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Turner v. Colvin

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

July 22, 2014

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


YOUNG B. KIM, Magistrate Judge.

Martha Turner seeks disability insurance benefits ("DIB"), see 42 U.S.C. §§ 416(i), 423, and supplemental security income ("SSI"), id. §§ 1381, et seq., claiming that she is disabled as a result of degenerative disc disease. After the Commissioner of the Social Security Administration denied her applications, Turner 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, Turner's motion is granted to the extent that the case is remanded for further proceedings and the Commissioner's motion is denied:

Procedural History

Turner first applied for DIB and SSI on December 12, 2007, claiming she was disabled as of September 8, 2007, because of a back injury "resulting from being hit by a large object." (See Administrative Record ("A.R.") 83, 86.) After the Commissioner denied her claims initially and upon reconsideration, Turner sought and was granted a hearing before an administrative law judge ("ALJ"). (Id. at 83.) On September 8, 2009, ALJ Mona Ahmed issued a decision concluding that Turner was not disabled.[2] (Id. at 83-91.)

Turner applied again for DIB and SSI three months later on December 7, 2009, claiming the same disability onset date of September 8, 2007. (Id. at 39, 41.) This second application was also denied initially and upon reconsideration, (id. at 76, 78), and Turner sought and was granted a hearing before another ALJ, (id. at 126, 151). ALJ Curt Marceille held a hearing on May 9, 2011, at which Turner and a vocational expert provided testimony. (Id. at 55.) On May 26, 2011, ALJ Marceille issued a decision finding that Turner is not disabled within the meaning of the Social Security Act and denying her DIB and SSI claims. (Id. at 39-49.) When the Appeals Council denied Turner's request for review on July 31, 2012, (id. at 3-8), the ALJ's denial of benefits became the final decision of the Commissioner, see O'Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010). On December 21, 2012, Turner filed the current suit seeking judicial review of the Commissioner's second decision. See 42 U.S.C. § 405(g); (R. 1, Compl.). The parties have consented to the jurisdiction of this court. See 28 U.S.C. § 636(c); (R. 9).


Turner, who is 51 years old, has had back pain since a September 2007 injury. Turner also suffers from chronic anemia. She has worked various retail jobs, and her last job was as an assistant manager at her sister's popcorn store from May 2006 through July 2009. Despite this work record, she claims that her back pain became disabling on September 8, 2007. Turner presented both documentary and testimonial evidence in support of her claim.

A. Medical Evidence

In September 2007, Turner sought emergency care after an accident involving heavy juice cartons either falling on or striking her back while she stood in line at a store (the specifics of the incident are not clearly described in the record). (A.R. 544.) An MRI showed "degenerative disc disease at L5-S1" and "[l]oss of normal lumbar lordosis." (Id.) Shortly thereafter Turner began seeing chiropractors at Chicago Heights Pain Center. (Id. at 308.) She went for weekly visits from mid-September 2007 through January 2008. (See id. at 313-36.) During that time Turner generally reported experiencing "a lot of pain, " mostly at night, but with occasional improvement using moist heat therapy, electrical muscle stimulation, and home exercises. (See, e.g., id. at 313, 315, 334.)

In January 2008, Turner was referred to Dr. Paul Madison, a pain management specialist. (Id. at 339.) When Turner first saw Dr. Madison, she told him that sharp pain caused her to sleep only two to three hours a night. (Id.) Dr. Madison prescribed Norco and Flexeril, and also performed a lumbar spine MRI which confirmed L5-S1 disc herniation, disc bulging at L4-L5 and L3-L4, and lumbar radiculopathy. (Id. at 339, 341.) Later that month Dr. Madison administered a transforaminal epidural steroid injection and diagnosed Turner with disc protrusion and lumbar neuralgia. (Id. at 342.) Turner reported that the epidural injection reduced, but did not eliminate, her pain. (Id. at 336.)

In April 2008, Dr. Madison noted that while Turner experienced some improvement in her symptoms, she continued to experience severe pain "despite conservative treatment including medication, therapy, and steroid injections." (Id. at 348.) A physical examination showed a positive straight leg test, and Dr. Madison observed that Turner's ambulation was slightly slowed and she had a "crouched forward" posture. (Id.) He recommended a lumbar disc nucleoplasty[3] of L4-L5 and L5-S1. (Id. at 349.) He also noted that Turner was going to discontinue taking Norco because of dizziness associated with the medication. (Id.)

During that April 2008 visit, Dr. Madison also completed a form for the Illinois Bureau of Disability Determination Services ("DDS"). (Id. at 512-13.) He diagnosed Turner with herniated discs at L4-L5 and L5-S1, lumbar neuralgia, and bilateral lumbar radiculitis. (Id. at 512.) He wrote that Turner complained of numbness in her legs and pain and weakness in both her low back and legs caused by standing or sitting for more than 20 minutes, bending forward, and lifting more than 10 pounds. (Id.) He also reported that straight leg raise tests showed evidence of nerve root compression. (Id.) Dr. Madison noted her lumbar spine range of motion was 70 degrees forward and 20 degrees lateral, and described her gait as "slowed" with no assistive device needed. (Id.) He opined that she can only sit or stand for 20 to 30 minute stretches, and then must alternate positions. (Id. at 513.)

Later that April, Dr. Madison performed a nucleoplasty on Turner. (Id. at 379.) In a letter summarizing a follow-up visit, Dr. Madison wrote that Turner sits and moves very slowly and has difficulty standing or walking for an extended period of time. (Id. at 386.) He observed that after being seated for more than 20 minutes, Turner appeared to have significant difficulty standing. (Id.) He added that she exhibited "weakness of dorsiflexion and plantarflexion, " reported mild loss of sensation in her thighs, and had stopped taking Norco due to itchiness. (Id.)

In May 2008, Dr. Madison completed a medical evaluation for the Illinois Department of Human Services ("DHS"). (Id. at 362-63, 365, 374, 386.) He opined that she had "more than 50% reduced capacity" in walking, bending, standing, stooping, climbing, pushing, and pulling during an eight-hour workday. (Id. at 362.) He further found she had 20 to 50 percent reduced capacity for sitting, turning, and performing activities of daily living. (Id.) He observed that she had tenderness, weakness, and mobility limitations of her lumbar spine and lower extremities. (Id. at 363.) He also noted mild sensory loss in her thighs, radicular symptoms, weakness of dorsiflexion and plantarflexion, herniated discs, and muscle spasms. (Id.)

Turner went to the emergency room in June 2008 for swelling in her left ankle. (Id. at 539.) An examination showed no back tenderness, no pain with a straight leg raise test, mild swelling and tenderness in her left foot, and steady ambulation without assistance. (Id. at 540.) Turner was diagnosed with acute non-traumatic swelling of the left ankle and prescribed anti-inflammatory medication. (Id.)

In July 2008, Turner received another epidural steroid injection and Dr. Madison diagnosed her with cervical neuralgia. (Id. at 353.) For about a year afterwards, the record shows no treatment or visits aside from prescription refills. (See id. at 481.) Then in July 2009, Turner went to the emergency room complaining of back pain. (Id. at 522.) She was diagnosed with a herniated disc and sciatica and discharged with medication prescriptions for her pain. (Id. at 523, 525.)

In October 2009, Turner went to the emergency room again for back pain and reported that although she had been taking Vicodin and Flexeril, she ran out of Flexeril several days earlier and had not been taking Vicodin regularly. (Id. at 517.) She also complained of fatigue and said she had not seen a doctor since her surgery the year before. (Id.) A physical exam showed lumbar tenderness, but straight leg raise results were negative and she had "normal range of motion." (Id. at 518.) She was discharged with muscle relaxants and pain medications. (Id.)

Later that month Turner began seeing Dr. Rachel Rubin at Oak Forest Hospital for her lower back pain. (Id. at 548.) Dr. Rubin noted negative straight leg raise results and recommended that Turner continue taking her prescribed medication. (Id.) During a follow-up visit in February 2010, Dr. Rubin reported that Turner went to the emergency room a few days earlier for back pain and a swollen left foot that was "better now." (Id. at 556.) She wrote that Turner had a positive left straight leg raise and "cannot stand or walk for [more than] 10 minutes at a time." (Id.)

In March 2010, Dr. M.S. Patil completed an internal medicine consultative examination for DDS. (Id. at 563.) Turner told Dr. Patil she was receiving physical therapy "on and off, " and had been "doing well" until October 2009. (Id.) She complained of constant low back pain radiating to her legs, as well as intermittent numbness and swelling in her feet. (Id.) During the physical examination, Turner had a normal gait and did not need an assistive device to stand, but she had some difficulty walking on her heels and toes. (Id. at 565.) Dr. Patil noted that Turner had range of motion limitations in her lumbar spine and some difficulty squatting and arising. (Id.) His diagnostic impressions from x-ray imaging included severe disc space narrowing of the L5-S1 intervertebral disc space with sclerosis of the lower half of the L5 vertebral body. (Id.)

In April 2010, Dr. David Mack, a medical consultant, completed a Physical Residual Functional Capacity ("RFC") Assessment. (Id. at 568-75.) He opined that Turner could occasionally lift 20 pounds, frequently lift 10 pounds, stand or walk six hours a day, sit for six hours a day, and perform unlimited pushing and pulling. (Id. at 569.) Dr. Mack referenced Dr. Patil's examination showing Turner's ambulation, strength, reflexes, and sensation were normal. (Id.) Dr. Mack concluded that she could occasionally climb ramps and stairs and stoop, but could never climb ladders, ropes, or scaffolds. (Id. at 570.) He reported no manipulative, visual, communicative, or environmental limitations. (Id. at 571-72.) He believed Turner's statements were "partially credible" because she "indicates severe restrictions due to pain yet ambulation is normal." (Id. at 536.)

Then in May 2010, Dr. Calixto Aquino completed an Illinois Request for Medical Advice form affirming Dr. Mack's Physical RFC Assessment. (Id. at 588-90.) In addition to summarizing Dr. Patil's examination findings, Dr. Aquino referred to a May 2010 record from Dr. Rubin indicating chronic low back pain with sciatica caused by a herniated disc. (Id. at 590.) He noted that Dr. Rubin recorded a positive straight leg raise test, and that it appeared Turner could still lift 20 pounds occasionally and 10 pounds frequently. (Id.) Dr. Aquino concluded that Turner's complaint of having problems sleeping because of pain was credible, but that overall, her claims were still only "partially credible" and that "objective medical evidence" did not support the severity of her statements. (Id.) Although Dr. Aquino did not mention this in his report, Dr. Rubin's May 2010 record also stated that Turner could not work an eight-hour day "in either a seated job or standing." (Id. at 579.)

In August 2010, Turner went back to see Dr. Rubin and reported lower back pain and numbness in her left toes, for which Dr. Rubin prescribed medication. (Id. at 592.) In September 2010, lumbosacral spine radiographs showed "severe intravertebral disc space narrowing at L5/S1" and "facet joint degenerative changes." (Id. at 638.) Turner was referred for physical therapy ("PT") at Oak Forest Hospital, and physical therapist Daniel Halkin noted that Turner complained of severe back pain, sharp pain shooting through her left ankle, aching knees, chest pain, and pain while sitting. (Id. at 628.) Turner also reported "decreased sensation" in her left lower extremity. (Id.) Halkin wrote that Turner demonstrated generalized pain symptoms and would require PT ...

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