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Decker v. Colvin

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

November 18, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


SIDNEY I. SCHENKIER, Magistrate Judge.

Plaintiff Christa Decker moves for reversal or remand of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") (doc. #14: Claimant's Motion for Summary Judgment). The Commissioner has filed a response seeking affirmance of the decision (doc. #26: Defendant's Response to Motion). Plaintiff has filed her reply (doc. #22: Reply), and so now the matter is fully briefed. For the following reasons, we grant Ms. Decker's motion for remand on a narrow issue and thus deny the Commissioner's request for affirmance.


Ms. Decker first applied for DIB and SSI[2] in October 2005, alleging an onset date of June 1, 2000 (R.101). After her claims were denied initially and upon reconsideration (R. 176, 190), she participated in a hearing before Administrative Law Judge ("ALJ") Joseph Donovan, Sr. on August 14, 2007 and June 11, 2008 (R. 97-147). On October 11, 2008, the ALJ issued a decision finding that Ms. Decker was not disabled; Ms. Decker requested a review of this decision and the Appeals Council granted her request, finding three open issues that required remand to an ALJ for further consideration:

• Although the first ALJ found that Ms. Decker had moderate limitations in maintaining concentration, persistence and pace, he did not find that she had a severe mental impairment or include any non-exertional limitations in his RFC. Therefore, the Appeals Council directed that on remand, an ALJ "further evaluate Ms. Decker's mental impairment in accordance with the special technique described in the regulations and provide specific findings for each of the functional areas described in 20 CFR 404.1520a and 416.920a(c)";
• The first ALJ's decision recognized Ms. Decker's complaints of back and neck pain, but found that fibromyalgia was her only severe impairment and did not indicate the severity of her cervical and lumbar radiculopathy as diagnosed in the record. Therefore, the Appeals Council directed that on remand, an ALJ "further evaluate Ms. Decker's subjective complaints of pain and provide rationale in accordance with the disability regulations pertaining to evaluation of symptoms in 20 CFR 404.1529 and 416.929, particularly with respect to her cervical and lumbar radiculopathy[3] and obtain supplemental evidence from a medical expert if necessary"; and
• While the first ALJ gave considerable weight to the fact that a medical expert concurred with the decision's RFC, in fact the named expert did not actually offer an opinion about Ms. Decker's RFC. Therefore, the Appeals Council directed that on remand, an ALJ "give further consideration to Ms. Decker's maximum RFC with specific references to evidence in the record" (R. 169-170).

Ms. Decker, who was represented by counsel, testified at a hearing before a new ALJ on May 9, 2011; her husband and a Vocational Expert ("VE") testified as well (R. 54-96). On June 3, 2011, the ALJ denied Ms. Decker's claim for benefits (R. 27-29), and the Appeals Council denied her request for review (R. 1-3), making the second ALJ's ruling the final decision of the Commissioner. See Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012). It is this decision we review in this opinion.


We first summarize the administrative record. Part A reviews Ms. Decker's medical history, Part B reviews the hearing testimony and Part C summarizes the ALJ's opinion.


Ms. Decker was born on June 12, 1973 and has a history of treatment for various injuries and chronic pain dating back to her childhood. She has suffered face and jaw pain and trouble opening her jaw since dropping a barbell on her face while bench-pressing in high school (R. 75). Ms. Decker was hospitalized in 1994 for a serious auto accident that resulted in a collapsed lung, concussion and neck pain (R. 79, 490-514).

Ms. Decker began to experience pain in her lower back with the birth of her third child in 2000 (R. 78-79). She saw a doctor for back pain in 2001 and reported feeling better after taking pain medication (R. 672). An MRI of her back in 2003 revealed mild scoliosis and mild degenerative changes but no other issues (R. 564). In September 2004, rheumatologist Ahmed Saba, M.D. diagnosed Ms. Decker with fibromyalgia[4] and suggested a course of physical therapy (R. 571). Ms. Decker had a bone scan in September 2004 that showed a normal lumbar spine, pelvis, vertebrae and joints (R. 479-486). An electromyography ("EMG"), or nerve conduction study, she underwent in April 2005 revealed no nerve abnormalities or neuromotor issues (R. 471).

Also in April 2005, Ms. Decker began treatment at the Joliet Pain Care Center (R. 661). Ms. Decker saw various medical doctors, chiropractors and physical therapists more than 90 times between April 2005 and April 2007. In May 2005, neurologist Wayne Kelly, M.D. evaluated Ms. Decker for complaints of chronic lower back pain, neck pain, TMJ pain and difficulty opening her jaw, [5] and numbness of her arm and leg (R. 520-22). Dr. Kelly suspected that Ms. Decker had carpal and tarsal tunnel syndrome, [6] fibromyalgia which was possibly caused by sleep deprivation and sleep disorder/sleep apnea problems ( Id ). Dr. Kelly prescribed a pain patch for Ms. Decker and performed nerve block injections to alleviate her carpal and tarsal tunnel pain (R. 523, 515-16). Also in May 2005, Antoine Chami, MD, of the Joliet Pain Care Center evaluated Ms. Decker as having more than the 11 out of 18 points of tenderness needed for a diagnosis of fibromyalgia (R. 518).

Ms. Decker underwent physical therapy for her back, neck, hand, and jaw issues twice-weekly throughout 2005 and 2006 (R. 538-53, 622-32, 705-713). She showed some improvement from the physical therapy, but continued to report pain in various parts of her body during this time ( Id. ). In September 2005, Ms. Decker underwent a sleep study and Dr. Kelly diagnosed her with sleep apnea (R. 529-30). Dr. Kelly prescribed a sleeping pill and a CPAP[7] machine, which Ms. Decker wore at night while she slept ( Id., R. 603-604). After some initial difficulty adjusting to the CPAP, Ms. Decker showed improvement in her sleep apnea issues (R. 619-20).

In February 2006 Ms. Decker had another EMG which Dr. Kelly judged abnormal, showing chronic, severe, bilateral C5-6 cervical radiculopathy (degeneration in the neck vertebrae causing neck and radiating arm pain) and carpal tunnel syndrome (R. 700-703). Dr. Kelly performed a second round of epidural injections to alleviate Ms. Decker's arm, hand and neck pain in March 2006; the injections were only partially successful and Dr. Kelly suggested that Ms. Decker undergo surgery for her carpal tunnel syndrome (R. 704, 727). He also suspected that Ms. Decker had a rotator cuff injury separate from her cervical problems (R. 727).

Ms. Decker underwent carpal tunnel surgical releases on her right and left hands in May and June 2006 (R. 885-886). She showed almost 100 percent resolution of her pain on the right side and significant improvement on her left, with only some numbness remaining ( Id., R. 889). In late 2006 Ms. Decker had surgery on her jaw, which resulted in marked improvement in her TMJ issues and alleviated her headaches (R. 893-94).

After her surgeries alleviated the majority of Ms. Decker's carpal tunnel and TMJ pain, she also began showing significant reduction in her level of pain due to her cervical and lumbar radiculopathy (R. 894). The use of prescription pain medications and pain patches controlled her symptoms well and in January, February and April 2007 she reported continued overall improvement with her pain and sleep problems as well as satisfaction with her pain medication (R. 895-96, 924).

Ms. Decker visited the Institute for Personal Development several times between July and September 2006 to discuss her mental health. She met with physician assistant Lucinda Torgerson and Laura Jansons, Psy.D. (R. 935-962). Ms. Torgerson assessed Ms. Decker for ADHD (but the record does not contain the results of the test) and also spoke with Ms. Decker about her medications (particularly Valium), anxiety and depression over her grandfather's illness and subsequent ...

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