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Larson v. Colvin

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

March 19, 2014

BRIAN LARSON, Plaintiff,
CAROLYN COLVIN, [1] Commissioner of Social Security, Defendant

Page 799

For Brian Marshal Larson, Plaintiff: Ellen Chamberlain Hanson, Hanson and Hanson, Morris, IL.

For Michael J Astrue, Commissioner of Social Security, Defendant: Abigail Lynn Peluso, SSA, LEAD ATTORNEYS, United States Attorney's Office (NDIL), Chicago, IL.

Page 800



The plaintiff, Brian Larson, seeks review of the final decision of the Commissioner (" Commissioner" ) of the Social Security Administration (" Agency" ) denying his application for Disability Insurance Benefits and Supplemental Security Income (" SSI" ) under Titles II and XVI of the Social Security Act (" Act" ). 42 U.S.C. § § 423(d); 1382c(a)(3)(A). Mr. Larson asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.



Mr. Larson applied for benefits on July 14, 2006, alleging that he had become disabled on November 25, 2009, due to lumbar disc herniation and lower back pain causing weakness in his legs. (Administrative Record (" R." ) 292, 332). His claim was denied initially and upon reconsideration.

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(R. 131-138). Mr. Haralson continued pursuit of his claim by filing a timely request for hearing. (R. 144).

An administrative law judge (" ALJ" ) convened a hearing on May 6, 2008, and denied Mr. Larson's application. (R. 109). Mr. Larson requested review of the decision and the Appeals Council remanded the case. (R. 121-22, 190). A second hearing was held on March 18, 2011, at which Mr. Larson, represented by counsel, appeared and testified. In addition, Dr. Sheldon Slodki testified as a medical expert and Thomas Dunleavy testified as a vocational expert. (R. 38-106). On April 15, 2011, the ALJ issued a decision finding that Mr. Larson was not disabled because he retained the capacity to perform a full range of light work. (R. 18-31). This became the final decision of the Commissioner when the Appeals Council denied Mr. Larson's request for review of the decision on May 25, 2012. (R. 1-6). See 20 C.F.R. § § 404.955; 404.981. Mr. Haralson has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).




The Vocational Evidence

Mr. Haralson was born on September 18, 1979, making him thirty-one years old at the time of the ALJ's decision. (R. 292). He has a high school education. (R. 339). He has had a variety of jobs, most recently as a saw operator, which required him to frequently lift and carry 50 pounds. (R. 333-34). Prior to that, he briefly worked as a receiving clerk at a casino and as a material handler. (R. 333).


The Medical Evidence

The record in this case is a 1600-page morass of medical reports in no particular order. The distillation of all that is essentially that Mr. Larson has back pain despite a couple of surgical procedures and other treatments, and abdominal pain with diarrhea that was, for the most part, controlled with medication. His treating physician doesn't think he can perform any kind of work - not even sedentary work.


Back Issues

Mr. Larson had an MRI in September 2005 that revealed disc herniation at the L5-S1 level. (R. 1003). On November 21, 2005, Mr. Larson saw Dr. Michael Malek, a neurosurgeon, on a referral from Dr. Gustavo Pedraza. (R. 1002). He complained of low pain that had started in July 2005. Occasionally, he felt weakness in his legs. Walking was particularly bothersome and lying on his back aggravated his condition. Sitting relieved his discomfort for brief periods. Mr. Larson had three epidurals with no significant result. His reflexes were hypoactive, but straight leg raising and remainder of exam were within normal limits. He had no significant radicular pain. Dr. Malek referred him for physical therapy. (R. 1002-03).

About a week later, Mr. Larson was " pretty miserable." He said he couldn't really function with the pain (R. 1001). Dr. Malek told him if this was so, a spinal fusion might be the best course. (R. 1001). Mr. Larson then had a discogram, which was positive at L5/S1. Dr. Malek discussed a range of options with Mr. Larson and told him to stop smoking. (R. 1000). On February 3, 2006, fusion was performed at L5-S1 with laminectomy,

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discectomy, instrumentation with cage, and grafting (R. 1024). On March 13, 2006, his x-rays looked excellent. Straight leg raising was negative. He had some paraspinal pain especially into the left buttock - this was to be expected post-surgery. (R. 998, 999).

X-rays were again excellent on May 1, 2006. He was kept off work until further notice. (R. 997). Three months after surgery, on June 5, 2006, Dr. Malek reported that Mr. Larson was doing excellently. He recommended he taper off wearing his brace off and sent him to physical therapy. (R. 996). X-rays taken on July 28, 2006, showed a compression deformity of T-12 (R. 1013). On August 7, 2006, plaintiff stated he was finishing his therapy and has a " job description" coming up. Dr. Malek recommended that it be " lighter duty and not involving any physical activity" (R. 995).

On September 29, 2006, Mr. Larson had a consultative examination that Disability Determination Services arranged. Mr. Larson said he felt a little better after his surgery but now had non-radiating pain that was 6/10 and achy; sometimes sharp. (R. 966). He also related a history of chronic abdominal pain due to Crohn's disease. He also had a history of depression, having attempted suicide six years earlier. (R. 966). Mr. Larson said he could walk two blocks, stand for 30 minutes and sit for 30 minutes at a time. He could lift 20 pounds. (R. 967). Range of motion in upper and lower extremities and cervical spine was normal, but lumbar flexion was limited to 30 degrees out of 90, and extension was just 10 degrees. Straight leg raising was negative. (R. 968). There was moderate lumbar tenderness. Neurological exam was normal. (R. 968).

On October 4, 2006, Dr. Michael Nenaber, reviewed the medical record for the State Disability Agency, and concluded that Mr. Larson was capable of medium work activity - lifting 50 pounds and carrying 25, with occasional stooping and crouching. (R. 985). He noted that Mr. Larson was status post-fusion, with a lumbar range of motion limited to 30 out of 90 degrees, but had negative straight leg raising and could ambulate without assistance. (R. 992). Dr. Francis Vincent affirmed Dr. Nenabar's opinion on January 9, 2007. (R. 1125).

On November 6, 2006, Dr. Malek noted Mr. Larson was still complaining of pain and stiffness, but the doctor noted there was no tenderness. Physical therapy was helping and Dr. Malek said that would continue. (R. 994). A CT scan taken on November 14, 2006, showed significant soft tissue in the posterior paraspinal spaces at the operative sites which appeared to extend into the spinal canal and surround the thecal sac and likely represented post-operative scarring. The L5 right-sided screw appeared to breach the anterior vertebral body margin. There were minimal diffuse disc bulges at L3-4 and L4-5, mild spinal canal stenosis at L3-4, mild neural formainal narrowing at L4-5, and facet joint hypertrophy at L2-3, L3-4 and L4-L5 (R. 1004). The lumbar MRI taken November 14, 2006, showed a mild diffuse disc bulge at L4-5 causing minimal ventral impression on the thecal sac but no significant spinal stenosis, and mild neural foraminal narrowing (R. 1006). The MRI also showed enhanced post-operative scar tissue in the posterior paraspinal soft tissues at the surgical sites, and at the L4-5 and L5-S1 levels it does extend into the spinal canal to surround the thecal sac and extend into the lateral recesses. It is unclear if this was causing any mass effect on the nerve roots. (R. 1007). On November 20, 2006, Dr. Malek noted the MRI showed no pathology at L4-L5, and that the discs above looked good, too. Mr. Larson had

Page 803

decreased tolerance to certain activities such as being in a car for a period of time, but Dr. Malek said that would improve with time. Physical therapy was continued. (R. 1403).

On January 29, 2007, Mr. Larson still had significant achiness and pain, primarily in his back, with occasional tingling in his leg. Dr. Malek recommended bilateral SI injections (R. 1402). An MRI taken on January 31, 2007, revealed small mild anterior wedging of T12 and L1 with prominent endplate nodules from T11-L3, extradural defects from L2/L3-L4/L5 indenting the dural sac and extending into the spinal canal, and mild degenerative changes about the posterior facet joints in L3/L4. Loss of signal from remaining L5/S1 disc space related to post-surgical changes and degenerative change (R. 1587-1588).

On February 19, 2007, Dr. Malek noted that Mr. Larson continued to complain of pain despite the epidural and sacroiliac injection. A CT scan indicated some area within the bone where the fusion was not complete. Dr. Malek recommended a discogram and prescribed Lyrica (R. 1145). On March 19, 2007, Dr. Malek reported that the discogram was positive above the fusion but the fusion had taken well. He was unsure what was causing the pain and speculated it might be the metal itself. He felt it was unlikely that removing the metal would result in significant improvement. The doctor added that the problem might also be pseudoarthrosis.[2] (R. 1144). On April 10, 2007, Dr. Malek removed all the hardware and re-did the fusion. (R. 1584). As of April 23rd, Mr. Larson was doing pretty well (R. 1143).

Mr. Larson was back to see Dr. Malek on May 9, 2007, after falling and landing on his buttocks. Straight leg raising was negative for radiculopathy, but reproduced back pain. X-rays looked good. Mr. Larson was wearing a back brace; Dr. Malek wanted to taper him off of that through water therapy and then land based therapy. He kept him off work (R. 1582). While Dr. Malek stated that there was solid fusion on the x-rays, the radiologist was more cautious, stating only that there may be a partial osseous union at the L5-S1 disc space (R. 1583). By June 25, 2007, Mr. Larson ...

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