United States District Court, N.D. Illinois, Eastern Division
JEFFREY A. JARRETTE, Plaintiff,
CAROLYN W. COLVIN,  ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER
JEFFREY T. GILBERT, Magistrate Judge.
Plaintiff Jeffrey A. Jarrette ("Claimant" or "Jarrette") brings this action under 42 U.S.C. § 405(g) seeking reversal of the decision of Defendant Carolyn W. Colvin, Acting Commissioner of Social Security ("Commissioner"), denying Jarrette's application for a closed period of disability and disability insurance benefits ("DIB"). This matter is before the Court on Claimant's motion for summary judgment . Claimant argues that the Administrative Law Judge's ("ALJ") decision denying his application should be reversed. Claimant urges the Court to award benefits or, alternatively, to remand the case for further proceedings. In support of his motion to reverse, Claimant raises the following issues: (1) whether the ALJ's step-3 determination concerning whether Claimant's impairment meets or medically equals a listed impairment was erroneous; and (2) whether the ALJ's residual functional capacity ("RFC") determination was erroneous.
For the reasons set forth below, Claimant's motion for summary judgment  is granted. The decision of the Commissioner is reversed, and the case is remanded for further proceedings consistent with this Memorandum Opinion and Order.
Jarrette was born on July 14, 1963. (R. 103.) He is approximately 6 feet tall and weighs around 180 pounds. (R. 143.) He is right handed. (R. 165.) Jarrette has a twelfth-grade education (R. 17) but completed an "electrical apprenticeship program in 1995 (R. 148). He worked as an electrician for years prior to becoming unemployed. (R. 145.)
Jarrette alleges a disability onset date of January 7, 2007, when he was forty-three years old. (R. 103.) However, he did further work as an electrician for one and a half weeks in April 2007. (R. 74.) Generally, his alleged disability results from pain in his lower back, spine, and legs. (R. 17, 144.)
A. PROCEDURAL HISTORY
On March 21, 2008 Jarrette filed a claim for DIB, alleging disability since January 7, 2007. (R. 103.) His application was denied on May 2, 2008 (R. 81-83), and upon reconsideration on July 11, 2008 (R. 88-90). On May 29, 2009, Jarrette requested that his application be considered for a closed period of disability, commencing January 7, 2007 and ending May 11, 2009, because he had "experienced significant improvement." (R. 102.) Jarrette requested a hearing by an ALJ (R. 93-94), which was held on June 4, 2009 (R. 71). Jarrette personally appeared and testified at the hearing and was represented by counsel. (R. 21, 71.) Medical expert ("ME") Ashok G. Jilhewar, M.D., and vocational expert ("VE") Cheryl R. Hoiseth also testified. ( Id. )
On July 1, 2009, the ALJ denied Jarrette's claim for a closed period of disability and DIB, finding him not disabled under the Social Security Act. (R. 71-80.) The Social Security Administration Appeals Council then denied Jarrette's request for review (R. 1-3), leaving the ALJ's decision as the final decision of the Commissioner and, therefore, reviewable by the District Court under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
B. RELEVANT HEARING TESTIMONY
1. Claimant Jeffrey Jarrette
Jarrette testified that he had been working as an electrician in residential, commercial, and industrial settings. (R. 39-40.) He began experiencing pain on the job and "complain[ed] about it at work." (R. 40.) The pain was in his lower back and became "worse and worse." ( Id. )
On January 7, 2007, his employer went out of business, and Jarrette stopped working. (R. 40-41.) He has alleged that this was also his disability onset date. (R. 103.) Jarrette attempted to return to work during a ten-day period in April 2007 but experienced pain throughout the work assignment. (R. 36, 41.) He was asked to return for a subsequent assignment, but he testified that he had not wished to go back. (R. 41.)
Much of Jarrette's testimony concerned his post-work symptoms and activities. In general, Jarrette stated that he had pain that radiated from his right side and lower back through his right buttock and right calf but did not extend into his toes. (R. 41-42.)
Jarrette testified that he endured his "worst incident" in May 2007, when his back "went out." (R. 42-43.) In response to this event, he began seeing an orthopedist, who ordered a magnetic resonance imaging ("MRI"). (R. 43-44.) The MRI detected slight abnormalities in his spine, but the doctor told Jarrette that he was a "healthy man" and that his pain threshold would fluctuate throughout the day because he was taking medication. (R. 44-45.)
Jarrette testified that his condition worsened throughout the remainder of 2007. (R. 45-46.) He did not attempt to work during this period because he had problems sitting in chairs and was unable to become comfortable. (R. 45.) Specifically, he said that he was only able to sit or stand for twenty minutes at any one time and that he was "usually" only able to walk without stopping for 60 feet. (R. 45-46.) In addition, he stated that he was unable to pick up objects from the floor. (R. 46.)
According to Jarrette, his condition further worsened in early 2008. (R. 46-47.) Eventually, he went to the emergency room because medication was not effectively eliminating his pain. ( Id. ) While in the presence of a Fox Valley physician,  Jarrette noticed that his spine was "curved." (R. 47.)
Jarrette testified that, at one point, his doctor gave him muscle relaxers and certain pills, which provided him some pain relief. (R. 48.) Further, a Fox Valley doctor gave him a series of "injections." (R. 49-50.) Although the first injection provided some relief, Jarrette said that he did not recall a second injection being much help. (R. 50.) After a third injection, Dr. Krishna Parameswar "finally" sent him to see a neural surgeon. ( Id. )
Additionally, Jarrette described some of the daily activities in which he engaged during this period. (R. 48-53.) He said that he lived by himself in a two-story, single-family home. (R. 48-49.) He had difficulty using the stairs and would "crawl up them or crawl down them." (R. 49.) He said that he was only able to do minimal housework (R. 48-49) and that several members of his family would come over to mow his lawn (R. 51-52).
Jarrette also testified that it was difficult for him to drive an automobile and to shop. (R. 49.) Because of an inability to lift his leg, he had trouble getting into and out of his vehicle and needed to pull on his pant leg to do so. ( Id. ) He testified that he shopped at night and leaned on his shopping cart while walking down the aisles. ( Id. ) He also needed approximately thirty minutes to shop. ( Id. )
Moreover, Jarrette testified that he had difficulty sleeping and was only able to sleep for "an hour at the most. "(R. 48.) He was unable to "find a comfortable position" even when using "orthopedic wedges" or attempting different sleeping positions. ( Id. )
Jarrette testified that it was a challenge for him to use the bathroom. (R. 52-53.) His difficulties were due, in part, to his use of certain pills, which had given him constipation. ( Id. ) As a result, he "didn't eat much" and lost weight. (R. 52.) Moreover, Jarrette would sometimes urinate into a cup when he was unable to walk to the bathroom with sufficient speed. ( Id. ) He would occasionally even spend the night in the bathroom to be close to his toilet. ( Id. ) At the hearing, Jarrette opined that this was the "worst time" of his life. ( Id. )
Moreover, Jarrette said that he discontinued going to church because he was unable to sit in the seats. (R. 50.) He described one particular instance when he was "writhing in pain" during a church service. (R. 50-51.)
In sum, Jarrette claimed that he was "unpleasant to be around" during this period because he had no energy and was constantly in pain. (R. 51.) He said that his friends and family would comment on his situation and urge him to seek additional help. (R. 53.) Although he did not originally want to undergo an operation, he eventually "was at the end of [his] ropes" and "knew [he] needed something done." ( Id. )
Jarrette eventually had his back surgery in October 2008 (R. 292), and, by 2009, his condition had seemingly improved. At the hearing, Jarrette testified that he returned to school and church in January 2009. (R. 38, 51.) During that time, he underwent physical therapy, and he claimed that his physical health had improved over the course of his 2009 class. (R. 39.)
2. Medical Expert Ashok Jilhewar
Dr. Ashok Jilhewar testified at the hearing as an ME and said that he was able to provide an assessment of Jarrette's condition on and after March 6, 2008. (R. 24.) However, he said that he was unable to assess Jarrette's condition as it was between May 13, 2007 and March 6, 2008 because of a "gap in the management" of Jarrette's symptoms. ( Id. )
Nevertheless, the ME testified that Jarrette's only impairment was "lower back pain." ( Id. ) The ME opined that the pain would "definitely" result in either impairment or a combination of impairments that would have more than a minimal effect on Jarrette's ability to perform work-related activities. (R. 25.) However, the ME did not feel that Jarrette's impairment met or equaled the criteria of any regulatory "listing." ( Id. ) Further, the ME testified that he had a "problem" with Jarrette's claims of severe pain because, during the relevant period, Jarrette's gate was normal with respect to "heal, toe, tendon, and standing on one leg." (R. 26.) Therefore, Jarrette's ability to ambulate was "normal." ( Id. )
The ME stated that Jarrette's impairment had necessitated a microdiscectomy, which had "good results." (R. 24.) As of January 22, 2009, Jarrette's pain was "mild" and was not expected to affect his concentration at work. (R. 24-25.)
Nevertheless, the ME opined that Jarrette was unable to work between May 2008 and January 2009, during which time he was, apparently, in "significant pain." (R. 60.) However, the ME concluded that Jarrette did have the RFC for "sedentary" work on either side of that time period. (R. 26-27, 60-61.)
Additionally, the ME stated that Jarrette's symptoms pertained to his right lower extremities. (R. 33-34.) Jarrette had undergone surgery on his right side, and scans had indicated abnormalities on the right side of his spine. (R. 34.) In contrast, an EMG had shown abnormalities on Jarrette's left side and a "normal" right side. ( Id. ) When asked by the ALJ, the ME testified that he had no explanation for this seeming contradiction, but he said that the inconsistency was responsible for the hesitation displayed by one of Jarrette's surgeons. (R. 35.)
At one point during the hearing, Jarrette's attorney asked the ME about Jarrette's 2007 MRI. (R. 27-28.) This MRI showed a disc bulge and herniations that contacted Jarrette's right "S1" nerve root. (R. 27.) The ME testified, however, that this type of contact would not necessarily result in pain. ( Id. ) The ME focused on the clinical findings, which apparently did not show that Jarrette had certain types of "narrowing." (R. 27-28.)
Later in the hearing, after Jarrette's own testimony had concluded, the ME said that Jarrette's description of his symptoms was consistent with the medical evidence. (R. 54.) However, the ME also stated that he would not change any of his previous opinions because fewer than twelve months had passed between the time of Jarrette's first injection, May 12, 2008, and the "end" of his surgery, January 22, 2009. ( Id. ) Nevertheless, the ME admitted that Jarrette was not actually released to work until May 2009. (R. 55-56.)
3. Vocational Expert Cheryl Hoiseth
Cheryl Hoiseth testified at the hearing as a VE. She stated that, if Jarrette were restricted to "sedentary work, " he could not perform his past relevant work. (R. 63.) Further, he would not be able to transfer his prior vocational skills to other sedentary work. ( Id. ) The VE testified that, therefore, the medical vocational grid would direct the outcome of the case. ( Id. )
The VE added that, if Jarrette were only able to stand for twenty minutes at a time, sit for twenty minutes at a time, and walk for at most 200 feet without stopping, he would be unable to work. (R. 63-64.)
C. MEDICAL EVIDENCE
1. Treating Physicians
Craig Popp, M.D.
On May 31, 2007, Jarrette saw Dr. Craig Popp and complained of leg and back pain, weakness, leg numbness, and tingling. (R. 242.) Jarrette reported that the pain had begun in 2006 and that he had not "improved tremendously" since that time. ( Id. ) On a scale of 1 to 10, Jarrette described his pain as ranking a 5. Jarrette also reported that he had no bowel or bladder problems. ( Id. ) After performing a physical examination, Dr. Popp recommended that Jarrette undergo an MRI of his lumbar spine because of the numbness, tingling, and "prolonged period that this ha[d] been going on." (R. 245.)
Subsequently, on June 14, 2007, Jarrette saw Dr. Popp for an evaluation and MRI test results. (R. 238-40.) The physical examination revealed dorsiflexion, plantar flexion, "EHL strong to manual motor test, " and, possibly, "slightly decreased right patellar reflex." (R. 238.) The MRI showed a "thrombosed vessel, " an extruded disc fragment, or a sequestered disc fragment. ( Id. ) Dr. Popp said that he wanted to see if Jarrette's condition improved over time but recommended "injections" if it worsened. ( Id. ) Dr. Popp ordered physical therapy but noted that Jarrette was "grossly intact" neurologically, aside from some decreased sensation. ( Id. ) Dr. Popp also recommended that Jarrette undergo a lateral ...