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Jackson v. Colvin

United States District Court, Seventh Circuit

November 27, 2013

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


JOE B. McDADE, District Judge.

This matter is before the Court on Plaintiff's Motion for Summary Judgment and Defendant's Motion for Summary Affirmance.[1] (Docs. 14 & 19). For the reasons stated below, the Motion for Summary Judgment is denied, and the Motion for Summary Affirmance is granted.


To be entitled to disability benefits under the Social Security Act, a claimant must prove that she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 423(d)(1)(A). To determine if the claimant is unable to engage in any substantial gainful activity, the Commissioner of Social Security engages in a factual determination. See McNeil v. Califano, 614 F.2d 142, 143 (7th Cir. 1980). That factual determination is made by using a five-step sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; see also Maggard v. Apfel, 167 F.3d 376, 378 (7th Cir. 1999).

In the first step, a threshold determination is made to decide whether the claimant is presently involved in a substantially gainful activity. 20 C.F.R. §§ 404.1520(a)(i), 416.920(a)(i). If the claimant is not under such employment, the Commissioner of Social Security proceeds to the next step. At the second step, the Commissioner evaluates the severity and duration of the impairment. 20 C.F.R. §§ 404.1520(a)(iii), 416.920(a)(iii). If the claimant has an impairment that significantly limits her physical or mental ability to do basic work activities, the Commissioner will proceed to the next step. At the third step, the Commissioner compares the claimant's impairments to a list of impairments considered severe enough to preclude any gainful work; and, if the elements of one of the Listings are met or equaled, she declares the claimant eligible for benefits. 20 C.F.R. §§ 404.1520(a)(iv), 416.920(a)(iv); 20 C.F.R. Part 404, Subpart P, Appendix 1.

If the claimant does not qualify under one of the listed impairments, the Commissioner proceeds to the fourth and fifth steps. At the fourth step, the claimant's residual functional capacity ("RFC") is evaluated to determine whether the claimant can pursue her past work. 20 C.F.R. §§ 404.1520(a)(iv), 416.920(a)(iv). If she cannot, then, at step five, the Commissioner evaluates the claimant's ability to perform other work available in the economy. 20 C.F.R. §§ 404.1520(a)(v), 416.920(a)(v).

The claimant has the burden to prove disability through step four of the analysis, i.e., she must demonstrate an impairment that is of sufficient severity to preclude her from pursuing her past work. McNeil, 614 F.2d at 145. However, once the claimant shows an inability to perform her past work, the burden shifts to the Commissioner, at step five, to show the claimant is able to engage in some other type of substantial gainful employment. Id.

Once a case reaches a federal district court, the court's review is governed by 42 U.S.C. § 405(g), which provides, in relevant part, "The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Maggard, 167 F.3d at 379 ( quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In a substantial evidence determination, the Court will review the entire administrative record, but it will "not reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute [its] own judgment for that of the Commissioner." Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). The Court must ensure that the administrative law judge ("ALJ") "build[s] an accurate and logical bridge from the evidence to his conclusion, " even though he need not have addressed every piece of evidence. Id. at 872.


I. Procedural History

Plaintiff filed an application for disability benefits on July 1, 2009, alleging an onset of disability in May 2005, which she later amended to May 30, 2009. (Tr. 43-44, 193-202).[2] Her claim was denied. (Tr. 143-49). Plaintiff requested a hearing, which was held on May 4, 2011. (Tr. 38, 162). Following the ALJ's May 27, 2011 decision denying benefits, Plaintiff filed a request for review by the Appeals Council, which was denied on June 27, 2012. (Tr. 1). Plaintiff then filed the instant action on August 13, 2012 pursuant to 42 U.S.C. § 405(g). (Doc. 1).

II. Relevant Medical History[3]

Plaintiff alleges a disability onset date of May 30, 2009, so the period at issue is the time from May 30, 2009 to June 27, 2012. The Court thus primarily considers the medical history from that period, though a few earlier records are relevant for context and because they were cited by the ALJ.

In May 2005, Plaintiff was diagnosed with spina bifida occulta[4] by Dr. Rita Hungate. (Tr. 1219). Plaintiff visited the emergency department in April 2007, complaining of a sore throat over the last two days. She was discharged a short time later with a prescription for antibiotics. (Tr. 836-37). In September 2007, Plaintiff went to the emergency department after straining her back picking up her grandson. At that time, she was employed and was able to walk without difficulty. She was discharged after receiving an intramuscular injection of a pain reliever. (Tr. 846-49).

In March 2009, Plaintiff saw Dr. Agarwal with hypertension, low back pain, and bilateral knee pain. (Tr. 938). Dr. Agarwal addressed Plaintiff's continued hypertension with medication, with which she was compliant; he also instructed her to lose weight and improve her diet. He noted the earlier x-ray showing spina bifida occulta, and ordered a new x-ray of Plaintiff's lumbar spine; Plaintiff reported losing her balance occasionally. Related to her knee pain, Dr. Agarwal indicated that Plaintiff had "very poor compliance with physical therapy" and refused a steroid injection. (Tr. 938). The lumbar spine x-ray was taken in March 2009, and the radiologist found mild degenerative changes. (Tr. 465). Compared the results to a scan taken in March 2006, he found no change. (Tr. 465). Also in March 2009, Plaintiff had a scan of her knee, which revealed some progress of Plaintiff's arthritis and degenerative-related tearing of her medial meniscus. (Tr. 466-69).

Plaintiff had a spinal x-ray in June 2009, and the radiologist found no disc herniation or spinal stenosis, and some degenerative changes. (Tr. 956-57). In June 2009, Plaintiff reported to Dr. Agarwal for follow-up after a motor vehicle accident a few days prior. (Tr. 936). Dr. Agarwal reported that X-rays at the time of the accident showed some arthritic changes in her lumbar spine, and the radiology report indicated mild scoliosis and sclerosis, with no acute abnormalities. (Tr. 923, 936). The x-ray of Plaintiff's cervical spine was normal. (Tr. 922). Dr. Agarwal concluded that Plaintiff's acute lower back pain was due to the accident, prescribed muscle relaxers, and referred her for physical therapy. He also noted her chronic left knee pain; he planned a referral to another doctor, and offered steroid injections as an alternative, which Plaintiff refused. (Tr. 936). On June 29, 2009, Plaintiff returned to Dr. Agarwal with depression, lower back pain, and bilateral knee pain. (Tr. 935). She felt severely depressed, but was not actively suicidal, though she was sad and overwhelmed with problems. Plaintiff reported to Dr. Agarwal that she could not work and wanted disability benefits and a medical card. Dr. Agarwal continued Plaintiff's medications; Plaintiff refused the recommended injections for her knee pain, and Dr. Agarwal referred her for physical therapy. (Tr. 935).

Plaintiff reported to the emergency room on July 7, 2009, stating that she felt she could commit suicide due to an increase in stress at home, though she did not have a plan for suicide and did not think she would go through with it. (Tr. 670). She was admitted to the psychiatric unit of the hospital. (Tr. 675). On July 8, Plaintiff saw Dr. Karen Kyle, who found that Plaintiff was depressed and prescribed an antidepressant and recommended counseling. (Tr. 663-65, 1059-60). Dr. Kyle noted that Plaintiff had a prescription for a different antidepressant, but that she had not been taking it; she also had been seeing a counselor, but didn't believe it was helpful because the counselor could not help her with her problems. (Tr. 664, 1060). She also noted that Plaintiff had several stressors in her life, which led to the breakdown at her doctor's office that precipitated the emergency room visit. (Tr. 663). Dr. Kyle referred Plaintiff to Dr. Erich Acebedo for medical management, who saw her on July 9, 2009. (Tr. 667-68). Other than her injuries from the motor vehicle accident, Plaintiff reported that she had no active medical issues. (Tr. 667). Dr. Acebedo's significant findings were asthma and hyptertension. (Tr. 668).

Plaintiff began physical therapy on July 14, 2009, following the June motor vehicle accident; the physical therapy continued until September 11, 2009. (Tr. 303-49, 1112-62). At the end of the physical therapy, Plaintiff's score on the "Modified Oswestry Low Back Pain Questionnaire" was 56%, which is correlated with "severe disability."[5] (Tr. 312-13, 1123-24). Plaintiff saw Dr. Agarwal in September 2009; he reported that she was stable on her medications, and was scheduled to see a counselor. (Tr. 1035).

Dr. Alan Jacobs, PhD, conducted a psychological evaluation of Plaintiff on September 29, 2009. (Tr. 982-84). He concluded that though she had a history of post-traumatic stress disorder, her symptoms of it were vague, and she exaggerated mildly, having both histrionic and borderline tendencies. Dr. Jacobs did not believe that Plaintiff was depressive or a suicide risk, and found her long term memory to be essentially good, and that her short-term memory was mildly impaired. He concluded that she would likely test within the upper borderline range of intellectual functioning. (Tr. 984).

On that same day, Dr. James Ausfahl evaluated Plaintiff's physical abilities. (Tr. 1013-17). He reviewed records from Dr. Agarwal, two MRIs and a CT, took Plaintiff's history, and performed a physical examination. (Tr. 1013). Plaintiff self-reported a history of sickle cell trait.[6] He found that Plaintiff needed no assistive devices; had only mild problems with getting on and off the exam table, tandem walking, and squatting; and had severe knee pain when attempting to walk on her toes and heels. (Tr. 1016).

In October 2009, Dr. Lenore Gonzalez, a consultative physician, assessed Plaintiff's physical RFC based on a March 31, 2009 MRI of Plaintiff's left knee, a June 5, 2009 CT scan of Plaintiff's head, a June 16, 2009 MRI of Plaintiff's spine, and a September 29, 2009 physical exam. (Tr. 999-1006). She found that Plaintiff had the ability to occasionally lift or carry 20 pounds, frequently lift or carry 10 pounds, stand or walk about 6 hours in a workday, sit for about 6 hours in a workday, and push or pull the same weights she could lift or carry. She also found that Plaintiff could occasionally climb ramps, and stairs; could never climb ladders, ropes, or scaffolds; and could occasionally balance, stoop, kneel, crouch, and crawl. She found that Plaintiff had no manipulative, visual, or communicative limitations. In consideration of Plaintiff's pain, Dr. Gonzalez found that Plaintiff should avoid concentrated exposure to extreme cold, and determined that she should avoid concentrated exposure to extreme heat, humidity, fumes, odors, dusts, gases, and poor ventilation in order to avoid aggravating her asthma. Dr. Gonzalez also determined that Plaintiff should avoid concentrated exposure to unprotected hazards. (Tr. 999-1003).

Dr. Gonzalez reviewed Plaintiff's allegations and statements regarding her abilities and activities, and determined that her allegations were only partially credible. (Tr. 1004). She noted that there was no statement from a medical source regarding Plaintiff's physical abilities. (Tr. 1005). Summarizing Plaintiff's condition, Dr. Gonzalez noted her elevated blood pressure, but found that there were no signs of significant end-organ involvement as a result. Similarly, she noted that neither Plaintiff's asthma nor her sickle cell trait produced any limitations. She acknowledged Plaintiff's obesity, pain, and limited range of motion, but believed that Plaintiff's allegations concerning her activities of daily living were only partially credible. She concluded that Plaintiff was capable of light unskilled work activity.

Also in October 2009, Dr. Leslie Fyans completed a Psychiatric Review Technique and a Mental RFC assessment of Plaintiff. (Tr. 985-98, 1007-09). In the Psychiatric Review, Dr. Fyans found that Plaintiff exhibited signs of anxiety and post-traumatic stress disorder, but that her mental status examination was within normal limits. (Tr. 990). She noted Plaintiff's past diagnosis of depression, but also a Dr. Jacobs' September 2009 Mental Status Exam showing no apparent depression. (Tr. 997). She also found that Plaintiff had a personality disorder. (Tr. 992). Dr. Fyans also evaluated Plaintiff under the "paragraph B" criteria of Listings 12.02-12.04, 12.06-12.08, and 12.10, finding that Plaintiff had mild limitations in activities of daily living and maintaining concentration, persistence, and pace, and moderate difficulties in maintaining social functioning. (Tr. 995). Reviewing's Plaintiff's self-reported activities of daily living, she found that Plaintiff's allegations were "mostly credible." (Tr. 997). In the Mental RFC assessment, Dr. Fyans concluded that Plaintiff was only moderately limited in her ability to understand and remember detailed instructions and to carry out detailed instructions; Plaintiff had no other significant limitations. (Tr. 1007-08). Dr. Fyans specifically considered Plaintiff's complaints of anxiety disorder, but found that she was functioning adequately, and was within normal limits. (Tr. 1009). In this assessment, Dr. Fyans determined that Plaintiff was only "partially credible." (Tr. 1009). She found that Plaintiff was affected by histrionic and borderline personality disorder, and thus should be limited to a socially restricted setting with a moderate level of social expectations. (Tr. 1009).

On October 27, 2009, Plaintiff again saw Dr. Agarwal for a checkup, complaining of increased joint pain. (Tr. 1033). Dr. Agarwal reported that at every appointment, Plaintiff complained that he did not write enough in her records for her to get disability benefits. (Tr. 1033). Plaintiff went to the emergency department in November 2009 with "moderate, but tolerable" lower back pain; a CT scan was ordered and she was discharged with medication later that night. (Tr. 1041-42, 1181-87). Plaintiff reported to the emergency department in December 2009 with a cough and abdominal pain, and was discharged later that same day. (Tr. 1167-73). Dr. Agarwal saw Plaintiff in April 2010 for back pain and bilateral hip pain, which he treated with medication. (Tr. 1229).

In May of 2010, a state agency physician, Dr. Sandra Bilinsky, and a psychiatric consultant, Dr. Joseph Mehr, reviewed Plaintiff's October 2009 RFC assessments in light of Plaintiff's complaints of worsening arthritis. (Tr. 1210-12). Reviewing additional medical records, these consultants affirmed the October 2009 finding that Plaintiff was capable of unskilled light work. (Tr. 1212).

Due to shoulder pain, Plaintiff had an x-ray on June 8, 2010, which showed no bone or joint abnormality. (Tr. 1238). On June 18, 2010, Plaintiff again saw Dr. Agarwal, complaining of left arm pain, bilateral knee pain, and depression. (Tr. 1227). As for Plaintiff's bilateral knee pain, Dr. Agarwal recommended that Plaintiff continue with her current medication and physical therapy, and that she lose weight. He also offered injections, but she refused. (Tr. 1227). Plaintiff reported that she could not afford her depression medication, so Dr. Agarwal changed her prescription to a different drug and offered counseling. (Tr. 1227). In July 2010, Plaintiff went back to Dr. Agarwal with neck pain and upper back pain; he reported that she had generalized arthritis but had declined to pursue treatment at the pain clinic or injections. (Tr. 1226). At that appointment, Dr. Agarwal ordered an x-ray of Plaintiff's thoracic spine, which showed mild degenerative changes. (Tr. 1226, 1234). She also had an electrophysiological study that month, which showed no evidence of carpal tunnel, cubital tunnel, or cervical radiculopathy. (Tr. 1235).

On August 3, 2010, Plaintiff saw Dr. Agarwal; she was "really upset that back x-ray only showed mild arthritic changes, " and asked him to order an MRI. (Tr. 1225). Dr. Agarwal advised continuing her current medications and exercises, and to try to lose weight. (Tr. 1225). Plaintiff's depression had also increased, aggravated by her son being shot. (Tr. 1225). Plaintiff also reported that her counselor was not very helpful, and wanted another counselor. Plaintiff saw Dr. Agarwal on September 2, 2010, complaining of upper back pain. (Tr. 1224). Dr. Agarwal noted that her x-rays showed mild arthritic changes, and referred her to a spine specialist at her request. (Tr. 1224). She also had an MRI of her cervical spine in September 2010, which showed mild disc dislocation and degenerative changes. (Tr. 1233).

In October 2010, Plaintiff complained to Dr. Agarwal of residual neck pain from the earlier motor vehicle accident, so he referred her again to physical therapy. (Tr. 1223). Plaintiff began physical therapy on October 25, 2010. (Tr. 350-91, 1245-84). On December 7, 2010, the physical therapist noted that Plaintiff's mobility had improved, but that her perception of pain had not changed. (Tr. 373). On January 18, 2011, Plaintiff reported that she was "ready to be done [with] therapy" because she was having transportation problems. (Tr. 387). Plaintiff was discharged from physical therapy on February 26, 2011, after cancelling all of her appointments. (Tr. 353).

Plaintiff went back to Dr. Agarwal on January 5, 2011, with increasing neck pain. (Tr. 1221). She did not believe her physical therapy was helping. Dr. Agarwal opined that her neck pain was caused by degenerative disc disease. He noted that Plaintiff was "very scared of interventional procedures" and avoids injection treatments, and was also hesitant to seek help from the pain clinic. (Tr. 1221). Dr. Agarwal again offered injection treatments, but Plaintiff refused; he also advised her to lose weight. (Tr. 1220).

Plaintiff went to the emergency department in March 2011 with a sore throat, and was prescribed medication before her discharge the same day. (Tr. 1286-89). While at the hospital, Plaintiff had an x-ray, which showed mild degenerative changes in her thoracic spine and mild interstitial scarring. (Tr. 1295). Plaintiff saw Dr. Agarwal on March 22, 2011 with fatigue and chronic pain syndrome. (Tr. 1220). Dr. Agarwal noted Plaintiff's past history of anemia and hypothyroidism, as well ...

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