United States District Court, N.D. Illinois, Eastern Division
MARK A. DANIELS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
On April 20, 2007, Mark Daniels filed a claim for disability insurance benefits ("DIB") with the Social Security Administration, alleging that he had become disabled due to a back injury. Doc. 9-6 at 5. The Commissioner denied the claim, Doc. 9-4 at 2, and then denied Daniels's request for reconsideration, id. at 3. Daniels sought and received a hearing before an administrative law judge ("ALJ") pursuant to 20 C.F.R. § 404.914. Doc. 9-3 at 24. The ALJ denied the claim, id. at 11-18, and the Social Security Appeals Council denied Daniels's request for review of the ALJ's decision, id. at 2, making the ALJ's decision the final decision of the Commissioner. See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005). Daniels sought judicial review pursuant to 42 U.S.C. § 405(g). Daniels v. Astrue, No. 10 C 5820 (N.D. Ill. filed Sept. 14, 2010). The district court remanded the case to the Commissioner for further proceedings. 2011 WL 3439269 (N.D. Ill. Aug. 4, 2011).
A new hearing was held on remand before a different ALJ. Doc. 9-10 at 38. The ALJ denied Daniels's claim, id. at 20-31, and Daniels timely filed this action under 42 U.S.C. § 405(g) seeking judicial review of the Commissioner's final decision. Doc. 1; see Doc. 9-10 at 18 ("[i]f [the claimant] do[es] not file written exceptions and the Appeals Council does not review [the] decision on its own, [the] decision will become final on the 61st day following the date of [the] notice"). For the following reasons, the case is remanded to the Commissioner for further proceedings.
The following facts are taken from the administrative record.
A. Factual Background
Daniels was born on November 16, 1958, has a high school education, and speaks English. Doc. 9-10 at 44. He has held jobs as a warehouse forklift operator, locomotive part assembler, and landscaper. Doc. 9-3 at 33-34. He had back surgery in 1988 to repair two cracked vertebrae. Doc. 9-9 at 94. On February 12, 2007, while employed as a laborer assembling train parts, Daniels injured his back lifting a seventy-pound box. Doc. 9-3 at 33.
After his injury, Daniels stayed home from work because he had difficulty moving his back and experienced numbness and tingling in his back and left buttock. Doc. 9-8 at 58. His primary care physician, Dr. Arti Chawla, conducted an MRI scan on February 23, 2007 that revealed "[s]ubtle disc space herniation, left L4-5, with foraminal narrowing." Id. at 49, 69. Dr. Chawla referred Daniels to the Joliet Pain Clinic for treatment with Aubrey Linder, a physician's assistant. Id. at 57. On March 6, 2007, Linder prescribed a short dose of steroids and a muscle relaxer and advised Daniels to "stay off work for two weeks until [his] follow-up appointment." Id. at 76. Daniels reported improvement in his pain levels when he returned on March 22, 2007, and Linder noted he had "mild lower lumbosacral back pain with occasional tingling in that area" and some weakness in his lower left leg. Id. at 77. Linder released Daniels to go back to work full-time on April 2, 2007. Ibid.
A few weeks after returning to work, Daniels could no longer perform his job duties due to numbness in his legs and significant pain. Doc. 9-10 at 22. He has not worked since then, and he contends that he is disabled because of his back injury and depression.
With respect to his depression, Daniels underwent an initial psychiatric evaluation with Dr. Susan Sherman on June 7, 2007 and was diagnosed with "anxious, irritable, major depressive disorder." Doc. 9-8 at 95. He was assigned a Global Assessment of Functioning ("GAF") score of 60, which indicates a moderate impairment in social or occupational functioning. Id. at 96; see Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders 32 (4th ed. text revision 2000). Dr. Sherman prescribed Effexor, a depression medication, and continued to treat Daniels for a year. Doc. 9-9 at 37-39. On June 22, 2007, Dr. Sherman noted that Daniels was "feeling better on 75 mg Effexor, less anxious and irritable, yelling less at his family, getting out a little more." Id. at 39. She observed in September and October 2007 that Daniels was "tired of having to stay around the house because of [his] back pain and inability to drive" and that he was "still agitated a lot, though better on Effexor." Id. at 38. On November 7, 2007 and December 10, 2007, Dr. Sherman indicated that Daniels's "major depression disorder [was] in remission" but recommended that he continue taking his depression medication. Id. at 37. On February 25, 2008, Dr. Sherman found that Daniels's major depression disorder was "in partial remission" and noted that Daniels claimed he was "feeling ok, not depressed but bored." Id. at 132.
On July 2, 2007, Daniels began treatment for his back pain with neurologist Dr. George DePhillips. Doc. 9-8 at 97. Dr. DePhillips observed that Daniels's February 2007 MRI scan "reveal[ed] severe disc degeneration with disc space collapse and narrowing at the L5-S1 level" and "mild to moderate disc degeneration at the L3-L4 level as well as the L4-L5 level." Ibid. He believed that the pain in Daniels's back was related to disc injury at the L5-S1 level and recommended a caudal epidural steroid injection and that Daniels remain off work. Id. at 97-98.
On August 7, 2007, Daniels underwent another MRI scan conducted by Dr. Joseph Hindo, which revealed "[m]ild to moderate degenerative changes of the lumbar spine" and "overall... similar [findings] to the previous MRI of 2/2007." Doc. 9-9 at 11, 76. On September 26, 2007, Daniels returned to Dr. DePhillips for a follow-up evaluation. Id. at 46. Daniels reported that he experienced minimal pain relief after the first caudal epidural steroid injection and that he continued to experience lower back pain radiating into the hips and buttocks. Ibid. Prior to his back injury, Daniels rated his back pain at a two to three out of ten, with ten being the most painful; at the time of his appointment with Dr. DePhillips, Daniels rated his pain at an eight out of ten. Ibid. Dr. DePhillips scheduled another caudal epidural steroid injection and prescribed pain medication. Ibid. He told Daniels to "remain off work at this point in time" and gave him a "disability certificate until his next appointment." Ibid.
On October 29, 2007, Dr. DePhillips saw Daniels for a follow-up appointment. Id. at 45. Four days earlier, Daniels had a third caudal epidural steroid injection, which according to Dr. DePhillips provided "no real relief." Id. at 46. Dr. DePhillips recommended that Daniels begin physical therapy three times per week for three weeks. Id. at 45. Dr. DePhillips noted that Daniels was scheduled for an independent medical evaluation with neurologist Dr. John Shea at Loyola University Medical Center and planned to review Dr. Shea's evaluation as well as Daniels's response to physical therapy at the next appointment. Ibid.
On October 31, 2007, Dr. Shea examined Daniels. Ibid. Dr. Shea reported that Daniels "has pain in his low back" and "loss of strength in the left leg, " and that spinal injections and chiropractic treatment "didn't help, " though "[Daniels] has tried seven different pain medications which have given him some help." Id. at 94. Dr. Shea added that Daniels "can't walk very far" and that "[s]itting for more than 25 minutes and standing bother him." Ibid. That day, Daniels rated his pain at a six out of ten. Ibid. Dr. Shea concluded:
Indeed, the patient could have suffered a back strain related to the work incident he described. I do not feel it caused any permanent neurological deficits. In essence, when I saw this patient he had loss of sensation to pinprick and vibration on the entire left side of the body which would be unrelated to any disc in the neck or the low back. He has normal reflexes with give-way weakness. He has no atrophy. I did not find any objective abnormalities. I do not believe he will need surgery.... As far as his back is concerned, I do not feel he needs any further treatment. As far as his ability to undergo gainful employment, I recommend a Functional Capacities Evaluation (FCE)."
Id. at 96.
On February 6, 2008, Daniels saw Dr. DePhillips for a follow-up evaluation. Id. at 89. Daniels "continue[d] to complain of lower back pain with pain radiating into both lower extremities, " and Dr. DePhillips noted that Daniels "has failed to improve with conservative treatment." Ibid. Dr. DePhillips reviewed Dr. Shea's report, and made the following remarks:
[Daniels] saw Dr. John Shea who felt that his symptoms were related to a lumbar sprain and that he requires no further medical treatment and certainly not surgical intervention. He felt that Mr. Daniels has reached maximum medical improvement. In light of the fact that Mr. Daniels has a history of a fusion at the L5-S1 level which appears to have been aggravated by the injury and in light of the fact that there may be other levels of internal disc disruption L3-L4 and L4-L5, it seems ludicrous to attribute his pain to a muscle sprain which should have improved within 2-3 months of the accident.
Ibid. Dr. DePhillips recommended "lumbar discography to pinpoint the source of [Daniels's] pain and to confirm that he has discogenic pain and mechanical instability that is the cause of his pain and that a stabilization procedure is a reasonable option." Ibid. He stated that Daniels was to remain off work until further evaluation. Id. at 106.
At the next appointment with Dr. DePhillips on April 7, 2008, Daniels "continue[d] to complain of lower back pain which has worsened over the past few weeks." Id. at 88. Dr. DePhillips prescribed two new pain medications and ordered a lumbar discogram, explaining that "[p]rior to agreeing [with Dr. Shea] that this is a lumbar sprain[, ] [he] would like to have a discogram to rule out discogenic pain." Ibid.
Dr. DePhillips saw Daniels again on June 4, 2008, and observed that Daniels's "pain has progressively worsened since his last visit despite the medications." Id. at 86. At the next appointment on July 2, 2008, Dr. DePhillips noted that he "could not obtain a report of the discogram procedure" and that "therefore we have scheduled an appointment... for a second surgical opinion." Id. at 84. On August 19, 2008, Dr. DePhillips noted that Daniels "continue[d] to suffer worsening pain in the lower back radiating into both lower extremities" and ordered a MRI scan on September 8, 2008. Id. at 82.
On September 15, 2008, Daniels saw Dr. DePhillips for another appointment. Id. at 79. Dr. DePhillips observed that the MRI scan "revealed degenerative disc disease from L2-S1, primarily L3-L4 and L5-S1 levels, " and that "[t]here [was] no significant change compared to the previous study [referring to the February 2007 MRI]." Ibid. That day, Dr. DePhillips wrote to Dr. Cary Templin referring Daniels for a "second opinion to obtain [Dr. Templin's] recommendations regarding a need for a multiple level spinal fusion potentially L2-S1." Id. at 80. Dr. DePhillips explained to Dr. Templin that "Daniels has failed conservative treatment thus far" and that they were "considering surgery." Ibid. Dr. DePhillips ultimately obtained a second opinion from Dr. Hurley, not Dr. Templin, on October 25, 2008. Id. at 78. Dr. Hurley did "not believe that a 4 level fusion L2-S1 would be beneficial if he feels the risks of surgery outweigh the benefits in that he does not believe that surgery would relieve [Daniels's] symptoms." Ibid. Dr. Hurley "encouraged [Daniels] to consider other treatment modalities for the pain and possible spinal cord stimulator." Doc. 9-15 at 78.
During an appointment on October 29, 2008, Dr. DePhillips explained to Daniels that "at this point, [Dr. DePhillips] did not feel comfortable proceeding with surgery unless another independent spine surgeon agreed that it is reasonable to proceed, " though "[i]t remain[ed] [Dr. DePhillips's] opinion... that it is reasonable to proceed with a spinal fusion L2-S1 provided that Mr. Daniels has a reasonable expectation in terms of outcome and that there is a 50% chance that his symptoms will not improve or even worsen after the surgery." Doc. 9-9 at 78. Dr. DePhillips added that it was his opinion that "Daniels remains unemployable and disabled." Ibid.
On February 19, 2008, Dr. Barry Free, a state agency reviewing physician, opined that Daniels could lift and/or carry twenty pounds occasionally and ten pounds frequently, and that Daniels could stand and/or walk, as well as sit, for six hours in an eight-hour workday with normal breaks. Id. at 49. Dr. Free also opined that Daniels could frequently balance, kneel, and crouch; occasionally climb ramps/stairs, stoop, and crawl; and never climb ladders/ropes/scaffolds. Id. at 50. In making these findings, Dr. Free referenced only the February 2007 MRI scan, Dr. Chawla's February 2007 notes, and progress reports at the Joliet Pain Care Center from March to April 2007. Id. at 55.
On March 12, 2009, Daniels saw Dr. Alex Ghanayem, a spine surgeon. Id. at 135. After reviewing Daniels's MRI scans, discograms, and radiographs, Dr. Ghanayem stated: "My impression is that Mr. Daniels is not a good candidate for additional surgical intervention despite his discography results. I think he should see one of our chronic pain/comprehensive pain programs such as the ones offered by RJC or MarianJoy. Hopefully they can help him manage his residual ongoing symptoms and maximize his potential since his work injury. He should remain off work in the interim." Ibid.
Upon discontinuing treatment with Dr. DePhillips due to lack of workers' compensation coverage, Doc. 9-10 at 65, Daniels saw Dr. Matthew Ross in 2010 and 2011. Doc. 9-15 at 142-43. Dr. Ross recommended a discogram "in an effort to try to identify a potentially fixable cause for his pain." Id. at 142. The discogram "demonstrated pain at every level tested, " which "indicated [to Dr. Ross] that surgical fusion would not be likely to help Mr. Daniels." Ibid. Dr. Ross believed that Daniels "would be an appropriate candidate for a spinal cord stimulator trial, " but the treatment ultimately provided "only minimal relief." Ibid. On December 29, 2011, Dr. Ross observed that Daniels "continue[d] to experience persisting low back pain with radiation into his legs" and would "require long-term medication therapy for this problem." Id. at 142-43.
On May 14, 2012, Daniels underwent a Functional Capacity Evaluation. Id. at 120. The report stated that "a full duty return to work is not recommended at this time" and that Daniels "demonstrated occasional lifting and frequent lifting/carrying tolerance... at the sedentary physical demand level." Id. at 122. That level allows for occasional lifting and carrying of ten pounds, and occasional stooping, reaching, climbing of stairs, squatting, kneeling, overhead work, and shoulder level work. Ibid. The report made the following observations as to Daniels's "present activity tolerance": "sitting (approximately 15 minutes, then constantly has to move and adjust secondary to increased low back pain and increased numbness of calves/feet), standing (approximately 15 minutes then needs to keep moving ...