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Kimak v. Colvin

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

May 2, 2014

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


YOUNG B. KIM, Magistrate Judge.

Dwayne Kimak suffers from what he describes as completely debilitating back pain stemming from the combined impact of a failed spinal surgery, degenerative disc disease, and a workplace injury. Kimak claims that in addition to-and in part, because of-his physical pain, he experiences serious depression and anxiety. Claiming that these conditions make it impossible for him to work, Kimak filed an application for disability insurance benefits ("DIB"), see 42 U.S.C. §§ 416(i), 423. After the Commissioner of the Social Security Administration denied his application, Kimak filed this suit seeking judicial review, see 42 U.S.C. § 405(g). Before the court are the parties' cross motions for summary judgment. For the following reasons, Kimak's motion is granted and the Commissioner's is denied:

Procedural History

Kimak applied for DIB and a period of disability on October 31, 2008, claiming a disability onset date of August 1, 2008. (Administrative Record ("A.R.") 27.) After his claims were denied initially and upon reconsideration, (id. at 88-91), Kimak sought and was granted a hearing before an administrative law judge ("ALJ"), (id. at 152-57). The ALJ held a hearing on June 15, 2011, at which both Kimak and a vocational expert testified. (Id. at 43-87.) On August 5, 2011, the ALJ issued a decision finding that Kimak is not disabled within the meaning of the Social Security Act and denied his claim for benefits. (Id. at 27-37.) When the Appeals Council denied Kimak's request for review, (id. at 1-6), the ALJ's denial of benefits became the final decision of the Commissioner, see Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013). On September 12, 2012, Kimak filed the current suit seeking judicial review of the Commissioner's decision. (R. 1); see 42 U.S.C. § 405(g). The parties have consented to the jurisdiction of this court. (R. 10); see 28 U.S.C. § 636(c).


Kimak's claims have their foundation in what he describes as a failed spinal fusion surgery that he underwent in 1996, leaving him with a nonfunctioning titanium-based bone stimulator in his lumbar spine. For years following the surgery he was able to perform electronic circuitry and repair work, but he claims that in 2005 he injured his back while lifting something at work and has had significant back pain ever since. He attributes his ability to work for three years after the injury to a sympathetic employer who allowed him to work reduced hours and take frequent breaks. That leniency persisted until August 1, 2008, when Kimak says his employer finally let him go because he was unable to perform the duties required of him. He has not worked since. At his hearing before the ALJ, Kimak presented both testimonial and documentary evidence in support of his DIB claim.

A. Medical Evidence

On almost a monthly basis between November 2005 and June 2009, Kimak received treatment for his back pain from pain specialist Dr. Zaki Anwar. In November 2005 Dr. Anwar noted that Kimak's back pain-which he had previously controlled with opioid medication-had been exacerbated when he injured himself while lifting something at work. (A.R. 357-58.) Anwar physically examined Kimak, observing that he had a titanium-based bone stimulator in his lower left lumbar area. (Id. at 358.) He also noted that Kimak had significant tightness in his paraspinal muscles, significant reduction in his straight-leg raising test, difficulty walking and standing, and abnormal posture and balance. (Id.) Dr. Anwar recommended that Kimak receive an epidural steroid injection and increase his morphine dose, and instructed him to stay off work until he could get a CT scan. (Id.) A month later Kimak received the recommended epidural injection and reported a slight reduction in his pain. (Id. at 365.) Kimak told Dr. Anwar that he would like to go back to work with some restrictions, and Dr. Anwar endorsed that approach and instructed him to continue taking morphine. (Id. at 353-55.)

Dr. Anwar's treatment notes reflect that between January 2006 and June 2007, Kimak struggled to find significant relief from his back pain. (See, e.g., 341-52, 409-14.) Dr. Anwar diagnosed him as having "significant" lumbar post-laminectomy syndrome, lumbar strain, failed back surgery syndrome, and lumbar radiculitis. (Id. at 333, 336, 345-48.) In his physical examination notes Dr. Anwar reported tightness in Kimak's paraspinal muscles and tenderness in his psoas muscles. (Id. at 348.) He observed Kimak walking with an antalgic gate and having postural issues. (Id. at 410.) Dr. Anwar also observed that Kimak experienced "significant spasms" which were "getting worse with time." (Id. at 339.)

Dr. Anwar's notes from this period reflect that Kimak experienced some temporary relief with epidural injections, but his low-back pain would always return. Dr. Anwar observed that Kimak's scar tissue was making it difficult to infiltrate medication into the epidural space. (Id. at 348.) He noted that additional surgery was not an option for Kimak because there was a risk that it would debilitate him more. (Id. at 346.) Accordingly, he turned to a treatment called "caudal adhesiolysis under fluoroscopy." (Id. at 345.) The record reflects that Kimak experienced some improvement with that treatment, but again the relief was temporary, lasting no more than three weeks. (Id. at 409-10.) Dr. Anwar also treated Kimak throughout this period with pain medications including OxyContin and morphine sulfates. (R. 330, 332, 336.) But having explored these treatment avenues, in the spring of 2007 Dr. Anwar observed that Kimak had achieved "pretty much maximum medical improvement" and would need continuous treatment with pain management and caudal adhesiolysis from time to time. (Id. at 410.)

Dr. Anwar's treatment notes from this period are also replete with observations of how Kimak's on-going pain impacted his mental state. In May 2006 Dr. Anwar noted that Kimak was having significant difficulty dealing with his pain and that he was experiencing severe depression and/or anxiety. (Id. at 345.) He described Kimak as "unable to function and focus, " as being "mentally tired, " and as needing psychiatric care. (Id. at 343.) He wrote that Kimak was seriously depressed and unable to sleep. (Id. at 341.) There is corroborating record evidence of his depression in the form of the treatment notes from Dr. Bodipotti, a psychiatrist who saw Kimak from 1997-2009. (Id. at 684-95.) Although her handwritten notes are so difficult to read that they are of limited utility here, they show that Kimak saw her periodically to deal with his depression and anxiety. (Id.)

Beginning in late August 2007 and lasting through April 2008, Dr. Anwar's notes reflect what might be characterized as more positive results from Kimak's pain treatment. In August 2007 Dr. Anwar switched him to duragesic patches, which managed Kimak's pain "fairly successfully." (Id. at 405.) During that period Dr. Anwar noted that Kimak reported "less intense low back pain." (Id. at 398-406.) Dr. Anwar also noted that Kimak was experiencing less breakthrough pain (sudden, temporary flares of severe pain) and was responding well to the duragesic patches. (Id.) At the same time, Dr. Anwar noted that Kimak still needed to change his duragesic patch every 48 hours and that there was a need to wean him off of Vicodin and morphine. (Id. at 398.) He also characterized Kimak as having a "restrictive work capacity, " noting that he could only work for three to four hours a day. (Id. at 399-401.)

Beginning in May 2008 Kimak once again began describing his pain to Dr. Anwar as being "intense." (Id. at 397.) He had recently gained weight and had been diagnosed with diabetes. (Id. at 394.) In the summer of 2008 Dr. Anwar became concerned when Kimak presented with a distended abdomen, discolored eyes, and increased pain. (Id. at 392.) By September 2008 he noted that Kimak was "not responding very well" to changes in his opioid medications and was getting less relief from the duragesic patches. (Id. at 390.) He completed a work status report for Kimak in December 2008 in which he opined that Kimak was permanently unable to return to work. (Id. at 367.) But by the spring of 2009, Dr. Anwar again noted that Kimak's back pain was less intense and that he was responding well to changes in his medications. (Id. at 439, 441.) In the last of his treatment notes available in the record, Dr. Anwar suggested a return to lumbar caudal epidural steroid injections, characterized Kimak as a good candidate for morphine sulfate and for restarting duragesic patches, and noted that he had improved as much as medically possible. (Id. at 439-40.)

There is a gap in the treatment record from June 2009 until January 2011, when a new pain specialist, Dr. Cheema, submitted a letter on Kimak's behalf recommending that he be found eligible for disability benefits. (Id. at 680.) According to Kimak, he began seeing Dr. Cheema on a monthly basis in September 2010. (Id. at 297.) Dr. Cheema diagnosed Kimak as having debilitating back pain with grade four anterolisthesis of L5 on S1. (Id. at 680.) He predicted that Kimak's condition will only deteriorate, causing worsening pain and decreased mobility. (Id.) He opined that Kimak would never be able to return to meaningful employment and wrote that he requires "very strong narcotic pain medications" just to get through the day. (Id.)

The Commissioner asked a number of consulting doctors to weigh in on the extent of Kimak's impairments and their impact on his ability to function in the workplace. In March 2009 clinical psychologist Dr. Erwin Baukus spent one hour examining Kimak. (Id. at 456-60.) He wrote that Kimak walked with a cane and reported chronic severe back pain. (Id.) Kimak also reported depressive symptoms like loss of interest in activities, decreased energy, and trouble sleeping, concentrating, and thinking. (Id. at 457.) He also had persistent anxiety and recurrent severe panic attacks. (Id. at 458.) Dr. Baukus diagnosed him as having chronic pain disorder with psychological factors. (Id. at 460.) The next day Kimak was evaluated by internist Dr. Dinesh Jain, who wrote that Kimak was not in any acute distress and displayed normal grip strength and fine manipulation, and had a normal range of motion in his lower extremity joints and cervical spine. (Id. at 465-67.) But he also observed that Kimak's range of motion in his lumbosacral spine was decreased to 40-50 degrees in flexion, and he had positive straight-leg raises. (Id. at 467.) Kimak had "severe difficulty" getting on and off the table because of his pain, and displayed moderate difficulty with tandem walking, walking on his toes and heels, and squatting. (Id.)

That same month two consulting doctors submitted residual functional capacity ("RFC") assessments describing Kimak's limitations based on their review of his medical file. Dr. Richard Bilinsky opined that Kimak can sit for six hours and stand and/or walk for at least two hours in an eight-hour day and that he had no manipulative limitations. (Id. at 469-71.) He wrote in the narrative portion of his report: "Credibility issue on many levels especially concerning physical and mental limitations cause of pain." (Id. at 473.) Carl Hermsmeyer, Ph.D., submitted a psychiatric RFC report opining that Kimak has moderate difficulties in social functioning and in maintaining concentration, persistence, or pace. (Id. at 486.) Expanding on that opinion Dr. Hermsmeyer checked boxes saying that Kimak is moderately limited in his ability to carry out very short and simple instructions, to maintain attention and concentration for extended periods, to perform activities within a schedule, and to maintain regular attendance and punctuality. (Id. at 490.) Dr. Hermsmeyer further explained that Kimak "retains the mental capacity to perform simple one and two-step tasks at a consistent pace." (Id. at 492.) On March 30, 2009, a case worker reviewed the RFC reports and wrote that Kimak maintains the ability to engage in sedentary occupations. (Id. at 216.)

There are a number of additional opinions about the limiting effects of Kimak's impairments that were submitted to the Social Security Administration between July and December 2009. In July 2009 Dr. Anwar submitted a letter noting that he had been treating Kimak for four and a half years and that Kimak suffers from intractable pain. (Id. at 452.) Dr. Anwar described Kimak as "extremely limited" and opined that he is unable to bend, reach, use his hands, or lift more than 10 pounds. (Id.) He further opined that Kimak can sit for only 30 to 45 minutes and stand for only 30 minutes at a time. (Id.) He said that the side effects of Kimak's medications reduce his cognitive ability and exacerbate his fatigue, and that he is likely to grow increasingly impaired. (I ...

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