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Solleveld v. Colvin

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

August 20, 2014

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


YOUNG B. KIM, Magistrate Judge.

Gladys Solleveld seeks disability insurance benefits ("DIB"), see 42 U.S.C. §§ 416(i), 423, claiming that she is disabled as a result of a herniated disc and asthma. After the Commissioner of the Social Security Administration denied her application, Solleveld filed this suit seeking judicial review. See 42 U.S.C. § 405(g). Before the court are the parties' cross-motions for summary judgment. Solleveld's motion is granted to the extent that the case is remanded for further proceedings and the Commissioner's motion is denied for the following reasons:

Procedural History

Solleveld applied for DIB on November 12, 2009, claiming she was disabled as of July 18, 2008, because of a herniated disc and a history of asthma. (See Administrative Record ("A.R.") 39, 108-09.) After the Commissioner denied her claim initially and upon reconsideration, (id. at 55, 61), Solleveld sought and was granted a hearing before an administrative law judge ("ALJ"), (id. at 67, 77). A hearing was held on June 1, 2011, at which Solleveld, her father Don Billings, and a vocational expert ("VE") provided testimony. (Id. at 11-36.) The ALJ issued a decision finding that Solleveld is not disabled within the meaning of the Social Security Act and denying her DIB claim. (Id. at 39-50.) When the Appeals Council denied Solleveld's request for review, (id. at 1-6), 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 20, 2012, Solleveld filed the current suit seeking judicial review of the Commissioner's 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).


Solleveld, who is 49 years old, has suffered from back pain since March 2007 and has had asthma since childhood. She held various retail jobs before applying for DIB and last worked in a sandwich shop for about a month in 2009. Solleveld claims that her back pain and asthma became disabling on July 18, 2008. She presented both documentary and testimonial evidence in support of her claim.

A. Medical Evidence

From December 2006 through October 2010, Dr. Michael Harney, D.O., treated Solleveld for her back conditions and asthma. His notes indicate that in December 2006 Solleveld pulled a muscle in her back, and in March 2007 she experienced back pain and acute muscle spasms after jumping on a trampoline. (A.R. 252-53.) In November 2009, Solleveld went to the emergency room complaining of back pain radiating down her left leg. (Id. at 217.) Shortly thereafter, Dr. Harney diagnosed Solleveld with lumbar pain and neuritis and ordered an MRI. (Id. at 222.) The MRI showed mild disc bulging at L2-L3 and L3-L4, as well as mild right neuroforaminal narrowing at L3-L4 "due to lateral disc bulging and endplate spurring." (Id. at 225.) The radiological report impressions included "moderate left neuroforaminal stenosis at L4-L5 due to a foraminal protrusion" and "mild lumbar spondylosis." (Id. at 225, 227.)

Throughout roughly four years of treating Solleveld, Dr. Harney performed numerous back manipulations, (see, e.g., id. at 239-42, 244, 247, 285, 304), noted her use of a cane on several occasions, (id. at 241, 243, 245-46, 250-51), and prescribed Vicodin, Norco, Flexeril, and other pain medications as often as once every one or two weeks, (see, e.g., id. at 238-44, 247-52). He also prescribed Symbicort and Singulair for Solleveld's asthma. (Id. at 244-45, 249, 253.)

In January 2010, state agency medical consultant Dr. Henry Rohs conducted a physical residual functional capacity ("RFC") assessment of Solleveld in connection with her application for DIB. (Id. at 261-68.) Based on his review of her medical records, Dr. Rohs concluded that Solleveld could occasionally lift 20 pounds, frequently lift 10 pounds, stand or walk for six hours a day, sit about six hours a day, and perform unlimited pushing and pulling. (Id. at 262.) He opined that she could occasionally climb ladders, ropes, and scaffolds, but should avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation because of her asthma. (Id. at 263, 265.) Dr. Rohs found no evidence of manipulative, visual, or communicative limitations. (Id. at 264-65.) He noted that an MRI and x-rays indicated moderate left neuroforaminal stenosis and mild lumbar spondylosis. (Id. at 268.) He then concluded that Solleveld's statements were "fully credible." (Id.)

In September 2010, consultant Dr. David Mack completed an Illinois Request for Medical Advice form reviewing Dr. Rohs's RFC assessment. (Id. at 293-95.) After summarizing Solleveld's allegations of asthma and back pain, he noted that Dr. Rohs initially found Solleveld capable of light work based on imaging data showing stenosis. (Id. at 295.) Dr. Mack also made reference to an unsigned July 2010 form in which Dr. Harney wrote that Solleveld had tenderness of the sacroiliac joint, but no gait or posture abnormalities, weakness, sensory changes, or reflex changes. (Id. at 273, 295.) Dr. Mack ultimately affirmed Dr. Rohs's previous RFC assessment, but concluded that Solleveld's claims were only "partially credible" because although x-ray evidence supported some of her claimed limitations, clinical findings were "minimal." (Id. at 295.)

In October 2010, Dr. Harney wrote a letter stating that because of her back pain, Solleveld is "limited in her ability to sit, stand, walk, sleep and to perform all activities of daily living." (Id. at 305.) He noted that she is "in a constant state of fatigue" and has trouble maintaining focus and concentration because of her difficulty sleeping and side effects from her medication. (Id.) Dr. Harney concluded that Solleveld has been unable to work in any capacity since July 2008, and that her disability would "continue indefinitely." (Id.)

Dr. Harney retired soon thereafter and Dr. Mark McVay, D.O., took over Solleveld's treatment. (Id. at 312.) In notes from March and April 2011, Dr. McVay reported that he reviewed Dr. Harney's records and upon examining Solleveld, found symptoms consistent with spondylosis and kyphoscoliosis. (Id. at 312, 314.) He observed that she had a normal gait, but complained of fatigue and problems sleeping. (Id. at 312.) He recommended a spine x-ray and MRI to assess the progression of her spondylosis and disc protrusion, but noted that Solleveld could not afford those tests. (Id. at 313.) Over the course of treatment, Dr. McVay prescribed Flexeril and Norco for Solleveld's back pain, Symbicort for her asthma, and a variety of other medications. (Id. at 314.)

Solleveld went to the emergency room twice during the last week of April 2011. (Id. at 306, 308.) Both times she complained of back pain, and during the second visit she said she tried to get medication at a pharmacy but was told that public aid would not cover her prescription. (Id. at 308-09.) Solleveld was ...

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