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Ray v. Colvin

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

August 25, 2016

CARYN RAY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          Maria Valdez United States Magistrate Judge

         This action was brought under 42 U.S.C. § 405(g) to review the final decision of the Commissioner of Social Security denying Plaintiff Caryn Ray's claims for Disability Insurance Benefits. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow, Plaintiff's motion for summary judgment [Doc. No. 14] is granted and the Commissioner's cross-motion for summary judgment [Doc. No. 22] is denied.



         On May 4, 2011, Plaintiff filed claims for both Disability Insurance Benefits, alleging disability since June 8, 2009. The claim was denied initially and upon reconsideration, after which Plaintiff timely requested a hearing before an Administrative Law Judge (“ALJ”), which was held on October 1, 2012. Plaintiff personally appeared and testified at the hearing and was represented by counsel. Vocational expert Brian L. Harmon also testified.

         On November 5, the ALJ denied Plaintiff's for both Disability Insurance Benefits, finding her not disabled under the Social Security Act. The Social Security Administration Appeals Council then denied Plaintiff's's request for review, leaving the ALJ's decision as the final decision of the Commissioner and, therefore, reviewable by the District Court under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).


         A. Background

         Plaintiff was born on March 23, 1964 and was 45 years old at the time of the ALJ hearing. Most recently before her alleged date of disability, Plaintiff had worked as a cake decorator and assistant manager for a commercial bakery. (R. 293.)

         B. Medical Evidence

         Plaintiff appears to have reported back pain beginning in 2005. In March of that year, she underwent an MRI, after which she was diagnosed with advanced degenerative disk disease. (R. 551.) She was seen by Dr. Volodimir Markiv in regard to her spinal pain, which was aggravated by lifting, bending forward, and stretching her arms above her head. (R. 528.) At that time, Plaintiff did not have weakness or numbness in legs or arms, and her straight leg-raise test was negative at that time. (R. 528-29.) She was prescribed Norco for pain with the possibility of a branch block injection and scheduled for follow-up care. (R. 529-30.) She continued to report pain in the following months, and she was additional prescribed Neurontin and Avinza. (R. 522-27.) The medication helped with the pain; however, Plaintiff began reporting a tingling sensation in her right leg. (R. 524.) Through early 2007, Plaintiff had reported improvement in her pain, and she demonstrated negative straight leg-raise tests. (513-21.) By February of 2007, however, the tingling sensation in her arm had continued, and Dr. Markiv found weakness in her right arm. (R. 512.) By November 2007, Dr. Markiv had noted limitation on Plaintiff's cervical spine extension with right lateral rotation. (R. 492.)

         Plaintiff underwent a steroid injection in March, 2008, which provided some relief. (R. 486.) She was still working in the bakery but was experiencing pain as well as weakness in her right arm. Id. By April, 2008, Plaintiff reported to Dr. Markiv that she had been reassigned to a different job because she was unable to complete the requirements of her former job due to the pain, which was worsening. (R. 484.) Dr. Markiv's physical examination noted that Plaintiff's right head motion was limited due to pain, and that the numbness and weakness in her right arm persisted. Id. Dr. Markiv suggested that, if the pain did not decrease with adjustments in medication, Plaintiff should consider radiofrequency ablation. Id. In July 2008, Plaintiff's right-sided straight-leg raise test was positive, although her motor function was “relatively preserved” in her lower extremities. (R. 478.)

         Plaintiff began seeing Dr. Mark Chang, an orthopedic surgeon, in March 2008. She reported that the pain had begun in 2006 after a work-related injury. (R. 581-82.) Dr. Chang noted the decreased sensation and weakness in Plaintiff's right arm, and found that, as Plaintiff had “failed good efforts at conservative treatment and has radicular pain for almost two years, [he] would recommend consideration for surgery.” Id. Dr. Chang planned to reevaluate after an updated MRI. Id. During 2008, Plaintiff underwent physical therapy for her neck and arm problems. (R. 608-22.) She reported that physical therapy was improving her strength, although she still reported weakness in her right arm. (R. 474.) In August 2008, she again demonstrated a positive right-sided straight leg-raise test, as well as decreased strength in her right foot extension. Id.

         Plaintiff underwent another steroid injection in December 2008. (R. 464-66.) In the post-operative evaluation, Plaintiff reported a 50 percent improvement in pain intensity in her lumbar spine, although her symptoms otherwise remained the same. (R. 466.) In a November 2008 follow-up, Dr. Markiv found negative straight leg-raise tests bilaterally, as well as preserved motor function in Plaintiff's legs. However, Plaintiff's complaints were aggravated by twisting, reaching, or lifting, and well as complaints of numbness in the hands, continued throughout 2009. (R. 433, 437, 443, 445, 447) After seeing the MRI in May 2008, Dr. Chang recommended further physical therapy, and found that Plaintiff could continue to work under certain restrictions. (R. 583.) However, Dr. Chang recommended that Plaintiff take time off from work to concentrate on physical therapy. (R. 584-85.) Based on that progress, Dr. Chang later recommended that Plaintiff remain off work until she gained more strength and flexibility. (R. 587.)

         However, while Plaintiff's neck pain continued to improve, her back pain had worsened. (R. 588.) In September 2008, Dr. Chang noted that flexion in Plaintiff's lower back was limited, and ordered an MRI of the lumbar spine. (R. 588.) That MRI revealed severe disk degeneration, and Dr. Chang he determined that it was not safe for Plaintiff to return to work; instead, he recommended four additional weeks of physical therapy, at the end of which he anticipated she could return to work with light duty restrictions, (R. 589), which was subsequently approved. (R. 590.) After Plaintiff was able to maintain activity at work, Dr. Chang revised her restrictions upward, to a maximum lifting capacity of 25 pounds, in January 2009. (R. 589-95.)

         After being released to work on these restrictions, Plaintiff reported that having to drag a box at work had aggravated her problems, although the pain had otherwise continued to be managed with medication. (R. 596.) By June of 2009, however, Plaintiff had reported that she was receiving complaints about her performance at work because she was unable to manage due to her pain. (R. 597.) Her neck and arm pain had increased, and Dr. Chang noted that the pain had worsened to the point that he “may need to consider surgery, ” despite his earlier statements to the contrary. Id. Dr. Chang noted that Plaintiff's “condition has definitively deteriorated, ” which he attributed to her work. Id. He recommended again that she take time off work, and expressed that he would potentially have to revise her work restrictions. Id. After nearly a month off from work, Dr. Chang noted that Plaintiff's symptoms had not improved. (R. 599.) He recommended resuming injection treatments and considering surgery. Id. He noted that he did not feel that it was safe for Plaintiff to return to work, even on light duty, and that she should remain off from work for an additional five weeks until reassessment. Id. Dr. Chang noted that the goal of the injections was to determine if surgery could be avoided, which he considered preferable. (R. 602.) However, there were apparently problems with insurance approval for Plaintiff's injection treatment, which delayed receipt. (R. 600-06.) By January 2010, Dr. Chang reported that Plaintiff's condition had been worsening. He still recommended injection treatments but, depending on the new MRIs, considered revising the level of injections (R. 607.) As of March 2010, Plaintiff had been terminated from her position, making potential future injections doubtful. (R. 869.)

         In June 2010, medical consultant Dr. Frank Jimenez completed an analysis of Plaintiff's RFC. (R. 724-731.) In it, Dr. Jimenez concluded that Plaintiff was capable of occasionally lifting 20 pounds and frequently lifting 10 pounds. (R. 725.) Plaintiff was able to stand for two hours and sit for six hours of an eight hour workday. Id. Dr. Jimenez concluded that Plaintiff's allegations as to a 10 pound lifting restriction were “not substantiated by evidence in the file, ” and that-while there was a statement from Plaintiff's treating physician-it was too old to be considered. (R. 731.)

         In July 2011, Dr. Mahesh Shah performed a consultative examination for the state Bureau of Disability Determination Services. (R. 880-83.) In Plaintiff's back, Dr. Shah noted 70 degree flexion, 10 degree extension, and straight leg raising of 45 degrees on the right and 55 degrees on the left. (R. 882.) While Plaintiff did not use any assistive devices for walking, her gait was slow, and “[s]he had difficulty with heel walking and toe walking on the right side, ” and “was able to squat partially.” (R. 882-83.) However, Dr. Shah recorded that Plaintiff's motor strength was 5/5 in upper and lower extremities. (R. 883.)

         On August 30, 2011, medical consultant Dr. James Hinchen performed an analysis of Plaintiff's residual functional capacity. (R. 902-09.) Mirroring the findings of Dr. Jimenez, Dr. Hinchen concluded that Plaintiff could occasionally lift 20 pounds and frequently lift 10 pounds. (R. 903.) She could stand for six hours of an eight-hour work day, and could sit with normal breaks for six hours of an eight-hour workday. Id. On January 19, 2012, ...

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