United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JEFFERY COLE, District Judge.
The plaintiff, Maria Fratantion, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Title II and XVI of the Social Security Act as amended ("Act"), 42 U.S.C. §§ 423(d)(2); 1382(a)(1)(B). Ms. Fratantion asks the court to reverse the Commissioner's final decision, or in the alternative, remand the case for further review. The Commissioner seeks an order affirming the decision.
Ms. Fratantion applied for SSI and DIB on August 21, 2009, alleging that she had been disabled since April 1, 2007 due to intractable lower back and hip pain. (Administrative Record ("R.") 39, 41, 80, 142, 177). Her application was denied initially on December 1, 2009, and upon reconsideration on April 14, 2010. (R. 15, 80, 81, 82-86, 88-91). Ms. Fratantion continued pursuit of her claim by filing a timely request for hearing on May 10, 2010. (R. 15, 96-97, 99, 100-101).
An Administrative Law Judge ("ALJ") convened a hearing on November 17, 2010, at which Ms. Fratantion, represented by counsel, appeared and testified. (R. 15, 33, 120-124, 126-131). In addition, Grace Gianforte testified as a vocational expert, and Leah Fratantion, Ms. Fratantion's daughter, testified on her mother's behalf. (R. 15, 33, 64-68). On January 6, 2011, the ALJ issued a decision finding Ms. Fratantion not disabled because although she could no longer perform her past work as a food server and preparer, she could perform sedentary work as a security monitor; addresser; and document preparer. All of which existed in significant numbers in the national economy. (R. 15, 20, 28-29); see 20 C.F.R. §§ 404.955; 404.981. This became the final decision of the Commissioner when the Appeals Council denied Ms. Fratantion's request for review of the decision on March 2, 2011. (R. 1-6). Ms. Fratantion appealed that decision to the federal court under 42 U.S.C. § 405(g) and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).
THE EVIDENCE OF RECORD
The Vocational Evidence
Ms. Fratantion was born on December 2, 1962, making her forty-seven years of age at the time of the ALJ's decision. (R. 39, 80, 163). She is approximately 5' 7", and at the time of the hearing, weighed two hundred and thirty-one pounds. (R. 363, 416). She graduated high school, took two years of general college courses, and she is able to communicate in English. (R. 39, 176). Ms. Fratantion worked a handful of different jobs before her medical ailments caused her to cease working. These jobs included a magazine merchandiser from 1999 to 2000, a retail sales clerk selling bath products from October 2002 to January 2003, and as a food server/preparer in elementary and high school cafeterias from 2004 to 2007. (R. 39-40, 166-170, 178-179). As a magazine merchandiser, she would deliver and stock new magazine orders at various stores throughout her community. (R. 168-169, 178). This required Ms. Fratantion to lift large bundles of new and old magazines, as well as significant amounts of kneeling, stooping, and crouching. (R. 168-169). In October 2002, she took a seasonal job as a retail clerk at a bath products store during the Christmas holiday season. (R. 169-170). Ms. Fratantion explained that the job was not difficult: she stood for eight hours each day, five days a week, and lifted supplies baskets weighing approximately ten to fifty pounds. (R. 169-170).
Ms. Fratantion most recently worked for Sodexo as a food server/preparer which required frequent lifting of cases of meat, cheese, lettuce, tomatoes, and pots and pans weighing twenty-five to fifty pounds. (R. 167-168, 178-179). She had to stand, walk, and handle large objects for seven and one half hours per day. (R. 167-168, 178-179). This put a lot of strain on her body and she eventually stopped working because "she couldn't stand the pain anymore." (R. 177).
The Medical Evidence
On October 16, 2008, Ms. Fratantion woke up in the morning with severe hip and lower back pain. (R. 41-42). She was examined at Edward Hospital ("Hospital") in Naperville, Illinois, and the emergency physician's report indicated that her left hip pain began four days prior. (R. 285). She was diagnosed with bursitis in the past and alleged some flare ups, but none causing such severe pain. (R. 285). She reported no numbness or weakness, however, the pain radiated from her lower left midline, and radiated through her buttocks, and down the entire left leg. (R. 285). X-rays revealed significant degenerative change with disk space narrowing in her lower back, while the hip showed no obvious fracture or degenerative changes. (R. 286). The emergency physician, Dr. Sims, provided Ms. Fratantion with narcotic pain medication and anti-inflammatories, which resulted in "very good improvement of her symptoms" as she was up and ambulating in the hallway. (R. 286). Upon discharge, Dr. Sims diagnosed her with sciatica, and recommended warm compresses, rest, a follow-up examination with her primary care physician, and narcotic pain medications. (R. 286). Dr. Sims instructed Ms. Fratantion that further action such as imaging, specialist consultation, or physical therapy may become necessary. (R. 286).
Ms. Fratantion saw Dr. Rabin, a neurosurgeon, on November 5, 2008, because her lower back pain persisted. (R. 333). Dr. Rabin reported that a recent MRI indicated mild-to-moderate spinal stenosis at L4-L5, and to a lesser degree at L3-L4. (R. 333). Her neurologic examination revealed her strength to be five-out-of-five in all muscle groups tested, her reflexes to be bilaterally symmetric, no evidence of clonus or spasticity; her hip evaluation was unremarkable. (R. 333). However, Dr. Rabin noted that she admitted to walking in a stooped position consistent with spinal stenosis. (R. 333). This led to a thorough discussion of the possibility of proceeding with a decompressive laminectomy to alleviate her symptoms. (R. 333).
Ms. Fratantion underwent a decompressive lumbar laminectomy, L3-S1, on November 25, 2008, performed by Dr. Rabin. (R. 22, 42, 80, 81, 86, 91, 177). The operative report indicated tighter stenosis than originally diagnosed, predominately at L4-L5, but Ms. Fratantion tolerated the procedure well. (R. 287, 345-346). Dr. Aliga performed a postoperative consultation on Ms. Fratantion and reported that her left thigh pain had improved since surgery yet she still experienced some numbness on the right side, as well as lower extremity weakness and pain that was likely reactive radiculopathy. (R. 289-291). Treatment notes indicated that she was able to ambulate with a walker with minimal assistance as well as perform hygiene routines on both her upper extremities with minimal supervision, and lower extremities with moderate assistance. (R. 289). Following surgery, Ms. Fratantion spent approximately a week and a half in an acute rehabilitation center to receive twenty-four hour care for her wound to ensure proper healing and avoidance of any complications. (R. 290-291).
Ms. Fratantion returned to the Hospital on December 7, 2008, complaining of a high fever. (R. 22, 292). She reported to Dr. Sims that she had awakened in the morning to a large amount of bloody drainage coming from her surgical wound, and that the incision was causing some discomfort. (R. 292). Dr. Rabin examined Ms. Fratantion, and noted that her preoperative symptoms in her legs were resolved, her strength was fully intact; however, she had a fever of 102°, and there was wound drainage. (R. 295). Dr. Augustinsky followed up with an infectious disease consultation and reported Ms. Fratantion's pain had markedly improved, but the incision had begun causing discomfort. (R. 296, 332). Dr. Augustinsky concluded that her wound was infected, and recommended re-exploration surgery followed by prolonged intravenous antibiotics to combat the infection. (R. 297).
Dr. Rabin performed re-exploration surgery which revealed gross infection with necrotic debris above the fascial layer caused by staph aureus infection. (R. 270, 299-301, 304). Dr. Rabin successfully debrided the infected tissue and Ms. Fratantion was later discharged from the Hospital on December 16, 2008, in stable condition. (R. 304, 309, 343). However, approximately two weeks later, she saw Dr. Sayeed at DuPage Valley Pain Specialists complaining of lower back pain near the incision site, and numbness down both legs towards the knees. (R. 336, 338). Dr. Sayeed indicated that her worst symptoms were in her lower back region. (R. 336, 338). The record indicates that her motor strength was five-out-of-five and equal in hip flexion, knee extension, as well as dorsiflexion and plantar flexion in both lower extremities. (R. 337, 339). Subsequently, Dr. Sayeed increased her pain medications, but noted that she would follow up in two weeks and, at that time, he would initiate reduction of her medications. (R. 337, 339).
Ms. Fratantion saw Dr. Rabin five more times in January 2009, complaining of drainage and discomfort at her incision site. (R. 327-331). Dr. Rabin monitored the incision site for a few weeks before suggesting a procedure to remove the Vicryl suture, which he believed to be the cause of the discomfort. (R. 327-331). Instead, Ms. Fratantion decided to see the Edward Wound Clinic for an examination of the wound. (R. 327-331). Her wound care progress note from February 3, 2009, indicated some drainage from the wound site as well as chronic pain. However, Dr. Hahm reported the wound was almost fully healed. (R. 307-308, 340-341, 432-433). Dr. Rabin reported that the wound properly healed, that she no longer had pain at the incision site, that she was walking better, and that her symptoms have improved. (R. 325, 326, 342).
Shortly thereafter, Ms. Fratantion returned to Dr. Rabin's office complaining of pain in her leg and lower back pain she had not experienced prior to surgery. (R. 324). Dr. Rabin opined that the symptoms most likely resulted from irritation caused by the infection, and recommended she begin physical therapy. (R. 324). Ms. Fratantion's pain persisted and on April 14, 2009, her primary care physician, Dr. Rozner, ordered an MRI of her lower back. (R. 322, 323, 426-427). The MRI appeared largely unremarkable and revealed no areas of abnormal enhancement, no disk herniations, or evidence of stenosis. (R. 323, 436). At this time, Dr. Rabin reported that Ms. Fratantion continued to make progress, show improvements in her lower back pain, and that her strength was intact. (R. 323).
Ms. Fratantion began seeing Dr. Mikuzis, a physician, at Action Physical Medicine and Rehabilitation. (R. 377). Between May 13, 2009, and October 1, 2009, she saw Dr. Mikuzis nine separate times. (R. 360-380). During each visit, she indicated that she was still suffering from chronic lower back pain, numbness down her right leg, issues ambulating, joint pain, as well as muscle pain and weakness. (R. 360-380). Dr. Mikuzis continued Ms. Fratantion on a variety of pain medications as well as prescribed physical therapy. (R. 377).
On June 7, 2009, Ms. Fratantion had a near fall in the grocery store which aggravated her back pain. (R. 322, 370-372). Ms. Fratantion proclaimed that her back pain was significantly worse since the incident, and that the incident negated any progress she had made to date in physical therapy. (R. 368-369, 370, 372). So, on July 23, 2009, Ms. Fratantion was referred to a new physical therapist at Action Physical Therapy. (R. 382). Her initial evaluation indicated that subjectively she was in constant pain with intensity varying from ten-out-of-ten in the mornings to five or seven out of ten throughout the day upon taking her pain medications. (R. 382).
Objective evaluation revealed signs and symptoms associated with significant muscular restriction, decreased trunk stabilization, decreased flexibility, and decreased trunk range of motion ("TROM") consistent with her diagnosis of lumbago, herniated disc, and status post-surgical repair. (R. 382). She saw the physical therapist two to three times a week until September 24, 2009, and reported to Dr. Mikuzis that the physical therapy sessions as well as pain medications had helped manage her pain. (R. 362, 364, 383, 384-385). Ms. Fratantion's discharge evaluation reported no overall improvements in her pain, however, she did demonstrate improvement in objective measurements of TROM, flexibility, and trunk stabilization. (R. 383-385).
Upon further review of the record, Dr. Richard Bilinsky, the State agency medical consultant, completed Ms. Fratantion's physical residual function capacity ("RFC") assessment on November 20, 2009. (R. 386-393). He found that Ms. Fratantion could occasionally and frequently lift ten pounds, frequently climb ramps and stairs, as well as occasionally climb ladders, ropes, or scaffolds. (R. 387-388). He also determined that Ms. Fratantion could stand and walk for at least two hours in an eight hour work, as well as sit for at least 6 hours during an eight hour work day. (R. 387). Additionally, Ms. Fratantion's ability to push and pull were unlimited with no manipulative limitations, and she could occasionally kneel, stoop, crouch, and crawl. (R. 387-389). Dr. Bilinsky considered her allegations credible; however, the Medical Evidence of Record ("MER") did not support her limitations noted in the Activities of Daily Living ("ADL") report, and her MRI indicated good spinal alignment. (R. 393).
On December 16, 2009, Ms. Fratantion reported to the Hospital complaining of severe back pain that was intensified by bouts of coughing. (R. 436). She reported that the pain radiated across her lower back and down into both legs. (R. 437). A physical examination revealed increased pain with straight leg raises despite normal lower extremity strength and she was prescribed intravenous Dilaudid to alleviate the pain. (R. 437). Dr. Rabin order another MRI which revealed no gross compressive lesions. (R. 438, 440). He also reported that she presented no gross abnormalities on exam, and her strength was again five out of five. (R. 440). Dr. Mochel examined her flexion/extension x-rays and concluded that her major complaint stemmed from her lumbar spine, and that hip surgery was unnecessary. (R. 441-442). Dr. Rozner also examined Ms. Fratantion and reported that despite her hip pain, she was "doing well." (R. 443-444, 445).
On January 26, 2010, Dr. Schafer of the Northwestern Medical Faculty Foundation, provided a second opinion on the cause of her "severe and excruciating" lower back pain. (R. 399-401). Dr. Schafer reported that she had in fact progressed with physical therapy until her incident at the grocery store, and that an MRI with gadolinium was needed because her previous MRI scan was very difficult to interpret due to all the scar tissue. (R. 400-401). The February 15, 2010, Lumbar MRI revealed that Ms. Fratantion's vertebral alignment was within normal limits, postsurgical changes consistent with bilateral L4 and L5 laminectomies with enhancing scar tissue in the soft tissues posterior to the thecal sac at L4 and L5; mild bilateral subarticular stenoses, as well as mild right and mild to moderate left neural foraminal stenoses at L4-L5, and mild bilateral facet degenerative changes at L3, L4, L5. (R. 404-405).
Ms. Fratantion met with Dr. Schafer a third time on March 3, 2010, to discuss the results of the aforementioned MRI. (R. 398). During this visit, Dr. Schafer discussed with Ms. Fratantion and her husband that her primary problem was related to evidence of instability at L4 and L5, as there was evidence of degenerative spondylolisthesis. (R. 398). Dr. Schafer recommended fusion surgery from L3 down to the sacrum, but opined that "the canal does not need to be decompressed in any way, shape, or form." (R. 398). Moreover, Dr. Schafer indicated that the high risk spine team should handle such a procedure, however, surgery would have to wait until she was completely cigarette free for two months. (R. 398).
Following her third visit to Dr. Schafer, Ms. Fratantion had her medications refilled twice by Pain Centers of Chicago, LLC on March 8, 2010, and April 5, 2010. (R. 411-414). The progress notes dated March 8, 2010, indicated that Ms. Fratantion experienced some pain relief with medications without any side effects, however, radicular symptoms, numbness, and spasms persisted. (413). Her pain levels were five out of ten at their best and ten out of ten at their worst. (R. 413). Objective findings indicated that she ambulated without assistance, she was oriented, and her consciousness was intact. (R. 414). Diagnosis was post-laminectomy syndrome in the lumbar spine region, and the pain specialist increased her Neurontin, continued the Valium and Percocet, added Zanaflex for the spasms, and changed her fentanyl patch. (R. 414).
During the April 5, 2010, visit, Ms. Fratantion reported her pain was increasing over the last four to five days due to financial stress and the prospect of losing her home. (R. 411). She reported that the Zanaflex was helping with the spasms but made her drowsy, and the Duragesic patch was working well with being changed every forty-eight hours, and reported pain scores ranging from six to ten out of ten. (R. 411). Objective findings were consistent with her previous visit and the pain specialist recommended medication refills twice a month. (R. 412).
Dr. George Andrews, a second State agency medical consultant, affirmed Dr. Bilinsky's prior RFC determination on April 12, 2010. (R. 452-454). Dr. Andrews found that upon reconsideration Ms. Fratantion's MRI dated February 16, 2010 was consistent with bilateral L4 and L5 laminectomies. (R. 454). Moreover, Dr. Andrews also determined that the ADLs appeared generally credible before affirming Dr. Bilinsky's November 20, 2009, RFC. (R. 454).
In a letter dated November 16, 2010, one day before the ALJ hearing, Ms. Fratantion visited Dr. Rozner for a letter of disability. (R. 456). Dr. Rozner's letter stated that she was "doing HORRIBLY, " and in significant pain yet it responded to pain medications. (R. 456) (emphasis in original). He also noted that Ms. Fratantion had lots of problems moving around the house and "MUST use a cane frequently, " and she had problems with her hands making fine manipulation difficult. (R. 456) (emphasis in original). Dr. Rozner noted her primary problem was her back pain, which would eventually require the planned lumbar fusion, however, he also noted concerns that she was developing a progressive cervical related problem in her hands, neck disorder symptoms, as well as still suffering from tobacco use disorder, but she was "doing VERY well." (R. 457) (emphasis in original).
The record remained open upon the conclusion of the hearing. (R. 15). Although Ms. Fratantion did not specifically request this, she did submit evidence following the conclusion of the hearing, which the ALJ accepted and considered. (R. 15).
The Administrative Hearing Testimony
At the administrative hearing, Ms. Fratantion's attorney argued that she was disabled to due spinal stenosis, her laminectomy, and subsequent complications from her laminectomy that resulted in staph infection. (R. 77). Moreover, he argued that these conditions satisfy Listing 1.02, Major Dysfunction of a Joint Due to Any Cause, as well as Listing 1.04, Disorders of the Spine. (R. 77). He indicated that she is in significant pain which caused her persistent struggles with daily functions, and that she "certainly would not be able to engage in any substantive, gainful employment - even at the sedentary level." (R. 78).
The Plaintiff's Testimony
Ms. Fratantion testified that she originally hurt herself on April 1, 2007, and as a result of her injury underwent a decompressive laminectomy. (R. 39, 42). She further indicated that she had a valid driver's license, she had completed two years of general college courses, and had not worked since her alleged onset date. (R. 39).
Ms. Fratantion testified that her most recent job was working for the food service company, Sodexo, where she served/prepared lunches at Plainfield South High School from 2004 to 2007. (R. 39, 53). At Plainfield South High School she prepared the meals for the elementary and junior high school students which required her to lift serving pans weighing forty to fifty pounds. (R. 52). Additionally, the job required her to stand for six hours because there "was nowhere to sit, " unless you took a lunch break, which was only after all the kids were served. (R. 53).
Ms. Fratantion also answered a number of questions from the ALJ regarding her limitations. She maintained that she was going to the pain clinic every two months for medication refills, that the only medication side effect is drowsiness caused by Tizanidine, and that she had trouble walking. (R. 41). Additionally, she indicated that she had difficulties performing normal daily activities such as: bending over to retrieve clothes from the dryer; walking two house down the street; going to the grocery store to get milk, and bread has become difficult because she can only lift a gallon of milk with both hands; and general household chores are difficult because she has to constantly rest. (R. 43-44). When asked how long she could sit comfortably, Ms. Fratantion responded that she can only sit comfortably in her recliner chair for approximately fifteen to twenty minutes at a time before having to stand. (R. 44-45). Once standing, she testified that she can only walk for a half an hour at most, and when at the store has to have a cart or her cane for added stability. (R. 45). She indicated that she started using the cane more frequently during the day within the last month prior to the hearing, but always used the cane in the mornings. (R. 45).
She also testified that within the last two to three months her hands had begun to feel numb. (R. 46). However, she can still zip, write, handle light objects, and button shirts. (R. 46). Further, she claimed she paid her bills on the computer, but could only work at twenty minute intervals before needing a rest. (R. 46). When asked about her ability to independently perform personal grooming: shaving, showering, combing her hair, putting on clothes, etc., Ms. Fratantion testified that the only difficulty she encountered was drying her hair, which she "usually has [her] girls do." (R. 46). Ms. Fratantion also ...