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Maziarka v. Colvin

United States District Court, N.D. Illinois, Eastern Division

November 20, 2013

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

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[Copyrighted Material Omitted]

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For Joseph Peter Maziarka, Plaintiff: Perry S. Smith, Jr., LEAD ATTORNEY, Wysocki & Smith, Waukegan, IL.

For Michael J Astrue, Commissioner of Social Security, Defendant: Kurt N. Lindland, LEAD ATTORNEY, SSA, United States Attorney's Office (NDIL), Chicago, IL.

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Rubén Castillo, Chief United States District Judge.

Joseph Maziarka (" Plaintiff" ) brings this action pursuant to the Social Security Act (the " Act" ), 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration (the " Commissioner" )[1] denying Plaintiff's applications for Title XVI Supplemental Security Income (" SSI" ) and Title II Disability Insurance Benefits. Plaintiff requests that the decision of the Administrative Law Judge (" ALJ" ) be set aside or, in the alternative, that the matter be reversed and remanded for further proceedings. Presently before the Court is the Commissioner's motion for summary judgment. For the reasons set forth below, the Court denies the Commissioner's motion for summary judgment and remands this case for further proceedings consistent with this opinion.


Plaintiff was born on March 25, 1981, and resides in Round Lake, Illinois. (A.R. 71, 136.) His employment history includes working as a technician with Jiffy Lube, and most recently as an installer for a glass company. (A.R. 153; R. 11, Pl.'s Br. at 2.) Plaintiff was last insured on March 31, 2008. (A.R. 75.) On May 14, 2011, Plaintiff applied for SSI and disability benefits. (A.R. 13.) These claims were denied on September 2, 2010. ( Id. ) Plaintiff filed for reconsideration on October 8, 2010, but his request was denied on November 12, 2010. (R. 11, Pl.'s Br. at 1.) Plaintiff subsequently requested a hearing before an ALJ on November 17, 2010. (A.R. 92.) The hearing was held on August 30, 2011, in Evanston, Illinois. (A.R. 96, 102.) On September 20, 2012, the ALJ issued an opinion denying Plaintiff's claim

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for SSI benefits and disability benefits. (A.R. 14.)

Plaintiff suffers from several medical issues, including degenerative disk disease, lower back pain, numbness in his legs, and anxiety. (A.R. 245-46, 254.) Plaintiff's relevant medical history begins just after a work-related accident on December 6, 2002. (A.R. 245.) Plaintiff, who worked for a glass company at the time, was carrying a 130-inch mirror up a winding staircase with a coworker. ( Id. ) The mirror, which weighed approximately 170 pounds, got caught on the railing. ( Id. ) Plaintiff had to stretch and twist his body in order to lift the mirror over the railing and, in doing so, heard three pops in his lower back. ( Id. ) He experienced immediate pain in his back and lower legs. ( Id. ) After this incident, Plaintiff tried to continue working with light duty restrictions, but he was fired three weeks after the incident due to his inability to engage in heavy lifting or work for extended periods without taking breaks. ( Id. )

Plaintiff was subsequently diagnosed with degenerative disk disease and a herniated nucleus pulposus.[3] (A.R. 254.) He has undergone two significant surgeries, a variety of outpatient procedures, and cortisone injections in attempts to correct his condition. (A.R. 267-68, 328-62.) Plaintiff alleges that he is unable to work due to symptoms related to his condition, including pain and discomfort, numbness, and problems walking long distances and sitting for extended periods. (A.R. 246.) Plaintiff also alleges that he suffers from anxiety related to his pain, which impacts his day-to-day life. (A.R. 401.)

I. Medical Evidence of Physical Impairment

The administrative record contains no direct evidence of the medical attention Plaintiff sought from the date of his injury until December 30, 2004, when Plaintiff had a consultation with Dr. Jay Levin. ( Id. ) Dr. Levin transcribed the medical treatment that Plaintiff reported he received in the intervening period of time since his injury. ( Id. ) Plaintiff had sought treatment for a range of symptoms related to his injury, including pain in his lower back, buttocks, calves, and thighs. (A.R. 245-46.)

A. Treating Physicians' Records

At the consultation, Plaintiff complained of consistent numbness in his feet and told Dr. Levin that he always felt cold. ( Id. ) Plaintiff reported having difficulty walking for longer than ten minutes, standing for extended periods, and lifting objects such as a gallon of milk. (A.R. 246.) Dr. Levin ordered an MRI in January 2005, which revealed degenerative changes at Plaintiff's L3-L4 and L4-L5 disks and a significant left L3-L4 bulge that Dr. Levin concluded was a herniation. (A.R. 248.) In addition, there was a small right L4-L5 disk herniation. ( Id. ) Plaintiff began physical therapy and received cortisone injections, but his condition failed to improve. (A.R. 248-52.) After a Somatosenory Evoked Potential (" SSEP" ) exam in June 2005, Dr. Levin opined that Plaintiff was suffering from a right and central herniated nucleus pulposus. (A.R. 254.) On August 30, 2005, Plaintiff underwent his first surgery for his condition, a left L3-L4 decompressive laminectomy [4] and right

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L4-L5 hemilaminotomy and microdiscectomy. (A.R. 240.)

Plaintiff initially experienced relief after his surgery, but his lower back pain and numbness in his calves soon returned. (A.R. 261-67.) Over the course of the next year, Plaintiff continued physical therapy and cortisone injections, but his pain and discomfort worsened. ( Id. ) Dr. Levin identified a central recurrent disk herniation in February 2006. (A.R. 269.) On July 18, 2006, Plaintiff had his second surgery, an L3-L4 decompressive laminectomy and fusion at the L3-L4 and L4-L5 disks. (A.R. 244.) Unfortunately, Plaintiff continued to report constant pain and soreness in his lower back and numbness in his calves. (A.R. 461-70.) In August 2006, Plaintiff underwent a lumbar decompression and fusion of the L3-L4, and L4-L5 disks. (A.R. 291.) Dr. Levin continued to find evidence of spinal stenosis and recurrent herniation at the L4-L5 disks. (A.R. 293.)

Treatment records kept by Dr. Quinn Regan, Plaintiff's treating orthopedic surgeon, indicate improvement of Plaintiff's disk irregularities over time but little improvement in terms of Plaintiff's subjective pain levels. (A.R. 334.) In February 2006, Dr. Regan noted prominent broad-based bulging of the L4-L5 disks. (A.R. 340.) In December 2006, Dr. Regan noted improvement and an absence of herniation or spinal stenosis.[5] (A.R. 334-35.) In August 2007, Dr. Regan observed a moderate increased right paracentral disk protrusion. (A.R. 330.)

On November 30, 2007, Dr. Yuriy Bukhalo performed a radiofrequency ablation of the L2, L3 and L5 disks. (A.R. 279.) The procedure was performed again one week later on December 6, 2007. (R. 11, Pl.'s Br. at 7.) On March 20, 2008, Dr. Regan's treatment records noted that Plaintiff could return to medium-level work lifting fifty pounds on a regular basis. (A.R. 348.) Nearly two years later, on June 24, 2010, Dr. Regan noted that despite Plaintiff's complaints of lower back and leg pain, his gait was normal and that he could perform lateral bends of five degrees in both directions. Dr. Regan recommended that Plaintiff " keep as active as possible." (A.R. 347.)

Plaintiff saw Dr. Richard Margolin of the Waukegan Clinic Corporation three times between August and October of 2010. (A.R. 391-99.) Plaintiff continued to report pain in his back and worsening pain and numbness in his legs. (A.R. 393, 398.) Dr. Margolin noted limited rotation of the lumbar spine and limited ability to bend sideways. (A.R. 394.) In one incident in 2010, Plaintiff reached for a box in his closet and experienced immediate pain and spasms in his back. (A.R. 396.) This incident caused ongoing back spasms and increased pain levels. (A.R. 396, 399.) Dr. Margolin's assessment was that Plaintiff suffered from degenerative disk disease, and he ordered radiologic imaging that is not included in the record. (A.R. 394, 399.)

B. Physical Therapy Reports

Plaintiff underwent physical therapy at Sports Physical Therapy & Rehab Specialists from October 2006 to February 2007. (A.R. 459-511.) In November 2006, three months after his lumbar decompression and fusion at the L3-L4 and L4-L5 disks, Plaintiff reported feeling stronger, and his physical therapist noted that Plaintiff was slowly progressing. (A.R. 477.) Over the

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following months, however, Plaintiff's pain worsened, and the numbness and burning sensation in his legs and buttocks returned. (A.R. 488, 499.)

C. Melrose Park Clinic's and Stroger Hospital's Records

The record on appeal contains approximately one hundred pages of documentation from Melrose Park Clinic (the " Clinic" ), where Plaintiff received assessments, evaluations and medication for managing pain between May 2004 and March 2011. (A.R. 519-647.) It appears that Plaintiff was treated by Dr. Paul Madison during at least the latter part of his time at the Clinic. (A.R. 613-46.) While receiving treatment at the Clinic, Plaintiff twice reported a pain level of six, but his pain level was generally between a three and a four. (A.R 560-611.) On October 26, 2010, however, Plaintiff reported a pain level of eight resulting from constant lower back pain and anxiety. (A.R. 609.)

Plaintiff visited Stroger Hospital on January 21, 2011, and February 18, 2011, upon referrals from the Clinic. (R. 11, Pl.'s Br. at 9; A.R. 512-18.) Dr. Diane Sierens ordered an MRI of the lumbar spine on January 21, 2011. (A.R. 514.) The MRI results revealed that Plaintiff suffered from multilevel degenerative disk disease and failed back surgery syndrome and that he was " completely disabled." (A.R. 514-15.) On March 18, 2011, Dr. Madison corroborated Stroger Hospital's finding that Plaintiff suffered from failed back surgery syndrome. (A.R. 618.)

D. Disability Determination Service Assessment

The Disability Determination Service (" DDS" ) conducted a Residual Functional Capacity (" RFC" ) Assessment in August 2010 and concluded that Plaintiff's statements of his own limitations seem " somewhat excessive when compared to the medical evidence." (A.R. 433.) DDS concluded that Plaintiff could occasionally lift twenty pounds and frequently lift ten pounds. (A.R. 432-33.) It also concluded that he was able to stand or walk, with normal breaks, for six hours in an eight-hour work day. ( Id. ) DDS refused to adopt Dr. Regan's assessment that Plaintiff could return to medium-level work, however, because it ...

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