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Hu v. Colvin

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

September 15, 2014

LING HU, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.


MARY M. ROWLAND, Magistrate Judge.

Pro se Plaintiff Ling Hu filed this action seeking reversal of the final decision of the Commissioner of Social Security (Commissioner) denying her application for Disability Insurance Benefits under Title II of the Social Security Act (Act). 42 U.S.C. §§ 405(g), 423 et seq. The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c), and Plaintiff has filed a motion for summary judgment. For the reasons stated below, the case is re-manded for further proceedings consistent with this opinion.


To recover Disability Insurance Benefits (DIB), a claimant must establish that he or she is disabled within the meaning of the Act. York v. Massanari, 155 F.Supp.2d 973, 977 (N.D. Ill. 2001).[2] A person is disabled if he or she is unable to perform "any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a). In determining whether a claimant suffers from a disability, the Commissioner conducts a standard five-step inquiry:

1. Is the claimant presently unemployed?
2. Does the claimant have a severe medically determinable physical or mental impairment that interferes with basic work-related activi-ties and is expected to last at least 12 months?
3. Does the impairment meet or equal one of a list of specific impair-ments enumerated in the regulations?
4. Is the claimant unable to perform his or her former occupation?
5. Is the claimant unable to perform any other work?

20 C.F.R. §§ 404.1509, 404.1520; see Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). "An affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than Step 3, ends the inquiry and leads to a determination that a claimant is not disa-bled." Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985). "The burden of proof is on the claimant through step four; only at step five does the burden shift to the Commissioner." Clifford, 227 F.3d at 868.


Plaintiff applied for DIB on December 1, 2009, alleging that she became disabled on April 6, 2009, because of back disorders and osteoarthritis. (R. at 13, 54, 114). The application was denied initially and on reconsideration, after which Plaintiff filed a timely request for a hearing. ( Id. at 13, 54-66). On May 18, 2011, Plaintiff, represented by counsel, testified at a hearing before an Administrative Law Judge (ALJ). ( Id. at 13, 28-53). The ALJ also heard testimony from Walter J. Miller, M.D., a medical expert (ME), and Edward F. Pagella, a vocational expert (VE). ( Id. at 13, 28-53, 107, 108).

The ALJ denied Plaintiff's request for benefits on September 1, 2011. (R. at 13-21). Applying the five-step sequential evaluation process, the ALJ found, at step one, that Plaintiff has not engaged in substantial gainful activity since April 6, 2009, the alleged onset date. ( Id. at 15). At step two, the ALJ found that Plaintiff's left shoulder tendonitis, osteoporosis, hypothyroid disease, brachial plexopathy, [3] and cervical spine protrusions are severe impairments. ( Id. ). At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impair-ments that meets or medically equals the severity of any of the listings enumerated in the regulations. ( Id. at 16).

The ALJ then assessed Plaintiff's residual functional capacity (RFC)[4] and de-termined that she could perform sedentary work as defined in 20 C.F.R. § 404.1567(a) except that "[Plaintiff] is precluded from climbing ladders, ropes, and scaffolds. She also is precluded from unprotected heights or hazards. [Plaintiff] can only occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl." (R. at 16). Based on Plaintiff's RFC and the VE's testimony, the ALJ determined at step four that Plaintiff is capable of performing past relevant work as a CAD de-signer. ( Id. at 20). Accordingly, the ALJ concluded that Plaintiff was not suffering from a disability as defined by the Act. ( Id. at 21).

The Appeals Council denied Plaintiff's request for review on September 27, 2012. (R. at 1-3). Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).


Judicial review of the Commissioner's final decision is authorized by § 405(g) of the SSA. In reviewing this decision, the Court may not engage in its own analysis of whether the plaintiff is severely impaired as defined by the Social Security Regula-tions. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Nor may it "reweigh evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute [its] own judgment for that of the Commissioner." Id. The Court's task is "limited to determining whether the ALJ's factual findings are supported by substantial evidence." Id. (citing § 405(g)). Evidence is considered substantial "if a reasonable person would accept it as adequate to support a conclusion." Indoranto v. Barnhart, 374 F.3d 470, 473 (7th Cir. 2004); see Moore v. Colvin, 743 F.3d 1118, 1120-21 (7th Cir. 2014) ("We will uphold the ALJ's decision if it is supported by substantial evidence, that is, such relevant evidence as a reasonable mind might ac-cept as adequate to support a conclusion.") (citation omitted). "Substantial evidence must be more than a scintilla but may be less than a preponderance." Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). "In addition to relying on substantial evi-dence, the ALJ must also explain his analysis of the evidence with enough detail and clarity to permit meaningful appellate review." Briscoe ex rel. Taylor v. Barn-hart, 425 F.3d 345, 351 (7th Cir. 2005).

Although this Court accords great deference to the ALJ's determination, it "must do more than merely rubber stamp the ALJ's decision." Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (citation omitted). "This deferential standard of review is weighted in favor of upholding the ALJ's decision, but it does not mean that we scour the record for supportive evidence or rack our brains for reasons to uphold the ALJ's decision. Rather, the ALJ must identify the relevant evidence and build a "logical bridge" between that evidence and the ultimate determination." Moon v. Colvin, ___ F.3d ___, No. 13-3636, 2014 WL 3956762, at *2 (7th Cir. Aug. 14, 2014). Instead, the Court must critically review the ALJ's decision to ensure that the ALJ has built an "accurate and logical bridge from the evidence to his conclusion." Young, 362 F.3d at 1002. Where the Commissioner's decision "lacks evidentiary support or is so poorly articulated as to prevent meaningful review, the case must be remanded." Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).


On September 25, 2008, Plaintiff began treating with Marie Kirincic, M.D. (R. at 224-25; see id. at 496). Plaintiff complained of neck, shoulder, and upper back pain radiating down her left upper extremity, which she had experienced over the previ-ous several months. ( Id. at 224). An MRI performed the next day found slight left lateral disc protrusion at C5/6 and very minimal protrusion of the C4/5 disc. ( Id. at 220).

On October 2, 2008, Plaintiff complained of ongoing neck, shoulder, and upper back pain radiating occasionally to her left upper extremity and intermittently to her shoulder blades. (R. at 226). Dr. Kirincic found that Plaintiff's pain was 10/10, with multiple fibromyalgia trigger points[5] and marked tenderness and tightness throughout the whole cervicothoracolumbar area. ( Id. ). She diagnosed possible left cervical radicular pain but mainly mild osteopenia and myofascial pain. ( Id. ). Dr. Kirincic prescribed Flexeril and referred Plaintiff for massage therapy and acupunc-ture. ( Id. ). On October 16, 2008, Dr. Kirincic found Plaintiff had more than 11/18 fibromyalgia tender points and pain of 8/10. ( Id. at 227). She prescribed Arthrotec and offered Ultracet, [6] but Plaintiff declined to take pain medication. ( Id. ). Plaintiff preferred to try physical therapy, which Dr. Kirincic cautioned would take a long time to see results. ( Id. ).

On October 21, 2008, Plaintiff complained of sharp, shooting pains in her lower extremity. (R. at 228). Plaintiff expressed hope that physical therapy will allow her to return to work full time. ( Id. ). Dr. Kirincic found 11/18 tender points, slight weakness, and pain of 6-8/10. ( Id. ). She diagnosed fibromyalgia, myofascial pain syndrome, [7] osteopenia, [8] and marked anxiety. ( Id. ). A November 4, 2008 MRI of the thoracic spine was normal. ( Id. at 221).

Plaintiff underwent physical therapy from October to December 2008. (R. at 249-70). Her therapist frequently reminded Plaintiff to work with less intensity and to improve her breathing pattern. ( Id. at 250). Plaintiff cancelled her last two scheduled appointments complaining of being sick. ( Id. at 249). On discharge, she continued to experience upper thoracic pain, although the intensity had decreased from the initial evaluation. ( Id. ). Her left shoulder and cervical mobility were within normal limits; however, she experienced occasional pain with left cervical side-bending and extension. ( Id. ). Plaintiff underwent additional physical therapy from December 2008 to April 2009. ( Id. at 272-411).

On December 1, 2008, Plaintiff complained of multiple body pains, especially low back pain radiating down both lower extremities, extreme fatigue, and discomfort in both elbows and wrists. (R. at 230). On physical examination, Dr. Kirincic found Plaintiff positive for 18/18 fibromyalgia points. She opined that Plaintiff "suffers more from fibromyalgia and myofascial pain syndrome, osteopenia, anxiety, then [ sic ] acute radiculopathy." ( Id. ). Dr. Kirincic concluded that Plaintiff "would be best served by an interdisciplinary pain program, Fosamax, [9] and blood work was or-dered." ( Id. at 231). X-rays of the cervical and thoracic spine on December 9, 2008, were "unremarkable." ( Id. at 237-38).

On December 9, 2008, Plaintiff began treating with a chiropractor and a physical therapist at Woodward Medical Center. (R. at 403-11; see id. at 272-337, 341-412). On December 17, 2008, she complained of muscle spasm and insidious pain that ranged from 3-7/10. ( Id. at 307). Despite the therapy and medications, the pain re-mained consistently at 4-6/10 into February 2009. ( Id. at 299-306; see id. at 365-71). A February 18, 2009 progress report noted that Plaintiff's neck and back con-tinue to consistently bother her with pain fluctuating from 3-7/10. ( Id. at 298). Plaintiff was frustrated by her slow improvement. ( Id. ). Her physical therapist con-cluded that Plaintiff's progress was slowed by continued flare-ups of her pain, which is easily triggered by her exercises. ( Id. ). Plaintiff still presented with limited range of motion, especially in the cervical region. ( Id. ).

Despite her triweekly physical therapy sessions, Plaintiff exhibited little im-provement during February and March 2009. (R. at 292-97). She consistently com-plained of pain, tightness, and muscle spasm that were aggravated by work and ex-ercise and became worse as the day progressed. ( Id .; see id. at 347-63). By April 2009, Plaintiff was frustrated and agitated by increased pain, tenderness and spasms, and restricted range of motion. ( Id. at 292). On April 3, 2009, Plaintiff's chiropractor found vertebral subluxation, decreased range of motion, palpatory ten-derness and trigger point sensitivity in the cervical, thoracic and lumbar regions. ( Id. at 343). The chiropractor diagnosed cervicobrachial syndrome, deep and super-ficial muscle spasms, and cervical, thoracic and lumbar segmental dysfunctions. ( Id. ) She recommended that Plaintiff not work because of her chronic shoulder and neck ailments. ( Id. at 341).

In January 2009, Plaintiff began treating with Nick S. Kouchis, M.D. (R. at 378). She presented with complaints of bilateral neck, shoulder, shoulder blade, and up-per arm weakness and soreness, right side worse than left side and exacerbated by movement. ( Id. ). Dr. Kouchis found trigger point tenderness and tightness over the rotator cuff muscles, along with right side deltoid tenderness. ( Id. ). He diagnosed right cervical brachial syndrome and shoulder rotator cuff tendonitis and ordered physical therapy. ( Id. at 379). On February 4, 2009, Plaintiff complained of waxing and waning left shoulder scapular pain, which worsened with exercise. ( Id. at 364). She reported sometimes feeling better with therapy but sometimes worse, and ex-pressed frustration with her lack of progress. ( Id. ). Dr. Kouchis's examination was unremarkable. ( Id. ) He prescribed Diazepam, reduced physical therapy to twice weekly, and considered trigger point injections. ( Id. ). On February 18, 2009, Plain-tiff reported some improvement to her left shoulder, denied neck, chest or back pain, and denied headaches. ( Id. at 357). Dr. Kouchis refilled Diazepam and consid-ered trigger point injections if no improvement. ( Id. ).

On March 11, 2009, Plaintiff reported pain improvement and increased range of motion, but continued tenderness. (R. at 351). Dr. Kouchis found full range of mo-tion and strength in her upper extremity. ( Id. ). He diagnosed bilateral thoracic back pain and bilateral shoulder impingement syndrome. ( Id. ). He noted that Plaintiff "is very motivated and sometimes over participates in her exercises." ( Id. ). Dr. Kouchis refilled Diazepam and continued biweekly physical therapy sessions. ( Id. ). On March 25, 2009, Plaintiff reported that her upper back pain was much improved but that she had been recently experiencing left shoulder pain. ( Id. at 345). The pain was exacerbated when doing exercises that flexed her elbow and shoulder, even with minimal weights. ( Id. ). On examination, Dr. Kouchis found full range of motion of the shoulder and elbow, strength 5/5, no swelling, and no focal or neurologic defi-cits. ( Id. ). He assessed ...

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