintiff Annie R. Lang applied for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"), alleging that she became disabled as of October 5, 2004 because of back and neck pain. Her application was denied initially and upon reconsideration. Ms. Lang requested a hearing before an administrative law judge, and the case was assigned to ALJ Jose Anglada, who held the requested hearing on May 18, 2010.

At the hearing before the ALJ, Ms. Lang appeared, represented by counsel. She testified that she was born on April 27, 1944, making her 66 years old at the time of the hearing. Record at 37. She testified that she was divorced and lived in her own home, with her daughter and her four grandchildren, ages 11, 14, 17 and 20. Record at 38-39. She testified that she lives on her CNA pension, which is about $218/month, and social security income, which is about $1,035/month (gross). Record at 39-40.

With regard to her work history, Ms. Lang testified that she worked for CNA Insurance Company for nine years, until 1995, when the company laid her off. Record at 40-41. At CNA she served as a licensing clerk. She testified that, after she got laid off from CNA, she went to college and earned a bachelor's degree in sociology. Record at 40-41, 74-75. She testified that she also worked at the University of Illinois, in an outreach program to assist the parents of disabled students. Record at 43-44.

Ms. Lang testified that she hurt her back while working at the University of Illinois outreach program job, and was forced to quit because she could no longer do the work. Record at 45-46. She testified that she then worked for Public Storage, but that she was involved in a car accident in November of 2004, which aggravated her back injury and left her unable to do that job as well. Record at 45. She testified that, after the accident, she did not go back to work; she tried briefly but was unable to do the work so she quit. Record at 49.

Ms. Lang testified that, after her car accident, she had a lot of pain in her face, neck, back, lower back and legs. Record at 51. She testified that her doctor prescribed pain medication, which helped. Record at 51. She testified that, over time, her medication was "reduced" and that she now takes Tramadol and Naprosen. Record at 53. She testified that her primary care physician, osteopath Jason Smith, treated her after the accident, and that she sees him regularly, about once a month. Record at 50, 56, 58. She testified that, right after the accident, she saw Dr. Smith several times a week. Record at 66. She testified that Dr. Smith referred her to an orthopedic surgeon, Dr. Charles Slack, who recommended that she have surgery; she declined to do so. Record at 57. Instead, she pursued steroid injections, physical therapy, massage and heat treatments. Record at 57-58.

Ms. Lang testified that she is generally able to manage with her prescribed medication, and that her medication gives her "a little relief". Record at 59-60. But, she testified, sometimes (especially when it's very cold out) her pain gets so bad she can barely get out of bed, then she goes to get "a shot of something." Record at 59. She testified that her medication sometimes makes her dizzy and gives her stomach pains; otherwise, there are no side effects from her medication. Record at 60.

With regard to her daily routine and abilities, Ms. Lang testified that she typically gets up about 6:30 in the morning, takes care of her "bodily needs" and then gets back into bed. Record at 60. She testified that she gets up again about 9 or 9:30 a.m., fixes something to eat and takes her medication. Record at 61. She testified that she cooks one or two meals a day, quick easy meals like boiled chicken or noodles. Record at 61. She testified that she is unable to do many of her household chores, maybe washes a few dishes and does some laundry -- with assistance from her grandchildren, who carry the laundry up and down the stairs for her. Record at 61-62. She testified that she will sometimes make her bed, but that her grandchildren do the cleaning around the house. Record at 62. Ms. Lang is able to drive; indeed, she testified that she drove herself to the hearing. Record at 37-38. She testified that she spends "quite a bit" of time in bed each day and lies down four or five times a day for 30 to 90 minutes at a time. Record at 62-63, 67. She testified that lying down helps get "the weight off" her legs, back and neck. Record at 67.

Ms. Lang testified that she also gets headaches every day, sometimes they cause sharp pain and sometimes they cause dull pain. Record at 67. She testified that the pain makes it hard for her to concentrate and focus. Record at 68. She testified that she goes to bed for the night about 10:00 p.m. Record at 63. She testified that she takes Tramadol at night so that she can "really rest" and, if her pain is especially bad during the day, she takes Naprosen. Record at 63.

With regard to her limitations, Ms. Lang testified that she can carry, at the most, two to four pounds, she can walk about two blocks at a time and can sit for about 35 to 45 minutes at a time. Record at 64. She testified that she mostly just watches tv, listens to music and reads. Record at 64. She testified that she sometimes goes out to eat or to the movies with her family. Record at 64-65.

The ALJ also heard testimony from Glee Ann Kehr, a Vocational Expert who had reviewed Ms. Lang's work record and her exhibit file and heard Ms. Lang's testimony before the ALJ. After asking some clarifying questions, the VE determined that Ms. Lang's job with CNA involved mostly sitting at a desk and handling paperwork; she testified that a hypothetical person with limitations similar to those experienced by Ms. Lang would still be able to perform the licensing clerk job -- at least as Ms. Lang performed the job (i.e., with the ability to sit or stand). Record at 76-77. The VE testified, however, that if Ms. Lang were required to take rest breaks during the day that caused her to be "off-task" then she would be unemployable. Record at 77. The VE also testified that, if the hypothetical person were limited in the bilateral use of her hands, fingers and arms for grasping, fine manipulations and reaching, then her past work would be precluded. Record at 80. The VE also testified that, if the January 26, 2010 report from Dr. Jason Smith were accepted as true (that is, if attention and concentration were impaired on a frequent basis, with frequent defined as 34 to 66 percent of the time), then competitive employment would similarly be precluded. Record at 82. The VE also testified that, if Ms. Lang were required to be absent from work four days per month -- or anything more than one day per month -- then employment would be precluded. Record at 82.

In addition to the testimony of Ms. Lang and the VE, the record before the ALJ also includes an abundance of medical records. Though Ms. Lang claims a disability onset date of October 2004, the record makes clear that she suffered from back and neck pain long before that. Ms. Lang had a comprehensive physical examination on August 7, 2001; at that time, she was 5'4" tall and weighed 200 lbs. Record at 352. She completed a "well-being chart," checking boxes to identify her symptoms; she checked irritability, restlessness, sweating, dizziness/light headedness, insomnia/trouble sleeping, fatigue-lack of energy, weakness, sleeping too much, seeing or hearing things that are not real, eye pain, sinus pain, chest discomfort, heartburn, nasal congestion, hay fever, and shortness of breath. Record at 347. To address some of these concerns, it was recommended that she undergo a sleep study and that she make some changes in her diet. Record at 353. X-rays and scans taken that same day (August 7, 2001) indicate no fractures or dislocations in the temporomandibular joints and "minimal degenerative change of the thoracic spine" but "extensive degenerative changes of the cervical spine from C4 to C7; more specifically, the report notes that there "is a narrowing of the intervertebral disc spaces from C4 to C7 with large, osteophytes along the vertebrae at these levels. There is encroachment of the foramina at C5-C6 and C6-C7. No fracture line of dislocation is seen." Record at 304. Facet joints were normal. Record at 304.

The record also includes treatment notes and records from Dr. Jason Smith, Ms. Lang's treating osteopath and physical therapist. These records show that, after her examination in August of 2001, Ms. Lang was prescribed and sought physical therapy with Dr. Smith to address pain and spasms she was having in her back and neck; she had sessions on August 14, 16, 21, 23, and 30, and on September 6, 2001, with noted improvement on the 23rd and the 30th. Record at 354-355. Dr. Smith also recommended that she do a sleep study, which she did on October 12, 2001. Record at 356-359.

She saw Dr. Smith again on November 7, 2001 and November 15, 2001. Record at 360. She saw him again on February 25, 2002, complaining of pain and discomfort at work; she reported that she was currently off work for physical therapy. Record at 382. On examination, her straight leg raising was within normal limits; her paravertebral and flank muscle mass was "spastic and tender to light palpation." Record at 382. She saw Dr. Smith regularly, with several sessions each month from February 25, 2002 through May 30, 2002. Record at 382-385, 387-397.

On July 26, 2002, Dr. Smith recommended that she continue with therapy two times per week for the next four weeks. Record at 365. She did that and more -- her records show sessions from July 29, 2002 through May 6, 2003. Record at 398-428. Though Ms. Lang had therapy several times each month, there is never really any indication in the progress notes that the sessions were doing much good in terms of the overall stated goal of decreasing pain and increasing functioning. At times -- for example, throughout September, October and November of 2002 -- progress notes indicate that Ms. Lang "continues to improve"; but those same notes also indicate that "spasms and distress [are] still present." Record at 403-411. Nor is there any indication that her course of treatment is coming to any sort of conclusion; after each session, her therapist simply recommends "continued therapy."

On April 30, 2002, Dr. Smith completed an FMLA form for Ms. Lang, noting that she was "presently disabled" and that it was difficult to say how long her disability would last; he noted that her condition was "chronic" and that her care was dependent upon "her functional reserves and capacity to sustain a normal work routine." Record at 377. He completed another form the next month, indicating that Ms. Lang was still disabled and likely to remain so for another 4 to 6 weeks. Record at 379.

On May 9, 2002, Dr. Charles Slack, of Midwest Orthopaedics, ordered a lumbar MRI for Ms. Lang. Record at 368. She had the MRI on May 22, 2002; it revealed straightening of the normal lumbar lordosis. No significant stenosis at the L1-2 or L2-3 levels. At L3-4, there is mild disk bulge with facet arthritis and ligamentum hypertrophy causing minimal narrowing of the neural foramen. There is a small amount of fluid within the facet joints. At L4-5, there is broad based disk bulge with more focal protrusion left laterally. There is facet arthritis and ligamentum hypertrophy causing moderate degree of canal stenosis with bilateral neural foraminal stenoses. There is a moderate amount of fluid within the facet joints. At L5-S1, there is a broad based disk bulge, slightly greater left of midline. There is mild facet arthritis and ligamentum hypertrophy. There is minimal narrowing of the neural foramen, left greater than right.

Record at 375, 456. On June 5, 2002, Dr. Slack wrote a prescription for her to obtain a lumbar epidural steroid injection. Record at 305. Dr. Slack opined that, at least during the months of May through November, 2002, Ms. Lang ...

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