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Gajos v. Colvin

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

December 5, 2016

CHESTINE GAJOS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.

          MEMORANDUM AND OPINION ORDER

          Robert M. Dow, Jr. United States District Judge

         This matter is before the Court on Plaintiff Chestine Gajos's motion seeking review of the Commissioner of Social Security's decision to deny her application for disability benefits [1, 27]. Plaintiff asks the Court to reverse the decision of the Administrative Law Judge (“ALJ”) denying her benefits and remand the case to the Social Security Administration (“SSA”) with instructions to grant Plaintiff's application for disability benefits. For the reasons stated below, the Court grants in part Plaintiff's request and remands this case for further proceedings consistent with this opinion.

         I. Background

         A. Procedural History

         In April 2012, Plaintiff filed applications for disability insurance benefits and supplemental security income, alleging that she became disabled on June 3, 2010. [Administrative Record (“AR”), at 20; see also 32, at 1.] Plaintiff's applications were denied initially on July 11, 2012 and upon reconsideration on October 12, 2012. [AR, at 20.] Plaintiff testified at a hearing before an ALJ on April 11, 2013. [AR, at 20.] On April 29, 2013, the ALJ issued a decision concluding that Plaintiff was not disabled because she could perform a significant number of jobs in the national economy. [AR, at 32.] Plaintiff appealed this decision to the Appeals Council of the SSA on June 4, 2013, arguing that the ALJ did not fully take into account the testimony of the VE, who testified that there would be no jobs available to someone in Plaintiff's position who had to be absent from work an average of one and a half days per month for medical treatment. [AR, at 14-15.] On July 1, 2014, the Appeals Council denied Plaintiff's request for review of the ALJ's decision. [AR, at 2-5; see also 27, at 2.] Thus, the ALJ's decision became the final decision of the Commissioner, reviewable by this Court. 20 C.F.R. § 404.981; Luna v. Shalala, 22 F.3d 687, 689 (7th Cir. 1994). Plaintiff filed a timely complaint [1] in this Court on November 19, 2014.

         B. Factual Background

         Plaintiff was born on April 4, 1961 and was forty-nine years old on her alleged disability onset date of June 3, 2010. [See AR, at 31.] She has a high school education and two years of college education and is able to communicate in English.[1] [AR, at 31, 69.] Plaintiff has past work experience as a retail manager. [AR, at 31.] ¶ 2009 and 2010, Plaintiff worked at Homeowner's Bargain Outlet as an assistant furniture manager. [AR, at 42.] Before that, she worked at Burlington Coat Factory. [AR, at 42.] Plaintiff testified that she stopped working after having two accidents while working at Homeowner's Bargain Outlet. [AR, at 42-44.]

         C. Relevant Medical Evidence

         Plaintiff alleges disability due to three herniated discs in the back, an injured left hip, shoulder and neck, pain in the right buttock cheek, and a left arm injury. [AR, at 213.] These injuries stem from two accidents that allegedly occurred at her last job at Homeowner's Bargain Outlet. [AR, at 25, 42-44.] On December 14, 2009, Plaintiff slipped on dirt in a stockroom, fell, and fractured her cervical spine and hurt her back. [AR, at 25, 43, 287, 302.] Plaintiff testified that she continued to work after this first accident even though she was in pain. [AR, at 43.] The second accident occurred on March 16, 2010. [AR, at 25, 43.] A coworker was helping Plaintiff move a fifty-to-sixty pound table down from a rack when the table slipped out of the coworker's hands. [AR, at 287; see also AR, at 43.] Plaintiff was able to catch the table just as it hit her forehead, but Plaintiff's head was pushed back by the table. [AR, at 287.] She was able to control the table and put it on the floor. [AR, at 287.] Plaintiff testified that catching the table caused nerve damage to her left arm and shoulder to her neck. [AR, at 43.]

         On March 4, 2010, Plaintiff saw Dr. Griffin, her treating physician, who reviewed an x-ray of her hip and back. [AR, at 553-54.] He noted no fracture, no significant arthritis of the back, and “no evidence of acute osseous abnormalities to the hips” and stated that there “may be some very minimal degenerative changes to the right hip.” [AR, at 553.] Dr. Griffin referred Plaintiff to physical therapy. [AR, at 582.] She was evaluated by a physical therapist on March 17, 2010 for back pain and pelvic pain, and the physical therapist noted that her pain was “intermittent and variable, rated 0/10 to 8/10” and that “[s]ymptoms have been gradually improving.” [AR, at 582.] The physical therapist's assessment states:

Patient presents with signs and symptoms of a right posterolateral derangement per McKenzie classification in the lumbar spine. There may also be some residual pain due to her fall in December 2009. She has significant tenderness under the right ischial tuberosity. There is no pain in this area except when she is sitting on it and applying pressure to that specific area. She should respond well to mechanical diagnosis and therapy. There is some question regarding patient's compliance with therapy due to her cancelling to schedule appointments for evaluation, and she is unwilling to schedule more than 1 followup [sic] appointment at a time due to her busy schedule.

[AR, at 583.] The physical therapist stated that Plaintiff was to be seen twice per week for up to ten visits as needed. [AR, at 583.] The final report from this physical therapist, dated May 5, 2010, states that Plaintiff had attended seven physical therapy sessions since March 17, 2010 but that she had been noncompliant, frequently late for appointments, and cancelled three out of ten scheduled appointments. [AR, at 585.] The report states that greater than thirty minutes of driving caused Plaintiff pain, but that she did not consistently use lumbar support when driving, despite the fact that this consistent use of lumbar support was one of her physical therapy goals. Plaintiff had restored eighty percent of her range of motion for forward bending and back pending, but the pain was intermittent. Plaintiff was discharged from physical therapy. [AR, at 585.]

         On June 7, 2010, Plaintiff complained of right back pain and discomfort in the left elbow at Good Samaritan Hospital emergency department. [AR, at 287.] “Re-evaluation in the emergency department suggested that the left arm pain was chronic but that physical examination was unremarkable and that [Plaintiff] might have tendinitis.” [AR, at 287.] On June 16, 2010, Plaintiff saw Dr. Griffin, who completed a workers' compensation work status report indicating that Plaintiff was “unable to perform any work at this time” due to “sciatica back and arm pain” and prescribed ibuprofen and Norco. [AR, at 288, 557.] An x-ray of the lumbar spine reviewed by Dr. Griffin on June 28, 2010 revealed “[m]inimal disc bulge at ¶ 3-L4 with minimal bilateral neural foraminal narrowing.” Dr. Griffin recommended that Plaintiff see Dr. Heller about this. Dr. Griffin also noted “posterior central disc protrusion at ¶ 5-S1 without significant central canal stenosis or neural foraminal narrowing” but stated that “[t]his isn't as big of a problem.” [AR, at 546.] On June 30, 2010, Plaintiff saw Dr. Heller, who thought that Plaintiff might have left lateral epicondylitis (also known as “tennis elbow”). [AR, at 288.]

         On August 9, 2010, Plaintiff received a physical therapy evaluation for her arm pain. [AR, at 618.] The physical therapy report notes that Plaintiff rates her pain as 4/10 to 9/10, that the pain is constant and variable, and that Plaintiff also complains of numbness, tingling, and some weakness in the left arm. [AR, 618.] The report states that “Patient has mildly decreased strength in her left upper extremity due to pain with resisted movements in all directions. Left arm strength grossly graded 4/5. Right grip strength 45 pounds and left grip strength 10 pounds.” [AR, at 618.] The physical therapist stated that Plaintiff was to be seen two times per week for up to twelve visits if needed. [AR, at 619.] A physical therapy progress report dated September 16, 2010 states that Plaintiff completed eleven visits from August 9, 2010 to September 16, 2010. [AR, at 615.] The report notes that all of Plaintiff's goals have been met or partially met and that her left grip strength had been increased from ten to twenty pounds of force. The report indicates that Plaintiff did not rate her pain but claims that it is “better” and that “she's able to do a lot of activities at this time.” The report states, however, that “Patient is not progressing adequately with regard to symptoms. She is making strength gain which does not seem to be reflected in grip strength measures.” [AR, at 615.]

         On August 25, 2010, Plaintiff had a follow-up visit with Dr. Griffin. Dr. Griffin noted that Plaintiff's arm pain was at a level of 7/10 to 10/10 and that it “hurts in finger and mostly in elbow and goes up to neck and back.” [AR, at 354.] He also noted that Plaintiff has had back pain since her fall in December 2009 and that it hurts continuously, despite physical therapy and medication. [AR, at 354.] Plaintiff rated her back pain as 5/10 to 7/10 and noted that “it is better and lower in pain.” Dr. Griffin filled out a workers' compensation work status report indicating that Plaintiff was “unable to perform any work at this time” due to epicondylitis, elbow pain, and back pain. [AR, at 559.] On September 23, 2010, she had another follow-up with Dr. Griffin. [AR, at 351.] Dr. Griffin's report stated that Plaintiff “is ready to go back to work” on October 4, 2010, but that she would need work restrictions. [AR, at 352.] Dr. Griffin also filled out a workers' compensation work status report noting Plaintiff's diagnosis of epicondylitis, elbow pain, and back pain, and indicating that Plaintiff could return to work on October 4, 2010 with the following restrictions: occasional lifting and carrying restricted to fifteen pounds, occasional climbing stairs and ladders, occasional squatting, bending, and kneeling, occasional grasping and clasping, and no limiting on sitting, standing, or walking. [AR, at 560.]

         On October 21, 2010, Plaintiff underwent an independent medical evaluation by Dr. Daniel Nagle for insurance purposes. Dr. Nagle noted that Plaintiff had been going to therapy and is “definitely better” since the March 2010 accident. [AR, at 288.] Dr. Nagle recorded that Plaintiff “states her strength is better but she is not as strong as she once was.” [AR, at 288.] Further, “[f]oward flexion causes discomfort in the shoulder and arm, ” but “[e]xtension of the wrist and fingers against resistance produces no pain” and “[f]lexion of the wrist and fingers while the forearm is pronated produces no pain.” [AR, at 288-89.] Dr. Nagle also stated that he believed Plaintiff “suffered a strain to her left biceps and left upper extremity in general, ” “may have suffered an injury to her cervical area, ” and “has some evidence of shoulder impingement.” [AR, at 289.] He noted that Plaintiff “is not able to work without restrictions at this point” and that “she is clearly unable to do any heavy lifting using her left upper extremity though she is getting stronger.” [AR, at 289.]

         On November 1, 2010 Plaintiff underwent independent medical evaluation by Dr. Goldberg. [AR, at 716.] Plaintiff reported lower back pain but stated that she has improved since her December 2009 accident. Dr. Goldberg stated that based on the records he reviewed, “it appears the patient did sustain an injury to her lumbar and pelvic region. I feel it is reasonable for her to proceed with a sacroiliac joint injection. If this provides relief, she can work full duty and would be maximum medical improvement.” [AR, at 719.] He also stated that “[a]t the present time, she can return to work with a 25-pound lifting restriction.” [AR, at 719.]

         Plaintiff had several follow-up visits with Dr. Griffin over the next few months. Dr. Griffin's report from November 4, 2010 indicated that Plaintiff stated that “[s]he is not ready to go back to work; was going to return in October 2010 but Harford insur [sic] company wanted 2nd opinion And [sic] they are doing more tests-she will get cortisone shot in back.” [AR, at 347.] According to Dr. Griffin, Plaintiff's return to work was “up in the air [a]nd should come from her work comp doctors.” [AR, at 348.] However, Dr. Griffin also filled out a workers' compensation work status report on November 4, 2010, which indicates that Plaintiff was “unable to perform any work at this time” due to “epicondylitis, elbow pain, back pain, insomnia, and depression.” [AR, at 561.] On December 14, 2010, her overall status was unchanged. [AR, at 343.]

         On February 16, 2011, Dr. Griffin noted that she was sleeping about eight hours and that her concentration was better. [AR, at 337-38.] Dr. Griffin also filled out a workers' compensation work status report indicating that Plaintiff was “unable to perform any work at this time” due to epicondylitis, below pain, and back pain. [AR, at 563.] On February 21, 2011, Plaintiff saw Dr. Park, who noted Plaintiff's shoulder and elbow pain and problems with Plaintiff's central discs. [AR, at 564.] Dr. Park completed a workers' compensation work status report indicating that Plaintiff could return to work with the following limitations: restricted to two pounds of occasional carrying and lifting, no climbing ladders or stairs, no squatting, bending, or kneeling, and no grasping or clasping. [AR, at 564.] On April 13, 2011, Plaintiff saw Dr. Griffin, who noted that Plaintiff was sleeping less, about six interrupted hours, but that Zoloft was helping. [AR, at 334.] Dr. Griffin also filled out a workers' compensation work status report indicating that Plaintiff was “unable to perform any work at this ...


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