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Jednachowski v. Colvin

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

July 6, 2015

KEVIN JEDNACHOWSKI, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

JEFFREY COLE, Magistrate Judge.

The plaintiff, Kevin Jednachowski, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). 42 U.S.C. § 423(d)(2). Mr. Jednachowski asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.

Mr. Jednachowski applied for DIB on February 10, 2009, alleging that he became disabled on September 19, 2003, due to back and neck injuries. (Administrative Record ("R") 374-75, 431). 224-227, 135). After his application was denied initially and upon reconsideration, he was granted an administrative hearing before an administrative law judge; he actually ended up having two hearings, at which he testified and was represented by counsel. (R. 44-105). At the supplemental hearing, Dr. Bernard Stevens appeared and testified as a medical expert. (R. 82-105). On August 26, 2010, the ALJ determined that Mr. Jednachowski was not disabled at any point prior to the expiration of his insured status because he retained the capacity to perform a restricted range of light work. (R. 157-64).

Mr. Jednachowski requested review of the decision from the Appeals Council, and the case was remanded for further proceedings. Specifically, the Appeals Council instructed the ALJ to consider the March 2010 opinion from Mr. Jednachowski's treating physician restricting him to part-time work, and to consider the entire opinion of the medical expert that testified at the hearing, who concurred with Mr. Jednachowski's treating doctor. (R. 171-72). The ALJ convened another hearing on June 12, 2012, Mr. Jednachowski and his counsel appeared again. A new medical expert, Dr. Mary Jo Kosinski Voelpel, appeared and testified, and Edward Pagella appeared and testified as a vocational expert. (R. 106-151).

On November 19, 2012, the ALJ determined that Mr. Jednachowski was disabled from February 1, 2006, through November 17, 2009. (R. 31). Thereafter, the ALJ determined that his condition had improved to the point where he was capable of performing light work that did not involve climbing ladders, ropes, or scaffolds, or more than occasional balancing, stooping, kneeling, crouching, crawling, or climbing of ramps or stairs. (R. 32). Because this allowed Mr. Jednachowski to perform jobs like hand packer, hand sorter, or assembler, the ALJ concluded he was not disabled and not entitled to DIB as of November 17, 2009. (R. 35-36). This became the Commissioner's final decision on January 29, 2013, when the Appeals Council denied Mr. Jednachowski's request for review. (R. 7-16). See 20 C.F.R. §§404.955; 404.981. Mr. Jednachowski has appealed that decision by filing suit in this Court under 42 U.S.C. §405(g), and both parties consented to jurisdiction pursuant to 28 U.S.C. §636(c).

I.

A.

The Evidence

The question is whether the ALJ's determination that Mr. Jednachowski, who was disabled and unable to perform any level of work as of February 2006, had recovered and improved to the point where he was capable of performing light work by November 2009 is supported by substantial evidence. 42 U.S.C. §§ 405(g). The record in this case is over 1000 pages, cobbled together in no particular order, and given that the issues Mr. Jednachowski raises are specific and legal, we will skip the tedious and lengthy recitation of that evidence and summarize it very briefly. Mr. Jednachowski was 52 years old at the time of the ALJ's decision and, from the time he was 19 years old until 2003, he worked as an iron worker. (R. 49, 446). He hurt his back on the job in March 2003, but continued working until, in September of that year, he "couldn't take the pain anymore." (R. 49-50).

Beginning in November of 2003, he underwent a series of surgical procedures. He had a fusion an laminectomy at the L5-S1 level of his spine on November 13th. (R. 798-803). In February of 2006, MRIs revealed degenerative disc disease and abnormal alignment in Mr. Jednachowski's cervical spine, and degenerative changes and bulging disc in his lumbar spine. (R. 633-34). On February 22nd, he underwent a cervical discectomy and fusion with implantation of a stabilizing device. (R. 625-30).

Mr. Jednachowski continued to have problems with pain and range of motion in his back and neck. There was radiation of pain to his hands and legs, numbness in his hands, and diminished reflexes. (R. 543, 546, 551-52, 568-69, 662-63, 693, 701). On November 28, 2007, Mr. Jednachowski had his lumbar fusion hardware removed and replaced with an add-on fusion at L4-L5 with instrumentation and bone grafting. (R. 1201). At first there was relief (R. 776), but by January 2008, Mr. Jednachowski's problems had returned. (R. 571). The focus of his treating doctors' attentions at this point was his neck. MRIs and x-rays indicated that that surgery would have to be done over. (R. 563-565).

On March 11, 2008, Mr. Jednachowski underwent a removal of the cervical hardware, followed by a vertebrectomy at C6, and a fusion from C5 to C7 with a bone graft from his hip and insertion of a plate. (R. 560). At first he was doing better - although he was experiencing hip pain at the graft site - but his neck and low back pain returned in April and May. (R. 575).

Despite his continued symptoms, Mr. Jednachowski embarked on a course of physical therapy and work hardening. (R. 576, 752, 864-75). He continued to experience pain, as well as tingling and numbness during the 4-5 hour work sessions. (R. 864-75). By September 19, 2008, Mr. Jednachowski's treating physician, Dr. Bernstein, felt he was able to perform light duty work: no overhead lifting, no repetitive bending, twisting or lifting, no lifting of more than 10-15 pounds. (R. 576, 753). On October 17th, Dr. Bernstein said he could perform "light duty work" as long as he lifted no more than 20 pounds, and avoided repeated bending, twisting, and lifting. (R. 577).[1]

On February 3, 2009, Dr. Briney reported that Mr. Jednachowski's range of motion in his back was markedly reduced. Deep tendon reflexes were reduced in his legs. (R. 918).

On April 20, 2009, Dr. Lenore Gonzalez reviewed the file on behalf of the state disability agency. She said Dr. Bernstein's assessment should be given controlling and said she was adopting it. (R. 788). But, Dr. Gonzalez's assessment was a bit different. She did not indicate Mr. Jednachowski could not perform repetitive lifting, but instead found he could frequently lift up to 10 pounds and occasionally lift up to 20. (R. 782).

On April 30, 2009, Mr. Jednachowski told Dr. Bernstein he was still suffering continued pain and felt his surgeries had not been successful. (R. 841). Dr. Bernstein felt that Mr. Jednachowski had reached maximum medical improvement and suggested a comprehensive pain management program to help him learn to live with his pain on a daily basis. (R. 841). In September 2009, Dr. Briney reported that Mr. Jednachowski had constant and continuous pain and was unable to work due to these problems. His range of motion in his back was markedly reduced and he moved slowly. Plaintiff continued to be in constant pain. (R. 926).

Beginning in September 2009, Mr. Jednachowski participated in a pain management program. Through October and November, he continued to experience pain and significantly decreased range of motion. (R. 1027, 1030, 1034, 1045, 1090, 1094, 1096, 1137).

On March 8, 2010, Dr. Bernstein wrote that he "should have" limited Mr. Jednachowski to no more than part-time, light duty work. (R. 1138). On September 27, 2010, Mr. Jednachowski was still suffering low back pain with some radiation into his left buttock. Dr. Briney also reported he had "quite a bit" of spasms, muscle tension, and reduced reflexes. (R. 1144).

On April 24, 2012, Mr. Jednachowski had a cervical spine MRI, which revealed post-surgical changes and posterior disc osteophyte formation with a superimposed left parasagittal disc protrusion probably compressing the left-sided exiting nerve root. (R. 1196). There was also moderately severe left foraminal stenosis secondary to spurring at C5-6 and moderate bilateral foraminal stenosis at C6-7. (R 1197). Mr. Jednachowski had yet another operation - a cervical fusion - on July 12, 2012. (R. 1199). He was still having low back pain, leg pain, problems with balance and some numbness in his feet the next month. (R. 1199). He also exhibited decreased strength in his arms and legs, markedly restricted movement in his back and diminished reflexes in his arms and legs. (R 1200).

On August 9, 2012, Mr. Jednachowski saw Dr. Briney. The doctor reported that he had markedly restricted range of motion in his back, myelopathic symptoms in his feet, weakness in his arms and legs, and some balance disturbance. (R. 1199-1200). Dr. Briney said he could not return to steel work, and noted, generally, that he had "an inability to work and move." (R. 1199-1200).

Then there were the medical opinions from the experts who testified at the two hearings. Dr. Stevens, who testified at the first, wasn't exactly crystal clear, but he seemingly felt that Mr. Jednachowski could do light work. He claimed his opinion was no different from that of Mr. Jednachowski's treating doctor, Dr. Bernstein, but it clearly was. (R. 94-95).

Dr. Voelpel, who testified at the second hearing, felt that Mr. Jednachowski was disabled from the time of his surgery in March 2008 and, given the general amount of time for recovery, for 12 months thereafter, which would have made Mr. Jednachowski ready to work in March 2009. But, she noted that his doctor said he could return to work in September 2008, so it would only be six months in Mr. Jednachowski's case. (R. 114). Dr. Voelpel also said there was a note from physical therapy in November 2008 that said he had no restrictions, but was unable to pinpoint it in the massive record. (R. 117). Later, it appeared she was talking about a note from a Dr. Joseph Tu, dated November 7, 2009, in which the doctor reported that range of motion was normal, but that Mr. Jednachowski was still suffering pain, depression, and taking 3-4 times longer than normal performing activities. (R. 118, 1024-25). Still, Dr. Voelpel interpreted the report as indicating that Mr. Jednachowski wasn't in significant pain and was able to perform daily activities and projects at home. ...


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