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Robertson v. Colvin

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

December 1, 2014

MARY ROBERTSON, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

IAIN D. JOHNSTONE, Sr., District Judge.

Mary Robertson brings this action under 42 U.S.C. ยง 405(g), seeking remand of the decision denying her social security disability benefits. For the reasons set forth below, the case is remanded.

I. BACKGROUND[1]

Ms. Robertson was 37 years old on the date of the ALJ's decision. R. 32. She had last worked full-time in July 2003, when her job as a scheduler in a nursing home was eliminated for budgeting reasons. R. 15, 155.

In September 2005, Ms. Robertson fell down stairs and started having back problems and then, a month later, neck problems. R. 34, 155.[2] A CAT scan and MRI were taken, and a doctor diagnosed her with multiple herniated disks in her lower back and neck. R. 34.

Over the next five, Ms. Robertson saw Dr. Stephen Geller for various ailments, including her back pain and also chronic anxiety. R. 241-46, 292-94, 381-82. She had numerous and regular visits with Dr. Geller. Id. During this same period, she also periodically saw other doctors, including Dr. Roh in March 2006 and Dr. MacKenzie in January 2008. R. 16, 18. Pain medications, such as Norco, were prescribed, and an epidural injection was given in February 2006, although it did not help with the pain according to Ms. Robertson. R. 16, 47.

On September 14, 2009, Ms. Robertson filed for supplemental social security income alleging that she became disabled on September 1, 2005. R. 11. After the claim was denied, an administrative law judge conducted a video hearing on April 8, 2011. Ms. Robertson testified that, among other things, she has chronic back pain that even with medication is an 8 on a scale of 10; her neck pain is a 6 out 10; if she stands more than 10-15 minutes, she has a throbbing sensation; conversely, if she sits for more than 10-15 minutes, she has to get up and walk around; she can walk about a block; she cannot lift more than a half a gallon of milk; she does not sleep well; she is on anti-anxiety medicine; and she does not drink but has occasionally smoked marijuana because it has helps with her anxiety. R. 15-16, 38.

Particularly relevant to this appeal, Ms. Robertson testified that she has to lie down "five to six times a day... maybe for 10, 15 minutes at a time." R. 39. Later in the hearing, Ms. Robertson's attorney posed the following question to the vocational expert:

Q. [I]f an individual, five to six times a day must lay down for 10 to 15 minutes to relieve pain, would there be work for that individual?
A. No, that would preclude work.

R. 62. Relating to this same issue, Ms. Robertson submitted a letter from Dr. Geller, stating:

This is to verify that I am the personal physician for Ms. Robertson; she has neck and low back pain, interfering with her sleep. It would be helpful if she could lie down for 10-15 minutes 3-4 times during the day to relieve the pain in her back.

R. 385. The letter is dated April 14, 2011, which is six days after the hearing.

On August 26, 2011, the administrative law judge (ALJ) ruled that Ms. Robertson was not disabled. He first found that Ms. Robertson had severe impairments of degenerative disease of the cervical and lumbar spine, obesity, depression, anxiety, and a history of marijuana abuse. R. 13. The ALJ then determined that Ms. Robertson had a residual functional capacity to do sedentary work with certain exceptions, including that she could stand or walk with normal breaks for up to 2 hours in an 8 hour day and that she could sit with normal breaks for up to 6 hours but must be allowed to alternate from a seated position to a standing position as ...


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