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Martinez v. Colvin

United States District Court, Seventh Circuit

December 18, 2013

CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.


MARY M. ROWLAND, Magistrate Judge.

Plaintiff Esmeralda Martinez filed this action seeking review of the final decision of the Commissioner of Social Security (Commissioner) denying her applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act (SSA). 42 U.S.C. §§ 216(i), 223(d), 1614(a)(3)(A). The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c), and filed cross motions for summary judgment. For the reasons stated below, the Commissioner's decision is affirmed.


To recover DIB or SSI, a claimant must establish that he or she is disabled within the meaning of the SSA.[2] York v. Massanari, 155 F.Supp.2d 973, 977 (N.D. Ill. 2001). A person is disabled if he or she is unable to perform "any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. §§ 404.1505(a), 416.905(a). In determining whether a claimant suffers from a disability, the Commissioner conducts a standard five-step inquiry:

1. Is the claimant presently unemployed?
2. Does the claimant have a severe medically determinable physical or mental impairment that interferes with basic work-related activities and is expected to last at least 12 months?
3. Does the impairment meet or equal one of a list of specific impairments enumerated in the regulations?
4. Is the claimant unable to perform his or her former occupation?
5. Is the claimant unable to perform any other work?

20 C.F.R. §§ 404.1509, 404.1520, 416.909, 416.920; see Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). "An affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than Step 3, ends the inquiry and leads to a determination that a claimant is not disabled." Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985). "The burden of proof is on the claimant through step four; only at step five does the burden shift to the Commissioner." Clifford, 227 F.3d at 868.


Plaintiff applied for DIB and SSI on March 17, 2006, alleging that she became disabled on September 16, 2005, due to lower back pain. (R. at 113, 149). The application was denied initially and on reconsideration, after which Plaintiff filed a timely request for a hearing. ( Id. at 106-09, 113, 152). On February 22, 2008, Plaintiff, represented by counsel, testified at a hearing before an Administrative Law Judge (ALJ). ( Id. at 113). The ALJ denied Plaintiff's request for benefits on April 24, 2008. ( Id. at 113-20).

On August 18, 2009, the Appeals Council granted Plaintiff's request for review, vacated the April 2008 decision, and remanded. (R. at 121-23). The Appeals Council determined that the April 2008 decision did not identify Plaintiff's severe impairments and did not contain an adequate evaluation of treating source opinions. ( Id. at 122). Upon remand, the Appeals Council ordered the ALJ to evaluate Plaintiff's severe impairments and give further consideration to the treating source opinions in accordance with the applicable regulations. ( Id. at 123). The Appeals Council also ordered the ALJ to "offer [Plaintiff] an opportunity for a hearing, take any further action needed to complete the administrative record and issue a new decision." ( Id. ).

On remand, Plaintiff, represented by counsel, testified at a hearing on June 16, 2010, before an ALJ.[3] (R. at 38, 55-105). The ALJ also heard testimony from Ashok G. Jilhewar, M.D., an impartial medical expert (ME), and Lee O. Knutson, a vocational expert (VE). ( Id. at 38, 55-105, 306-07, 309-10).

The ALJ denied Plaintiff's request for benefits on November 22, 2010. (R. at 38-49). Applying the five-step sequential evaluation process, the ALJ found, at step one, that Plaintiff had not engaged in substantial gainful activity since September 16, 2005, the alleged onset date. ( Id. at 40). At step two, the ALJ found that Plain-tiff's low back pain due to small disc protrusions at L4-5 and L5-S1, and, as of September 3, 2009, degenerative disc disease of the cervical spine and cervical radiculopathy, as well as thoracic or lumbosacral neuritis or radiculitis are severe impairments. ( Id. at 40-41). At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meet or medically equal the severity of any of the listings enumerated in the regulations. ( Id. at 41-42).

The ALJ then assessed Plaintiff's residual functional capacity ("RFC")[4] and determined that she has the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except that

prior to September 3, 2009, she could only occasionally climb ramps and stairs and could never climb ladders, ropes, or scaffolds. She could frequently balance, stoop, kneel, crouch, and crawl. Effective September 3, 2009, [Plaintiff] has additional limitations of frequent use of her right upper extremity and only occasional use of her left upper extremity.

(R. at 42). At step four, based on Plaintiff's RFC and the VE's testimony, the ALJ determined that prior to September 3, 2009, Plaintiff was capable of performing past relevant work as a machine operator and secretary/dispatcher. ( Id. at 47). Beginning on September 3, 2009, Plaintiff is unable to perform any past relevant work. ( Id. ). At step five, based on Plaintiff's RFC, age, education, work experience, and the VE's testimony, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, including usher and parking lot attendant. ( Id. at 47-48). Accordingly, the ALJ concluded that Plaintiff was not suffering from a disability as defined by the SSA. ( Id. at 48-49).

The Appeals Council denied Plaintiff's request for review on February 15, 2012. (R. at 23-27). Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).


Judicial review of the Commissioner's final decision is authorized by § 405(g) of the SSA. In reviewing this decision, the Court may not engage in its own analysis of whether the plaintiff is severely impaired as defined by the Social Security Regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Nor may it "reweigh evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute [its] own judgment for that of the Commissioner." Id. The Court's task is "limited to determining whether the ALJ's factual findings are supported by substantial evidence." Id. (citing § 405(g)). Evidence is considered substantial "if a reasonable person would accept it as adequate to support a conclusion." Indoranto v. Barnhart, 374 F.3d 470, 473 (7th Cir. 2004). "Substantial evidence must be more than a scintilla but may be less than a preponderance." Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). "In addition to relying on substantial evidence, the ALJ must also explain his analysis of the evidence with enough detail and clarity to permit meaningful appellate review." Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005).

Although this Court accords great deference to the ALJ's determination, it "must do more than merely rubber stamp the ALJ's decision." Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (citation omitted). The Court must critically review the ALJ's decision to ensure that the ALJ has built an "accurate and logical bridge from the evidence to his conclusion." Young, 362 F.3d at 1002. Where the Commissioner's decision "lacks evidentiary support or is so poorly articulated as to prevent meaningful review, the case must be remanded." Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).


Plaintiff began treating with Claudia Vera, M.D. in October 2004. (R. at 477-78). On October 14, 2004, Plaintiff presented with chronic back pain. ( Id. at 477). Upon examination, Dr. Vera found lower back muscle tenderness, no muscle spasms or rigidity, and no tenderness over kidneys. ( Id. ). Plaintiff had a limited range of motion in her lumbar spine-flexion/extension to 60° and lateral flexion to 15°. ( Id. ). Dr. Vera diagnosed back disorder NOS and backache NOS and prescribed Soma and Ultram.[5] ( Id. at 478). On July 8, 2005, Plaintiff was no longer taking medications and reported that her back pain was "resolved." ( Id. at 479). In September 2005, Plaintiff did not report any back pain, and on musculoskeletal examination, no obvious deformities, muscle weakness, or atrophy were identified. ( Id. at 481-84).

On February 15, 2006, Plaintiff presented with back pain and reported chronic back ache radiating to her lower extremities for the prior several months. (R. at 485). Upon examination, Dr. Vera found limited range of motion in the lumbar spine, lower back muscle tenderness, no muscle spasms, no muscle rigidity, and no tenderness over kidneys. ( Id. ). Dr. Vera ordered an MRI, diagnosed backache NOS, and renewed Plaintiff's Soma and Ultram prescriptions. ( Id. at 486).

The MRI of Plaintiff's lumbar spine was performed on February 16, 2006. (R. at 468-69). The MRI revealed mid-sized central and left paracentral disc protrusion at the L4-5 level contiguous with the left L5 nerve root, and a moderate-sized central disc protrusion at the L5-S1 level. ( Id. ). However, these protrusions caused no spinal stenosis or nerve root displacement. ( Id. ). The L2-3 and L3-4 levels were unremarkable. ( Id. at 468).

On May 25, 2006, Francis Vincent, M.D., a DDS nonexamining physician, completed a physical RFC assessment on behalf of the Commissioner. (R. at 492-99). Dr. Vincent concluded that Plaintiff was capable of occasionally lifting 20 pounds, frequently lifting 10 pounds, and could sit, stand, and walk for six hours in an eight-hour workday. ( Id. at 493). Dr. Vincent also concluded that Plaintiff can occasionally climb ramps or stairs, but never climb ladders, ropes, or scaffolds. ( Id. at 494). On July 13, 2006, Dr. Vincent's evaluation was affirmed by Michael Nenaber, M.D., another DDS nonexamining physician. ( Id. at 500-01).

On November 9, 2006, Dr. Vera completed a physical RFC assessment. (R. at 505-07). She diagnosed lower back pain, lumbar disc disease, and herniation at multiple levels, which Plaintiff has had since approximately 2005 and which has worsened over the prior six months. ( Id. at 505). Dr. Vera opined that Plaintiff is unable to stand or walk and can sit only one hour during an eight-hour workday. ( Id. at 506). She concluded that Plaintiff can occasionally lift 10 pounds and frequently lift 5 pounds. ( Id. ). Dr. Vera stated that side effects of Plaintiff's medications include sedation, and Plaintiff is markedly limited in her ability to complete a normal workday without interruptions; markedly limited in her ability to perform at a consistent pace without an unreasonable number and length of rest periods; and significantly deficient in her ability to sustain concentration, persistence, and pace. ( Id. at 507).

On November 10, 2006, Plaintiff presented with lower back pain, radiating to both sides. (R. at 518). On examination, Plaintiff's straight leg raising tests were negative, but she had pain with flexion and extension.[6] ( Id. at 519). Dr. Vera diagnosed back ache, continued Vicodin, [7] and prescribed Soma. ( Id. ).

On December 7, 2006, Plaintiff reported her pain was better. (R. at 520). Plaintiff's examination was unremarkable. ( Id. at 521). Dr. Vera diagnosed degeneration of lumbar or lumbosacral intervertebral disc. ( Id. ).

On March 30, 2007, an EMG and nerve conduction study was performed. (R. at 535-36). The results were unremarkable. ( Id. at 535). No evidence of peripheral neuropathy, cervical radiculopathy, or lumbosacral radiculopathy was found. ( Id. ).

On May 10, 2007, Plaintiff reported that her back pain was better and that she was trying not to take Vicodin. (R. at 546-47). Dr. Vera did not conduct a musculo-skeletal examination. ( Id. at 546-47). On May 31, 2007, Plaintiff presented for a follow-up and did not complain of any back pain. ( Id. at 548). No musculoskeletal examination was performed. ( Id. at 548-49).

Plaintiff performed physical therapy in July and August 2007. (R. at 532-34, 556). On discharge, Plaintiff "had full range of motion and demonstrated good posture and body mechanics." ( Id. at 556). "She also had no impairments whatsoever." ( Id. ). By her final session, Plaintiff "had no pain or functional limitations." ( Id. ).

On September 17, 2007, a second MRI was performed on Plaintiff's lumbar spine. (R. at 552). The results were "entirely unchanged from the previous exam." ( Id. ). The MRI found degenerative changes in the discs at L4-5 and L5-S1. ( Id. ). It also found that contact is made with the L5 root, but the root was not thickened or displaced. ( Id. ).

In September, October, and December 2007, Plaintiff presented with no complaints of back pain. (R. at 565, 567, 569). Dr. ...

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