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Evans v. Colvin

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

June 10, 2015

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


SHEILA FINNEGAN, Magistrate Judge.

Plaintiff Brandon Evans applied for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416, 423(d), 1381a. An Administrative Law Judge awarded him a closed period of benefits from May 7, 2010 through July 20, 2011, but found that he thereafter experienced medical improvement related to his ability to work and was no longer disabled. In this lawsuit, Plaintiff seeks judicial review of that decision, which stands as the final decision of the Commissioner of Social Security ("Commissioner" or "Defendant"). The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 2 8 U.S.C. § 636(c), and have now filed cross-motions for summary judgment. After careful review of the record, the Court grants Defendant's motion, denies Plaintiff's motion, and affirms the decision to award Plaintiff a closed period of benefits ending July 20, 2011.


Plaintiff applied for DIB and SSI on February 7, 2011, alleging in both applications that he became disabled on May 7, 2010 due to lumbar spinal fusion with instrumentation (back injury on May 7, 2010 leading to surgery on November 19, 2010), and depression. (R. 170-77, 220). The Social Security Administration denied the applications initially on May 12, 2011, and again upon reconsideration on October 5, 2011. (R. 65-106). Plaintiff filed a timely request for hearing and appeared before Administrative Law Judge Denise McDuffie Martin (the "ALJ") on August 22, 2012. (R. 39). The ALJ heard testimony from Plaintiff, who was represented by counsel, as well as from medical expert Sheldon J. Slodki, M.D. (the "ME") and vocational expert Grace Gianforte (the "VE"). Shortly thereafter, on September 28, 2012, the ALJ found that Plaintiff was disabled from May 7, 2010 through July 20, 2011, but that he subsequently experienced medical improvement enabling him to perform a significant number of sedentary jobs available in the national economy. (R. 18-33).

In support of his request for remand, Plaintiff argues that the ALJ (1) erred in finding medical improvement as of July 20, 2011; (2) made an improper credibility determination; and (3) improperly weighed the evidence from treating physician Mark A. Lorenz, M.D. As discussed below, the Court finds that the ALJ's decision is supported by substantial evidence and there is no basis for remanding the case.


Plaintiff was born on February 2, 1982, and was 30 years old at the time of the ALJ's decision. (R. 170). He lives with his wife and 7-year-old daughter. (R. 42, 51). Plaintiff graduated from high school in May 2000 and completed trade school with a five-year apprenticeship as an electrician. (R. 221). He spent approximately five years as a car service technician followed by five years as an electrician, but he had to stop working on May 7, 2010 after suffering a back injury during a construction job. (Id. ). He was diagnosed with L5-S1 disk herniation with annular tear and axial back pain, as well as degenerative disc disease of the lumbar spine, and sought regular treatment from orthopedic surgeon Mark A. Lorenz, M.D., and pain specialist Eugene Becker, M.D. When conservative measures such as medication management and physical therapy proved unsuccessful in controlling his pain, Plaintiff decided to have an L5-S1 interbody and posterior spinal fusion, which Dr. Lorenz performed on November 19, 2010. (R. 297).

A. Medical History

1. November 2010 through June 2011

On November 23, 2010, one week after the surgery, Plaintiff saw Dr. Becker to discuss his post-operative medication management. Most of Plaintiff's pain was in the lower back at that time at a level of 7/10, with very minimal pain in the legs. Dr. Becker prescribed Kadian (morphine sulfate), Lyrica and Zanaflex, which had "worked well" for Plaintiff before the surgery, and also added Norco to assist with more acute surgical pain. Dr. Becker advised Plaintiff to take amitriptyline at night to help him sleep, and told him to return for a follow-up visit in two weeks. (R. 459).

Approximately one week later, on December 1, 2010, Plaintiff saw T. Lindley Pittman, P.A.-C, a certified physician's assistant from Dr. Lorenz's office, for his first post-surgical evaluation. Plaintiff reported that his pain was at a level 6 or 7 out of 10, but he was not experiencing any leg or calf pain or swelling. A physical examination revealed that Plaintiff was healing well, and he had full motor power of 5/5 and a negative straight leg raise test. (R. 393). PA Pittman instructed Plaintiff to keep wearing a back brace, stay off work, and return in five weeks. (Id. ). He also recommended that Plaintiff continue going to the pain management service with a goal of weaning off Kadian. (R. 393-94).

When Plaintiff returned to Dr. Becker on December 8, 2010, he was wearing his back brace and walking with a cane, and reported back pain at a level of 8/10 with occasional shooting pains in the leg. Plaintiff was engaging in minimal activity and complained of poor sleep, and Dr. Becker said his primary goal was to "provide [Plaintiff] with as little pain as possible." (R. 462). At the same time, Dr. Becker wanted Plaintiff to begin physical therapy ("PT"), after which he planned to start decreasing Plaintiff's medication. (R. 462-63).

Dr. Lorenz examined Plaintiff on January 10, 2011 and found that he was "doing well" with stable pain at a level of 5-6/10. The incision was well healed, a straight leg raise test was negative, and Plaintiff exhibited strength of 4/5 with no focal weakness, though he was "very stiff" on forward flexion and extension. (R. 474). Dr. Lorenz diagnosed L5-S1 fusion with intermittent radiculitis and instructed Plaintiff to stop using the brace and begin PT. (Id. ). Two days later, on January 12, 2011, Plaintiff told Dr. Becker that his pain was better (4/10) with no weakness or numbness, but he was experiencing more pain in his left leg and still having trouble sleeping. (R. 673). Dr. Becker recommended that Plaintiff continue his current medication regimen (Kadian, Norco, and Zanaflex) but decided to wean him off amitriptyline and switch him to trazodone. Dr. Becker also reiterated his plan to taper the other medications after Plaintiff had completed three weeks of PT. (Id. ).

Plaintiff had a CT scan of the lumbar spine on January 21, 2011, which showed no signs of hardware failure. (R. 683). At a follow-up appointment with Dr. Becker on February 7, 2011, Plaintiff reported that his pain was "getting better" and was at a level of 4/10. He was more active at home but his sleep remained poor and he was not able to tolerate trazadone due to nausea. Dr. Becker switched Plaintiff to nortriptyline for sleep and decreased his dosage of Kadian. (R. 686). The same day, Plaintiff applied for disability benefits dating back to the back injury on May 7, 2010.

The following month, on March 21, 2011, Plaintiff's pain was up slightly to a 5/10 after more than four weeks of PT. He described the pain as "stiffness" and told Dr. Becker that he could only stand and sit for one hour at a time, and could not walk for any extended period. (R. 706). With respect to his medications, Plaintiff only rarely needed to supplement the Kadian with Norco, and the nortriptyline was helping with his sleep, but he still had to use Zanaflex at night. (Id. ). Dr. Becker instructed Plaintiff to continue his PT and medication regimen, and return in 4 to 6 weeks. (Id. ).

On April 15, 2011, Pam Agostino, a physical therapist from City Center Physical Therapy, completed a Progress Report indicating that as a result of PT, Plaintiff had improved his endurance and was able to complete one hour of exercises, including walking on a treadmill at 2.7 mph for 15 minutes. He continued to complain of stiffness and pain in the low back, however, and Ms. Agostino stated that he "may benefit from a period of work conditioning... in order to be able to return to work." (R. 727).

Plaintiff next saw Dr. Lorenz for a reevaluation on April 18, 2011. He was doing better overall following PT but still had some tightness and stiffness in his back, as well as periodic spasms and occasional leg pain. On examination, Dr. Lorenz noted that Plaintiff was very stiff to flexion in the lumbar spine and had "very little extension or lateral bending." (R. 743). There was also tightness in his hip rotation and hamstrings, though he had full strength of 5/5. Dr. Lorenz opined that Plaintiff had plateaued with the PT and should focus on his home exercise program. In response to Plaintiff's stated desire to return to work, Dr. Lorenz agreed to release him to light duty with a 15-pound lifting restriction, and referred him for a functional capacity evaluation ("FCE"). (Id. ).

Plaintiff appeared for the FCE on April 26, 2011. According to the report submitted by Timothy Semlow, PT, a physical therapist with City Center Physical Therapy, Plaintiff demonstrated the ability to perform work at the "Light level of physical demand, " including lifting a maximum of 40 pounds; occasionally squatting, stooping, kneeling, walking, and climbing ladders or stairs; and frequently standing and sitting. (R. 746). During the evaluation, Plaintiff was able to walk over one mile continuously at a speed of 2.5 mph with minimal elevation of his pain symptoms, which he rated at a level 4/10. (R. 747-48). Though he exhibited "significant restrictions on working posture and positions, " he did not have any unusual pain or radicular symptoms. (R. 746-47, 749).

Also on April 26, 2011, Plaintiff had another scheduled visit with Dr. Becker. He reported that his pain was at a level 4/10, mainly in the low back radiating up to the lower thoracic spine, and that he was considering returning to work in May. Plaintiff described the pain as stiffness and confirmed that he had been using mainly Norco, along with some Kadian and Zanaflex. (R. 734). Since Plaintiff wanted to be weaned off ...

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