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Lutz v. Colvin

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

December 5, 2016

Neil Lutz, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


          Iain D. Johnston United States Magistrate Judge

         Plaintiff Neil Lutz brings this action under 42 U.S.C. § 405(g), seeking a remand of the decision denying him social security disability benefits. For the reasons set forth below, the decision is remanded.

         I. BACKGROUND[1]

         On June 20, 2011, Plaintiff filed applications for disability insurance benefits and supplemental security income. Plaintiff alleged a disability beginning on September 1, 2008, because of chronic neck and back problems and depression and anxiety.[2] R. 220, 228, 270.

         In 2007, Plaintiff reported to his primary care physician that he was having headaches on a daily basis, noting that he was in a car accident when he was 16 years old and injured his neck. R. 363. An MRI revealed disk bulging and herniation. R. 363. Plaintiff was prescribed Flexeril for muscle spasms and Vicodin for his pain. R. 364.

         In September 2008, Plaintiff began treating with a spinal surgeon, Dr. Christopher Silva, due to complaints of back and left leg pain. R. 413. He was diagnosed with a disk herniation at ¶ 5-S1 with radiculopathy.[3] R. 414. On September 17, 2008, he received an epidural injection, but it did not relieve his back pain. R. 423. Subsequently, he underwent a total of three back surgeries and a neck surgery to relieve his pain.

         The first surgery, a L5-S1 laminotomy with partial discectomy, occurred on September 29, 2008. R. 431. Following surgery, Plaintiff reported that his leg pain was gone, and he returned to his job as a welder. R. 390, 412. Plaintiff continued to work through the end of December 2008, when he reinjured his back wrestling with his son. R. 384. Plaintiff went to the emergency room and was given Flexeril and Vicodin for his pain. R. 384. An MRI from January 2009 revealed small recurrent disk herniation at ¶ 5-S1. R. 405. Plaintiff was given a Medrol dosepak and was told to get an epidural injection. R. 405. His doctor recommended surgery if Plaintiff did not improve with this treatment. R. 405.

         In January 2010, Plaintiff was still taking Flexeril and Vicodin for his pain. R. 351. He also started seeing a new doctor, Dr. Kevin Draxinger, after he fell and experienced pain radiating down his left leg that left him barely able to walk. R. 351. Due to continued disc herniation at ¶ 5-S1 and some foraminal narrowing at ¶ 4-5, Plaintiff underwent a second back surgery on January 18, 2010. R. 352, 429. Dr. Draxinger performed an L5-S1 revision discectomy. R. 352, 429.

         In the weeks following his surgery, Plaintiff still complained of pain and began taking Percocet. R. 353. By February 2010, Plaintiff reported feeling somewhat better, taking only 3 Percocet a day. R. 354. In March 2010, Plaintiff still had periodic “stinging in his leg, ” and began using Vicodin instead of Percocet. R. 355, 365. Plaintiff also reported ongoing problems with his neck, which caused “headaches fairly often.” R. 355. A cervical MRI revealed a “2- level disk bulging and herniation, ” which was consistent with the cervical MRI taken in 2007. R. 356. Plaintiff's doctor discussed the possible need for cervical disk replacement surgery. R. 356.

         In April 2010, Plaintiff returned to see Dr. Silva, complaining of leg and back pain and weakness despite his most recent surgery. R. 396-98. Dr. Silva diagnosed Plaintiff with recurrent disk herniation at ¶ 5-S1 with severe radiculopathy and disk herniation at ¶ 4-5 with radiculopathy. R. 393, 425. As a result, Plaintiff had back surgery a third time on May 20, 2010. R. 424. Dr. Silva performed a lumbar fusion at ¶ 4 to the sacrum and L4-S1 laminectomy. R. 424. Following surgery, Plaintiff still had pain in his back and left leg, and he was prescribed Norco and Flexeril. R. 381-82. In June and July 2010, Plaintiff still had back and leg pain and complained of side-effects from his continued use of narcotic pain medication. R. 366, 389. Plaintiff's MRI from July 2010 showed no disk herniation. R. 422.

         On August 18, 2010, Plaintiff followed up with Dr. Silva, complaining of left leg pain, despite the use of pain medication. R. 388. Dr. Silva's examination revealed that Plaintiff had some tenderness in his back and diminished sensation in his calf, but had normal motor strength and “no residual stenosis.” R. 388. In September 2010, Plaintiff was limiting his use of Vicodin by using Gabapentin, but complained that it did not help with his chronic back pain. R. 367. In October 2010, Plaintiff reported treating at Rosecrance to eliminate his dependence on narcotic pain medication and his desire to stay off narcotics. R. 368. Nevertheless, by September 2011, Plaintiff again was dependent on Norco for pain control. R. 507.

         In June 2011, Dr. Silva evaluated Plaintiff's neck pain. R. 387. An MRI revealed “[c]ervical degenerative disk disease at ¶ 3-4 and C4-5 with minimal and episodic radiculopathy.” R. 387. Dr. Silva prescribed physical therapy, noting that if this did not work, Plaintiff would be a candidate for cervical epidural injections. R. 387. In September 2011, Dr. Silva noted that Plaintiff may need treatment for his neck beyond injections, but that Plaintiff's lumbar spine should be dealt with first. R. 542. Dr. Silver opined that there was nothing else that could be done for Plaintiff's back, but ordered a CT scan of his lumbar spine to evaluate healing of the prior surgery. R. 542. The CT scan revealed pseudoarthrosis[4] at ¶ 5-S1. R. 539-40. In November 2011, Dr. Silva opined that this may require surgical reconstruction. R. 540. Plaintiff also underwent an EMG, which was normal, except for “some evidence of polyneuropathy.”[5] R. 539, 543.

         On October 3, 2011, Plaintiff received a cervical injection for his neck pain. R. 588. Plaintiff did not get relief from the first injection, so he received a second one on October 24, 2011. R. 587. In November 2011, Dr. Silva informed Plaintiff that his neck would require a fusion from C3-5, but Plaintiff would have to stop smoking first. R. 539-40. By the end of November 2011, Plaintiff quit smoking and was ready to proceed with surgery on his neck, but ultimately cancelled surgery in January 2012 because he was “unemployed and unable to work.” R. 566-67.

         In February 2012, Plaintiff went to the emergency room complaining of headaches. R. 654. Plaintiff was given Norco at the hospital to relieve his pain. R. 667. In April 2012, Plaintiff again quit smoking and his surgery was rescheduled for June 2012. R. 565-66. However, due to “transportation difficulties” Plaintiff again canceled the surgery. R. 564. In August 2012, Plaintiff returned to the emergency room complaining of headaches. R. 697. He received a prescription for Ibuprofen and Norco. R. 697. In September 2013, ...

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