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Fox v. Colvin

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

September 1, 2016

FRITZ L. FOX, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.


          HON. 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 Fritz L. Fox's claims for Disability Insurance Benefits and Supplemental Security Income. 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 is granted and the Commissioner's cross-motion for summary judgment [Doc. No. 18] is denied.



         On October 25, 2011 Plaintiff filed a claim for Disability Insurance Benefits, alleging disability since December 1, 2010. 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 March 4, 2013. Claimant personally appeared and testified at the hearing and was represented by counsel. Vocational Expert Grace Gianforte also testified.

         On April 26, 2013 the ALJ denied Claimant's claim for Disability Insurance Benefits, finding that he was not disabled under the Social Security Act. The Social Security Administration Appeals Council then denied Claimant'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

         Claimant was born on July 14, 1969 and was 43 years old at the time of the ALJ hearing. Plaintiff's “date last insured”-the date by which he must have proven disability in order to be eligible for benefits-was December 30, 2010. Although he was unable to remember the exact date, Plaintiff stated that he had been shoveling snow in sometime in mid-December 2010 when he hurt his back. (R. 14-15.) He was unable to reach his doctor due to the holiday, and-when he finally was able to be seen in January-his doctor sent him to the emergency room. (R. 15.)

         B. Medical Evidence

         Plaintiff underwent an MRI on January 5, 2011. The MRI showed moderate to severe degenerative disk disease, along with intervertebral disk space loss, bilateral facet hypertrophy, and moderate spinal canal stenosis, as well as moderate-to-severe right and moderate left foraminal stenosis. (R. 264.) On January 11, 2011, Plaintiff saw orthopedic surgeon Dr. Mark Chang. Dr. Chang noted that Plaintiff was in obvious discomfort, and that his range of motion in his back was limited due to pain. (R. 219.) Plaintiff also exhibited mild weakness in his left ankle, as well as decreased sensation in his left foot. Id. Dr. Chang recommended that Plaintiff be admitted to the hospital for further evaluation, after which a plan would be formulated. Id.

         Plaintiff was admitted to the hospital due to the pain and weakness in his left leg. (R. 325.) On January 15, 2011, Plaintiff underwent a laminectomy, partial facetectomy, foraminotomy and discectomy. (R. 329.) At the time of surgery, he reported an eight-month history of gradual lower back pain that had “gotten worse over the last 2 weeks.” (R. 329.) At the time of the procedure, Plaintiff reported “extreme pain, difficulty walking and weakness with the left leg.” Id. During the surgery, Dr. Chang noted that the nerve root was “markedly pinned, ” and that “there was a moderate-sized contained disk herniation.” (R. 330.) Disk material was removed, and the operation was completed. Id. After the procedure, Plaintiff developed an infection at the surgical site, and underwent surgical debridement of the wound. (R. 297.) Dr. Evans noted that, at that time, Plaintiff was “quite severely incapacitated and can only walk a few feet and can only stay in the upright position for a few minutes, ” although he seemed to have “improved after being given an injection of Decadron.” (R. 326.)

         In February 2011, Plaintiff returned for a follow-up with Dr. Chang. At that appointment, Plaintiff reported minimal pain in his back, although he continued to experience numbness and slight weakness in his left leg. (R. 223.) Dr. Chang recommended that Plaintiff begin physical therapy, and that he was able to “increase activity as tolerated.” Id. The following week, Plaintiff again reported numbness in the leg, but “little pain.” (R. 224.) In March, Plaintiff reported that he was “doing better, ” and that he had only “slight pain in his lower back.” (R. 225.) Dr. Chang concluded that Plaintiff had tolerated the home physical therapy and could now advance to outpatient physical therapy, and that he was able to “sit and work as tolerated.” (R. 225.)

         Plaintiff began physical therapy in March 2011. In the treatment notes, Plaintiff reported that he could stand for only 30 minutes, and sit for one hour. (R. 241.) Plaintiff also reported that he would sleep for less than three hours maximum per night, as his pain disturbed him. Id. On April 28, after 18 sessions of physical therapy, Plaintiff had not met his goals of sitting and standing up to 2 hours, lifting up to 20 pounds, and returning to work, among others. (R. 243.) On the same day, Plaintiff also completed a questionnaire regarding his back pain. (R. 248, 251.) In the questionnaire, Plaintiff stated that his pain medication provided him complete relief from his pain. (R. 248.) It was painful to perform personal care activities and Plaintiff needed help doing so, but he was nonetheless “able to manage most of [his] personal care.” Id. The pain prevented him from lifting heavy weights, but Plaintiff could “manage light to medium weights if they [were] conveniently positioned.” Id. He stated that his pain prevented him from walking for more than one-half mile, and that he was able to sit for more than one hour. Id.

         In July 2011, Plaintiff again followed up with Dr. Chang. Dr. Chang reported that Plaintiff “continu[ed] to have a lot of lower back pain and still has persistent weakness with the left leg.” (R. 354.) However, Dr. Chang felt that Plaintiff could still improve, and that he would benefit from more physical therapy. Id. However, Dr. Chang recommended that Plaintiff seek treatment at a different physical therapy facility, as Plaintiff did not “feel that he has been able to get adequate attention and treatment at the physical therapy office” at which he first received treatment. (R. 354.)

         In September 2011, Plaintiff began physical therapy at a new location. (R. 365.) He confirmed that “he did not feel that he got the proper treatment or length of treatment” at his prior therapist, and that this lack of attention had precipitated the change. Id. At this appointment, Plaintiff reported that the “pain gets up to an 8/10 and is aggravated by sitting for a long period[s] of time, walking, going up and down the stairs, squatting, lifting or carrying anything, bending forward and daily activities.” Id. However, Plaintiff reported that the pain was “at a 3/10 pre- and post-physical therapy initial evaluation.” Id. While Plaintiff continued to report that he had numbness in his left leg, the numbness had improved since his surgery. Id. Despite the problems, Plaintiff's prognosis was reported as good. (R. 366-67.)

         At his October appointment, Plaintiff reported pain at ¶ 2/10 level. (R. 368.) He continued to have problems with his gait and used a can while in the community; however, he did not use his cane at the therapy session. Id. Plaintiff had demonstrated “slight improvement in the lower extremity strength and ankle strength and slight improvements in hamstring flexibility.” Id. He was able to “walk better during therapy sessions, ” but was recommended to continue to use the cane in the community. Id. Plaintiff complained of “increased right knee pain and weakness.” Id. Although plaintiff “appear[ed] to be motivated during therapy ...

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