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Nash v. Colvin

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

September 14, 2016

Scott Nash, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


          Iain D. Johnston United States Magistrate Judge.

         Plaintiff Scott Nash brings this action under 42 U.S.C. §405(g), challenging the denial of social security disability benefits.


         On December 12, 2011, plaintiff filed applications for disability insurance benefits and supplemental security income. He was 35 years old.

         On June 18, 2013, a hearing was held before an administrative law judge (“ALJ”). Plaintiff testified that his back was sore from a recent weather change, which “definitely affects [his] back.” R. 50. He drove about 30 minutes to the hearing. He lived with his wife, who works, and step-daughter, who is eight years old. During the summer, plaintiff would play board games with his step-daughter or do “something simple just to keep her entertained.” R. 52.

         Plaintiff takes 500 milligrams of Vicodin for pain (“probably about four times a week”); Soma, a muscle relaxer, every night; Trazadone and Zoloft also every night; and melatonin as needed for sleep. The Soma makes him “loopy, ” even the day after it is taken. R. 57. He used heating pads for his back and tried physical therapy in 2006-07 but it did not help. His typical day is as follows:

I'll get up and I will let my two dogs out. They're just small dogs. They only have to get let out a couple times a day. Then I'll typically grab a bowl of cereal or something like that and depending on my pain level I'll try to figure out how I can help a little bit of my wife's day, you know. Take a little load off from her cause she does a lot. So whether it's going to the grocery store, say, five minutes away and grabbing a couple groceries then I'll try to do that. I'll try to force myself to do something every day.

R. 53.

         His pain is primarily in his left ankle, with occasional pain in his right ankle. He has had the ankle pain for a “[v]ery, very long time.” R. 55. He injured his back in 2006, and it has “just progressively gotten worse.” Id. His exercise is “[v]ery minimal”:

I can walk maybe 15 minutes throughout the day but that's about-after that the pain starts really ramping up in my ankle and if I go much more than that to maybe like past a half an hour then it's usually I'm on the couch with an ice pack and some Vicodin. So I really try to limit my activities.

R. 59. He “can sit about 15 minutes” but has to “constantly change positions from sitting to laying down to standing up.” R. 60. He uses crutches two or three times a month. His wife is the primary grocery shopper, but he will sometimes help by grabbing a few things from the store, which is five minutes away. He stated that he will “almost use the cart as a crutch” and will “get in and get out as soon as [he] can to get only the necessities.” R. 61.

         He had injections in his back but they did not provide much relief. He sometimes has to elevate his ankle during the day: “If I walk much more than 30 minutes it will usually start to swell and I'll have to ice it and elevate it. That's the only time I really get much relief from it is if I take Vicodin, elevate it, and ice it.” R. 66. He elevates his ankle approximately four times a week. He has no problems getting along with others and typically finishes what he starts.

         On August 2, 2013, the ALJ found plaintiff not disabled. She found that he had the following severe impairments: “osteochondroitis dessicans in both ankles, left greater than right, with pain and intermittent antalgic gait; degenerative disc disease of the lumbar spine, with chronic low back pain; and obesity.” R. 29. As discussed below, she found that he did not meet a listing. She found that he had the residual functional capacity (“RFC”) to perform sedentary work. She gave “no weight” to the opinion of plaintiff's treating physician, another conclusion plaintiff now challenges.


         A reviewing court may enter judgment “affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). If supported by substantial evidence, the Commissioner's factual findings are conclusive. Substantial evidence exists if there is enough evidence that would allow a reasonable mind to determine that the decision's conclusion is supportable. Richardson v. Perales, 402 U.S. 389, 399-401 (1971). Accordingly, the reviewing court cannot displace the decision by reconsidering facts or evidence, or by making independent credibility determinations. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).

         However, the Seventh Circuit has emphasized that review is not merely a rubber stamp. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). A reviewing court must conduct a critical review of the evidence before affirming the Commissioner's decision. Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). Even when adequate record evidence exists to support the Commissioner's decision, the decision will not be affirmed if the Commissioner does not build an accurate and logical bridge from the evidence to the conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008). Moreover, federal courts cannot build this logical bridge on behalf of the ALJ or Commissioner. See Mason v. Colvin, 2014 U.S. Dist. LEXIS 152938, at *19 (N.D. Ill. Oct. 29, 2014). In this appeal, plaintiff raises four arguments in his oversized brief. As discussed below, the Court finds that several of them collectively require a remand.

         I. The Listing Argument

         Plaintiff argues that the ALJ failed to explain “with a sufficient level of detail” why his ankle and walking problems did not satisfy listing 1.02A. This listing states the following:

1.02 Major dysfunction of a joint(s) (due to any cause):
Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e. hip, knee, or ankle), resulting in inability to ambulate ...

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