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Cukovic v. Colvin

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

August 15, 2016

CAROLYN W. COLVIN, Acting Commissioner of the U.S. Social Security Administration, Defendant.


          SIDNEY I. SCHENKIER United States Magistrate Judge

         Plaintiff Suzana Rodojcic Cukovic seeks reversal and remand of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for disability insurance benefits under Section 216(1) and 223(d) of the Social Security Act (doc. #13: PL's Mem.). The Commissioner seeks affirmance of the decision denying benefits (doc. # 20: Def, 's Mem.). The motion is fully briefed. For the following reasons, Ms. Cukovic's motion is granted and the Commissioner's motion is denied.


         Ms. Cukovic applied for benefits on October 22, 2008, alleging she became disabled on May 1, 2007 due to arthritis in her arms, elbows, hip, and legs, as well as because of a pinched nerve (R. 211, 354-56, 378-S7).[2] Her date last insured was December 31, 2012 (R. 21, 55-56). The application was denied initially on February 10, 2009, and upon reconsideration on May 19, 2009 (R. 211-12). Ms. Cukovic, represented by counsel, appeared and testified before administrative law judge ("ALJ") Patricia A. Bucci on December 6, 2010 (R. 172-210). Vocational expert ("VE") Jill Radke also testified. (Id.). The ALJ issued her written decision denying Ms. Cukovic's application on January 19, 2011 (R. 216-26). The Appeals Council granted review and remanded the case for further proceedings on May 9, 2012, directing that the ALJ further consider Ms. Cukovic's RFC regarding her concentration abilities and possible mental impairments (R. 232-33).

         ALJ Marlene R. Abrams held a new hearing on January 28, 2013, at which Ms. Cukovic was represented by counsel, and VE James Radke and Medical Expert ("ME") Hugh Savage testified (R. 78-171). The case was then reassigned to David Skidmore, another ALJ, who held a third hearing on February 12, 2014 (R. 52-77). Ms. Cukovic was represented by counsel and VE Ed Pagella testified (Id.). The ALJ issued his decision denying Ms. Cukovic's application on June 24, 2014 (R. 21-44). The Appeals Council denied Ms. Cukovic's request for review and her request to reopen the decision, making the ALJ's ruling the final decision of the Commissioner (R. 1-4, 8). See Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012).


         We begin with a summary of the administrative record. Part A briefly sets forth Ms. Cukovic's background, followed by her medical record in Part B. In Part C, we discuss the testimony provided at the hearing before the ALJ. Part D sets forth the ALJ's written opinion.


         Ms. Cukovic was 29 years old at her alleged disability onset date, and she was 36 years old at the time of her last hearing (R. 52, 211, 354-56). Ms. Cukovic completed high school and obtained her loan originator's license (R. 89). Ms. Cukovic's past work included working in data entry and as a loan originator (R. 380). Ms. Cukovic claims she stopped working on May 1, 2007 due to her medical conditions (R. 379). This is the same day as her alleged disability onset date (R.21).

         B, While not an exhaustive recitation of the voluminous medical evidence contained in the 1, 247-page record, the discussion below provides a general overview. Ms. Cukovic specifically challenges the weight accorded to the medical opinions of Drs. Jasminka Kostic, Herbert Engelhard, and Julian Freeman, which are summarized below.

         Ms. Cukovic was in an automobile accident on June 6, 2006 (R. 485-87). Her diagnoses the day after included a headache and pain in her neck, left shoulder, back, and lower back (R, 487). MRIs on June 14, 2006 indicated her brain and thoracic spine were normal, but that there were degenerative changes in her C5-6 and C6-7 discs in her cervical spine, 3 to 4 mm disc herniations at the C5-6 and C6-7 levels, and a generalized left lateral recess narrowing at the C6-7 level (R. 497-99). Ms. Cukovic continued to complain about pain to various physicians, with a record from Neurologist Milena Appleby from December 11, 2006 specifically indicating neck pain, lower back pain, dizziness, migraines three to four times per week, and tingling on her left side (R. 483, 488-99, 556-60). Ms. Cukovic's complaints of back pain, headaches, bilateral elbow pain, and depression continued through 2010 (R. 875-80). in early 2011, Ms. Cukovic was prescribed Norco twice per day by Dr. Sanija Bajramovic, and throughout 2011 she complained of headaches, neck pain, lower back pain, dizziness, and elbow pain to Drs. Bajramovic and Jasminka Kostic (R. 864, 870-74, 978-1007, 1030-35). Ms. Cukovic states in November 2011 that she experienced impaired vision, slurred speech, and nausea with her headaches (R. 950, 954). Medical records from Dr, Susarme Gonzalez show Ms. Cukovic took ten Norco tablets per day as of August 7, 2012 (R. 1097).

         Ms. Cukovic also was treated by Dr. Sylvia Santos, qualified mental health professional, Marie Richard-Jackson, and licensed social worker, Francois Jolie, for mental health issues, including depression and anxiety, for the period of 2009 to 2012 (R. 577, 632-78, 770-71, 864, 870, 906, 1040-68, 1078-83). She took Lorazepam, Xanax, Abilify, and Lexapro for anxiety and nerves (R. 577, 770). Ms. Cukovic was diagnosed with bipolar disorder and major depressive disorder in 2009 (R. 583-84).

         Ms. Cukovic's treating physicians offered opinions concerning her limitations. Dr. Kostic treated Ms. Cukovic from some earlier point (unspecified in the record) until December 12, 2006, and then again after December 20, 2008 (R. 451). On December 5, 2010, Dr. Kostic noted that Ms. Cukovic had experienced neck pain, lower back pain, bilateral elbow pain, and major depression since June 7, 2006 (R. 766-69).[3] Dr. Kostic stated that because of her medical issues, Ms. Cukovic could only sit or stand for ten minutes, could never lift more than ten pounds and only rarely lift less than ten pounds, had significant limitations on her ability to use her hands, fingers, and arms, had pain that constantly interfered with her concentration, and had emotional factors contributing to the severity of her pain (Id.). Dr. Kostic opined that Ms. Cukovic would miss more than four days of work each month (R. 769). Dr. Kostic further opined that Ms. Cukovic was not a malingerer (R. 766).

         Treating physician, Dr. Engelhard, stated on February 12, 2013 that he had treated Ms. Cukovic since November 15, 2011 (R. 1184-86). Dr. Engelhard noted that Ms. Cukovic had severe chronic degenerative disc disease and chronic lower back pain that presented with symptoms of neck, arm, back, and leg pain, as well as numbness and weakness in her arms (Id.). Dr. Engelhard stated Ms. Cukovic could never crawl, work above her shoulders, perform gross or fine manipulation, and that she could only seldomly sit, stand, or walk in an eight-hour day, climb ladders or stairs, twist, bend or stoop, squat or kneel, or reach (R. 1185). Dr. Engelhard opined that Ms. Cukovic could not sustain a regular 40-hour week, that she would need to miss work frequently, and that her ability to concentrate was compromised (Id.). He further opined that Ms. Cukovic had difficulties concentrating because of medications such as hydrocodone (R. 1186). Dr. Engelhard stated that Ms. Cukovic's complaints were consistent while he saw her over a period longer than one year (Id.).

         Dr. Freeman was retained by Ms. Cukovic to perform a medical record review and he found that Ms. Cukovic's migraine headaches met Listing 11.03 since at least May 2008; and, that her spinal stenosis in the cervical spine with radiculopathies and cord impingement equaled Listing 1.04A, C, and 11.08 since at least November 2009 (R. 1198). Dr. Freeman opined the headaches would cause at least one instance of inability to work per week, lasting six to eight hours (R. 1204). Dr. Freeman limited Ms. Cukovic to lifting only two to three pounds occasionally as of November 2009, and opined that as of May 2010, Ms. Cukovic had limitations ...

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