United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Valdez United States Magistrate Judge
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.
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.
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).
FACTUAL BACKGROUND 
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.)
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.)
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.)
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.
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.)
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.)
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.)
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.)
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.)
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, ...