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Hickey v. Colvin

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

June 25, 2015

JOHN HICKEY, Plaintiff,
v.
CAROLYN COLVIN Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

DANIEL G. MARTIN, Magistrate Judge.

Plaintiff John Hickey ("Plaintiff" or "Hickey") seeks judicial review of a final decision of Defendant Carolyn Colvin, the Acting Commissioner of Social Security ("Commissioner"). The Commissioner denied Plaintiff's application for disability benefits and supplemental security income benefits for the period of October 5, 2005 through February 28, 2009, and from February 9, 2011 through his last insured date of December 31, 2014. Hickey was found to be disabled during the interim period of March 1, 2009 through February 9, 2011 in a written decision of Administrative Law Judge ("ALJ") Kimberly Cromer. Hickey appealed the ruling to this Court and filed a Motion for Summary Judgment that seeks to reverse the Commissioner's decision.[1] The Commissioner has filed a cross motion.

Hickey experienced a work-related injury in January 2004 that created serious back and leg pain. After years of conservative care, he underwent a L4-L5 fusion for disc herniation in March 2009. Antibiotic treatment was necessary to resolve an ensuing infection. In May 2009, Hickey had a second surgery for a lumbar spinal fusion that included placing hardware into the affected area. This included bi-pedicular screws at L2 and L5, and a cage at the L4-L5 vertebrae. Several epidural injections were given to relieve Hickey's continuing pain. He was also treated with a variety of narcotic pain medications and anti-depressant drugs. On September 6, 2011, a spinal cord stimulator was surgically implanted into his spine.

Legal Standard

In order to qualify for disability benefits, a claimant must demonstrate that he is disabled. An individual does so by showing that he cannot "engage in 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." 42 U.S.C. § 4243(d)(1)(A). Gainful activity is defined as "the kind of work usually done for pay or profit, whether or not a profit is realized." 20 C.F.R. § 404.1572(b).

The Social Security Administration ("SSA") applies a five-step analysis to disability claims. See 20 C.F.R. § 404.1520. The Court omits a description of this well-known standard. When, as here, an ALJ finds that a claimant is disabled for a closed period, while also finding that he experienced medical improvement, the ALJ must follow the eight-step analytic standard set out in 20 C.F.R. § 404.1594. The ALJ must consider whether the claimant:

(1) is engaging in substantial gainful activity;

(2) has an impairment or combination of impairments that meet or equal the severity of a listed impairment;

(3) has experienced medical improvement, as that term is defined in the regulations;

(4) has experienced an increase in his residual functional capacity ("RFC") as a result of the improvement;

(5) has, if no improvement exists, the ability to engage in substantial gainful activity ("SGA");

(6) has current impairments that are severe in combination despite medical improvement;

(7) has the ability and RFC to do his past relevant work; and

(8) has the ability to do other work that constitutes SGA.

The Commissioner bears the burden in a continuing disability case of showing that the claimant has experienced medical improvement such that he can engage in SGA. 20 C.F.R. § 404.1594(b)(5); Mables v. Sullivan, 812 F.Supp. 886, 888 (C.D. Ill. 1993) ("The Secretary's burden... is to show that medical improvement has taken place and is related to plaintiff's ability to work."); Stewart v. Astrue, 2012 WL 2994080, at *2 (N.D. Ill. July 19, 2012) ("[T]he Commissioner bears the evidentiary burden to demonstrate that a disability has ceased."); see also Glenn v. Shalala, 21 F.3d 983, 987 (10th Cir. 1994); Griego v. Sullivan, 940 F.2d 942, 944 (5th Cir. 1991); Carter v. Colvin, 27 F.Supp.3d 1142, 1147 (D. Colo. 2014); Deronde v. Astrue, 2013 WL 869489, at *3 (N.D.N.Y. Feb. 11, 2013); Sturgill v. Astrue, 2010 WL 715672, at *3 (S.D. Ohio Feb. 23, 2010); Easly v. Astrue, 2009 WL 928682, at *3 (D. Or. April 2, 2009); Vicknair v. Astrue, 2009 WL 2949764, at *4 (N.D. Tex. Sept. 15, 2009); Suriel v. Comm. of Soc. Sec., 2006 WL 2516429, at *4 (E.D.N.Y. Aug. 29, 2006).

The ALJ's Decision

The ALJ applied the ususal five-step standard to find that Hickey was not disabled from October 5, 2005 through February 28, 2009. She relied on the same standard to conclude that he then became disabled on March 1, 2009 and continued to be so through February 8, 2011. She found at Step 1 that Hickey had not engaged in SGA during any part of his alleged disability period. The ALJ concluded at Step 2 that he suffered from the severe impairments of "degenerative disc disease with disc herniation at L4-L5 and surgical complications." (R. 15). Relying on the testimony of medical expert Dr. Ashok Jilhewar, the ALJ found that Hickey's impairments met the requirements of ...


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