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King v. Colvin

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

April 29, 2014

SUSAN KING, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

SHEILA FINNEGAN, Magistrate Judge.

Plaintiff Susan M. King seeks to overturn the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416, 423(d), 1381a. The parties 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. After careful review of the record, the Court now grants Plaintiff's motion, denies the Commissioner's motion, and remands the case for further proceedings.

PROCEDURAL HISTORY

Plaintiff applied for DIB on August 20, 2007 and SSI on January 31, 2008, alleging that she became disabled on March 9, 2007. (R. 155, 159, 161, 190). She claimed she was disabled due to chronic low back pain and thyroid issues. (R. 195). The Social Security Administration ("SSA") denied both of Plaintiffs applications on April 3, 2008, and denied them again upon reconsideration on October 23, 2008. (R. 68-71). Pursuant to Plaintiff's timely request, Administrative Law Judge ("ALJ") Sherry Thompson held an administrative hearing on December 1, 2009. (R. 28). The ALJ heard testimony from Plaintiff (who appeared without counsel), Plaintiff's boyfriend Vaughn Ragland, and vocational expert ("VE") Pamela Tucker. On April 9, 2010, about four months after the hearing, the ALJ determined that Plaintiff is capable of performing her past relevant work as a document specialist and, thus, is not disabled. (R. 72-84). The Appeals Council denied Plaintiff's request for review on July 10, 2012, and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. (R. 7-10).

In support of her request for reversal and remand, Plaintiff argues that the ALJ (1) failed to consider the effects of Plaintiff's depression and gout on her limitations; (2) failed to give proper weight to the March 19, 2008 opinion of Dr. Timothy R. Lubenow and the May 13, 2008 opinion of Dr. Thomas Y. Pang, her treating physicians; and (3) made a flawed credibility determination by misconstruing Plaintiff's ability to engage in activities of daily living and her treatment history, and by giving no weight to the testimony of two third party witnesses.

FACTUAL BACKGROUND

Plaintiff was born on June 22, 1966, and was 43 years old at the time of the ALJ's decision. (R. 43). She completed the twelfth grade. (R. 44). Prior to applying for DIB and SSI, Plaintiff worked as a document specialist-standing and copying documents-for about two or three years until she became the supervisor of a copy department, which position she held for over seven years. (R. 44-45, 196). On March 9, 2007, Plaintiff's chronic back pain became so severe that she fell upon getting out of bed the next day and she never again felt able to return to work. (R. 44-46).

As discussed in more detail below, Plaintiff applied for and began receiving long term disability benefits through her employer sometime around May 2007 (and also applied for DIB a few months later, in August 2007). (R. 155, 159, 161, 190, 338, 451-53). Her long term disability benefits were discontinued when she filed a worker's compensation claim sometime in mid-December 2007. (R. 451-53). Her worker's compensation claim was denied and shortly thereafter, on January 31, 2008, Plaintiff applied for SSI. (R. 190, 451-53).

A. Physical Health Medical History

1. March 2007 through December 2007.

On March 11, 2007, a few days after Plaintiff's last day at work, she called the Howard Brown Health Center in Chicago, Illinois ("Howard Brown") complaining about her back pain, and was told to take Valium. (R. 332). The next day, she was examined by, and discussed her pain more fully with, Dr. James Barrett, a family practitioner at Howard Brown. (R. 332). Plaintiff told Dr. Barrett that she was experiencing back pain that radiated to her mid left quadrant, as well as foot pain radiating from her left pinky toe. ( Id. ). She also said she planned to be absent from work for about three days. (R. 332). Dr. Barrett recommended that Plaintiff continue taking Valium for her pain and also referred Plaintiff to Dr. Mark Pietz, a podiatrist, to evaluate her foot pain. ( Id. ).

Two days later, on March 14, 2007, Plaintiff visited Dr. Pietz at the Chicago Foot Health Centers for an initial visit regarding her foot pain. (R. 317). Dr. Pietz removed the dead skin from a "painful hyperkeratotic lesion" on Plaintiff's left fifth toe which had developed on top of a bony outgrowth on that toe, and the skin removal slightly improved Plaintiff's pain. ( Id. ). Dr. Pietz recommended she wear comfortable shoes, consider an injection into or possible removal of the bony outgrowth from the toe, and that she return in two weeks to discuss her foot care. ( Id. ). However, there is nothing in the record showing Plaintiff ever saw Dr. Pietz again.

Despite her earlier plan to be out of work for about three days, Plaintiff still had not returned to work as of March 19, 2007. Instead, she had a follow-up visit with Dr. Barrett that day regarding her back pain, which she said was at "about 8" on a scale of 1-10, with 10 being the worst pain. (R. 330). Dr. Barrett prescribed Tylenol with Codeine # 3 and referred Plaintiff for physical therapy. (R. 331). Plaintiff then visited AthletiCo for five physical therapy sessions, from March 22, 2007 until April 5, 2007, where she told the physical therapist her back pain resulted from lifting heavy boxes at work. (R. 503-532). She returned for a follow-up visit with Dr. Barrett on April 9, 2007 and complained that she was still in constant, acute pain and still felt unable to return to work. (R. 326). Dr. Barrett recommended Plaintiff have an MRI scan of her lumbar spine and referred her to Dr. Hillard Slavick, a neurologist and pain management specialist at Clinical Neurosciences, S.C., for a neurological examination. (R. 328, 340-43). Dr. Barrett also faxed a note to Plaintiff's work indicating she could not return until she was cleared to do so by Dr. Slavick. (R. 328).

On May 2, 2007, Plaintiff had the recommended MRI of her lumbar spine done at the Advocate Illinois Masonic Medical Center ("Advocate"). (R. 342-43). The MRI showed a mild straightening of the lumbar spine; a mild broad-based posterior disc osteophyte[1] complex at L4/5; a broad-based posterior disc osteophyte complex which minimally narrowed the lateral recesses at L5-S1; and a mild loss of disc height at L5/S1; but the neural foramina[2] and central canal appeared "adequately patent" and the paraspinal soft tissues appeared "unremarkable." ( Id. ). A few days later, on May 9, 2007, Dr. Slavick reviewed Plaintiff's MRI results and conducted an initial neurological examination. (R. 340-41). Plaintiff told Dr. Slavick that she had been having low back pain for several years that had become worse in March 2007, and that three weeks of physical therapy had provided her no relief. (R. 340). Dr. Slavic confirmed that Plaintiff's MRI revealed osteophytes at L4-5 and L5-S1, with mild foraminal narrowing L5-S1.[3] ( Id. ). He also noted that Plaintiff was "slightly hunched while walking, but otherwise had intact strength, sensation, coordination and straight leg raise." ( Id. ). Based on the MRI and his examination, Dr. Slavick diagnosed Plaintiff with "bilateral lumbar radiculopathy[4] with a two-month history of sciatic radiating pain in the lower limbs, left greater than right." ( Id. ). He recommended an EMG/NCV study[5] of Plaintiff's lower limbs, discontinued her use of Tylenol with Codeine #3 and Flexeril, and prescribed Lyrica and Celebrex. (R. 341).

Plaintiff had the recommended EMG/NCV study performed at Advocate on May 21, 2007, which produced no abnormal results. (R. 339). Dr. Slavick conducted a follow-up examination of Plaintiff on June 5, 2007 and reviewed the results of the May 21, 2007 EMG/NCV study with her. (R. 338). He discussed that the EMG/NCV results were "normal" and that, although her MRI had showed some "spurring, " she had no herniated discs. ( Id. ). Upon examination, Plaintiff had "tenderness to palpation over the right lumbosacral[6] paraspinal muscles, " but was otherwise "intact." ( Id. ). Dr. Slavick revised his earlier diagnosis, now finding that there was "[n]o evidence of lumbosacral radiculopathy, " and that Plaintiff's pain may instead be caused by "a malalignment of her lumbosacral spine." ( Id. ). He suggested that Plaintiff speak with Dr. Barrett about a referral for chiropractic adjustments and asked her to follow up with him in four to six weeks. ( Id. ). Plaintiff was also in the process of applying for long term disability benefits through her employer at this time, and Dr. Slavick completed a form to assist her (and Plaintiff eventually began receiving those benefits). (R. 338, 451-53).

Plaintiff received the recommended chiropractic treatments at Lifestyle Chiropractic, completing twenty-one sessions between June 16, 2007 and August 17, 2007. (R. 353-362). At the initial visit, the chiropractor filled out a checklist form entitled "Report of Radiographic Examination", checking boxes indicating that Plaintiff's cervical and lumbar spines were viewed and showed a loss of the normal anterior curve and a narrowing of weight bearing disc spaces. (R. 360). Plaintiff later told her physicians that the chiropractic treatments did not resolve her back pain. (R. 460).

While she was receiving the chiropractic treatments, Plaintiff's long term disability insurer sought a Work Capacity Evaluation ("WCE") of Plaintiff to evaluate her benefits claim, which Tekela Scott, MPT of NovaCare Rehabilitation performed on August 7, 2007. (R. 347-350). Upon examination, Plaintiff exhibited trouble squatting and crouching, her bilateral strength in her lower extremities was a 4/5 and she had poor transfer skills from sitting to standing, and she could stand for five minutes, but required a forward leaning rest break. (R. 348). Plaintiff was capable of sitting, kneeling, and walking, among other tasks, but she generally exhibited "very slow pacing" and complained of pain throughout the exam. (R. 349). Ms. Scott opined that Plaintiff could not perform the physical demands of her job because she had injured her low back and bilateral groin area as a result of lifting and pulling heavy items at her job. (R. 347). Ms. Scott found the results of the examination valid as supported by objective testing, and stated that Plaintiff appeared to put forth moderate effort. (R. 347, 350). After ceasing her chiropractic treatments and after her WCE, Plaintiff applied for DIB under Social Security on August 20, 2007. (R. 155, 159, 161, 190).

Plaintiff's long term disability insurer next sought an independent medical evaluation ("IME") of Plaintiff to further assess her claim. (R. 375-76). Dr. Jesse P. Butler, an orthopedic surgeon at the Illinois Bone & Joint Institute, conducted the IME on September 26, 2007. ( Id. ). Dr. Butler evaluated Plaintiff's May 2, 2007 MRI scan and found that it showed Plaintiff had "degenerative disc disease at L5-S1" with "[t]he remainder of her lumbar spine... essentially normal." (R. 376). Upon examination, Plaintiff demonstrated normal strength, sensation and reflexes and her straight leg raise test was negative. ( Id. ). However, she was only able to bend backwards 5 degrees and that was with pain. ( Id. ). Dr. Butler determined that Plaintiff's lifting and bending activities at work caused her to develop acute lower back pain. ( Id. ).

In late September 2007, Plaintiff started seeing a new family practitioner, Dr. Rochelle Hawkins at the D.H. Medical Group, SC (R. 433-35, 441). They discussed Plaintiff's chronic back pain issues and Dr. Hawkins referred Plaintiff to a pain specialist, Dr. Jonathan Wyatt. ( Id. ). On October 8, 2007, Dr. Wyatt examined Plaintiff at the Advocate Christ Medical Center, observing that she exhibited a full range of motion in her back with flexion, but also tenderness with palpation in her lower quadrants and along the lumbar paraspinal muscles with deconditioning[7] of her low back muscles. (R. 382-88, 440). He also reviewed her MRI, which he stated "reveals an osteophyte complex at the level of L5-S1 bulging posteriorly with encroachment to the lateral recesses bilaterally... [but with] significant role for the spinal nerves to leave the intervertebral foramina at the L5-S1 levels bilaterally." (R. 386). He also found that her "EMG report" was "normal." ( Id. ). Dr. Wyatt thought Plaintiff's pain might be related to a gynecological issue, but a later pelvic ultrasound ruled out that possibility. (R. 386, 560).

Dr. Hawkins next referred Plaintiff to Dr. David Hoffman, an orthopedic surgeon at Chicago Orthopedics & Sports Medicine, SC (R. 430-31). At a November 8, 2007 examination, Dr. Hoffman observed that Plaintiff had almost no ability to bend backward and exhibited low back pain during her straight leg raise test, although she was able to raise her leg to 75 degrees. ( Id. ). He also reviewed her May 2, 2007 MRI and stated that although it showed a "broad-based posterior disk osteophyte complex... at L5-S1 [and] to a lesser degree at L4-L5, [and] mild narrowing of the lateral recess at L5-S1, " the "central canal and neural foraminal [sic] appear[ed] adequately patent." ( Id. ). He assessed her with chronic low back pain and fibromyalgia, gave her an injection of Depo-Medrol[8] and Lidocaine[9] into each greater trochanter[10] and recommended she again try physical therapy. (R. 431). In that regard, Dr. Hoffman referred Plaintiff to Accelerated Rehabilitation Center ("ACR"). (R. 396, 398, 417-418).

Plaintiff attended nine physical therapy sessions at ACR with Kristina Helquist, PT, DPT, between November 14, 2007 and December 20, 2007. (R. 414, 419-425). Ms. Helquist sent a December 18, 2007 progress report to Dr. Hoffman, discussing that Plaintiff's lower extremity strength was "less than 3/5 bilaterally, " that she had limited ability to bend, a positive Thomas test, [11] and she had made no significant improvements in physical therapy. (R. 415-16). Dr. Hoffman's notes state that he examined Plaintiff on December 19, 2007, the day after Ms. Helquist authored her report to him, but there are no records or reports discussing his December 19, 2007 examination. (R. 429). Sometime in mid-December 2007, Plaintiff filed a worker's compensation claim resulting in the termination of her long term disability benefits; however, her worker's compensation claim was rejected. (R. 451-53).

2. January 2008 through December 2008.

Plaintiff returned to Dr. Hoffman for a follow-up visit on January 3, 2008, complaining of back pain that radiated to her left hip and groin. (R. 429). Dr. Hoffman noted that Plaintiff had a "rather complicated history" and that her multiple doctors had yet to come to a "definitive diagnosis of her problem." ( Id. ). Plaintiff reported being "very tender to palpation" in the "right low back" and in the right paraspinous muscle, but Dr. Hoffman found her to have a full range of motion in the left hip, "good extension and good right and left lateral flexion, " and equal and symmetrical reflexes and motor strength. ( Id. ). She was also able to forward flex to the mid-shins and her straight leg raise test was to 85 degrees bilaterally. ( Id. ). Dr. Hoffman diagnosed Plaintiff with low back pain with a "trigger point at the insertion of the left paraspinous muscle" and "chronic myofascial-type pain in the back and hip, " gave her an injection of Depo-Medrol and Lidocaine in her right paraspinous muscle, and suggested she see a pain anesthesiologist. ( Id. ). It appears Plaintiff's worker's compensation attorney recommended she visit Dr. Timothy R. Lubenow, a pain anesthesiologist at the Rush Pain Center of the Rush University Medical Center ("Rush Pain Center"). (R. 471).

Dr. Lubenow performed an initial evaluation of Plaintiff at the Rush Pain Center on January 17, 2008. (R. 459-64). Plaintiff told Dr. Lubenow that she had been experiencing low back pain for about eight years that had progressively worsened until it became "severe" on March 9, 2007, causing her to fall while getting out of bed the next day. (R. 459). She stated that she had received steroid injections in the hips, physical therapy, chiropractic treatments and medication, but nothing helped her pain, leading to some past suicidal thoughts. (R. 459-60). During examination, Dr. Lubenow observed that Plaintiff's straight leg raise test was positive on the left leg, she had trigger points for pain in the lumbar spine in the paraspinal muscles, and her lumbar spine demonstrated "30°/90° flexion, with 0°/35° extension and 10°/30deg; bilateral bending." (R. 460). Plaintiff demonstrated, though with pain, a 4-5/5 for motor strength in the right hip, knee and ankle and a 4/5 for motor strength in the left hip, ankle and knee, and displayed an antalgic, slow gait with problems with her toe and heel walk, although her lower extremities displayed intact sensation and no muscle atrophy. ( Id. ).

Dr. Lubenow also reviewed Plaintiff's MRI, which he stated showed a "mild, broad based, posterior disk osteophyte complex at L4-L5;" a "loss of disk height and decreased signal intensity of the disk substance" and a "broad-based posterior disk osteophyte which minimally narrows the lateral recesses, left greater than right" at L5-S1, but that the "central canal and neuroforamina [sic] appear[ed] adequately patent." (R. 459). Based on his examination and review of Plaintiff's MRI and medical history, Dr. Lubenow diagnosed her with lumbar radiculopathy, myofascial pain and depression; recommended epidural steroid injections, particularly at the L5-S1 intervertebral space; prescribed Zanaflex for pain; sent Plaintiff for a psychological evaluation that same day by a pain psychologist, Dr. Patricia Merriman (whose examination is discussed in more detail, below); and referred her to AthletiCo for aquatic therapy pursuant to Dr. Merriman's recommendation. (R. 461, 517, 520).

On January 25, 2008, Laura Daniels, PT, DPT at AthletiCo assessed Plaintiff prior to beginning the recommended aquatic therapy. Ms. Daniels reported to Dr. Lubenow that Plaintiff was unable to "ambulate without compensations" or lift heavy objects; had strength levels of 3/5 in her left and right hips and knees; and had a "poor" prognosis. (R. 520, 534-53). Shortly after this assessment, Plaintiff applied for SSI on January 31, 2008. (R. 155, 159, 161, 190). A few days later, on February 2, 2008, Dr. Lubenow administered an epidural steroid injection to Plaintiff that she later told him only decreased her pain for one day. (R. 465, 467). Then, at a February 12, 2008 follow-up visit with Dr. Hawkins, after Plaintiff stated that her "unabated" pain was causing her to ...


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