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Bereckis v. Colvin

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

January 10, 2017

ANNE BERECKIS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the U.S. Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER [1]

          SIDNEY I. SCHENTCIER United States Magistrate Judge.

         Plaintiff Anne Bereckis ("plaintiff or "Ms. Bereckis") has filed a motion for summary judgment seeking reversal or remand of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB") (doc. # 16: Pl.'s Mem, in Support of Sum. J.). The Commissioner has filed her own motion seeking affirmance of the decision denying benefits (doc. # 23: Def.'s Mot. for Sum. J.). For the following reasons, Ms. Bereckis' motion for remand is granted and the Commissioner's motion is denied.

         I.

         On March 7, 2013, Plaintiff filed a claim for DIB, claiming that she became disabled on February 15, 2013 because of pseudomeningocele, [2] sacral cysts, sacral erosion, coccydynia, [3] pelvic floor dysfunction, intermittent blurred vision, degenerative disk disease, status post spinal surgery, left hemifacial spasm, blepharospasm, [4] anxiety and depression (R. 39, 185, 212). Her claim was denied initially on August 9, 2013 and on appeal on March 24, 2014 (R. 49, 63). Ms. Bereckis, represented by counsel, participated in a hearing before an Administrative Law Judge ('ALJ") on November 19, 2014; a vocational expert ("VE") also testified (R. 16). On March 25, 2015, the ALJ issued an opinion finding that plaintiff was not disabled (R. 81). The Appeals Council upheld the ALJ's determination, making it the final opinion of the Commission (R.l-3). See 20 C.F.R. § 404.981; Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012).

         II.

         Claimant makes four arguments in favor of remand: (1) the ALJ did not identify an evidentiary basis for her residual functional capacity ("RFC") determination; (2) the ALJ wrongfully substituted her opinion for the medical opinion of the state agency psychological consultant; (3) the Appeals Council erred in failing to remand the case based on new and material evidence submitted after the ALJ's decision; and (4) the ALJ's credibility determination was flawed. Because we remand on the ground that the ALJ did not provide an adequate basis for her RFC, we will set forth only that evidence of record that is relevant to that claim.

         Ms. Bereckis is a college graduate who has an MBA in Information Systems (R. 19). At the time of her alleged onset date, Ms. Bereckis worked as a data processing manager, a sedentary job (R. 35, 213), and had been telecommuting from home for at least two years (R. 228). Ms. Berkeckis quit her job in February 2013, citing severe back pain as the reason (R. 20).

         Other than her alleged mental health impairments, the majority of Ms. Bereckis' health issues - including the one implicated by the ALJ's allegedly faulty RFC - concern problems with her back and spine. Ms. Bereckis has had three spinal surgeries, two in 2005 to repair a pseudomeningocele and one in 2010 to fuse her spine in the cervical (C-5 and C-6) region (R. 855-56). The medical record shows that between 2005 and 2013, Ms. Bereckis regularly complained of lumbar, cervical and sacral pain at medical appointments with her spine surgeon, Edward Mkrdichian, M.D., and her internist, David Labotka, M.D. (R. 341, 355, 369, 402, 405, 409, 856, 862, 867, 874). In 2011, Ms. Bereckis began complaining to her doctors that her back and sacral pain was so severe that she was no longer able to sit long enough to do her job (R. 20, 228, 341, 461).[5] Because of the pain she experienced from sitting, Ms. Bereckis stood during parts of her hearing, during some of her visits to her primary care doctor, and during her interview with the DDS field office she visited to apply for benefits (R. 22, 209, 439). At the hearing, Ms. Bereckis testified that she lies down for one to two hours every afternoon to get relief from back pain, and that after her 2010 back surgery, she initially worked from a supine position with a tilted computer desk, but that set-up caused other problems with her back and so she had to discontinue it (R. 24, 29).

         The medical evidence reflects Ms. Bereckis' complaints about several different types of back pain, apparently stemming from different causes. Specifically, in addition to complaining of sacral, lumbar and sometimes cervical pain caused by prolonged sitting and/or working at her computer, Ms. Bereckis also reported to Dr. Labotka and Dr. Mkrdichian at other appointments that she had pain in her upper back, shoulders, and neck (R. 402, 872, 878). At times, these various incidences of pain followed some sort of back yard physical activity such as raking leaves, replanting, hedge trimming, or sanding outdoor chairs (R. 26, 878).

         After Ms. Bereckis' final spinal surgery in 2010, both Dr. Mkrdichian and Dr. Labotka recommended conservative treatment for her pain, consisting primarily of prescription pain medication (R. 861-62). Ms. Bereckis underwent an MRI in 2013 which Dr. Mkrdichian compared to her 2010 MRI, finding that the 2013 MRI showed mild degenerative changes from 2010, but that overall, it was grossly within normal limits (Id.). A treatment note from Dr. Mkrdichian from April 2013 stated that, although Ms. Bereckis' recent MRI revealed several sacral cysts, he did not recommend surgery at that time (R. 856).[6]

         III.

         The ALJ found that Ms. Bereckis had the following severe impairments: status post cervical spine surgery (2010), pseudomengocele and surgery of the lumbar spine in 2005 and cyst of lumbar spine, and hypertension with coronary artery disease (R. 70), In her opinion, which followed the familiar five step process for evaluating disability, the ALJ determined that Ms. Bereckis had an RFC to perform sedentary work, except that she could never climb ladders, ropes or scaffolding and no more than occasional climbing of ramps and stairs, balancing, stooping, bending, twisting, kneeling, crouching or crawling, [7] The ALJ also added a "sit/stand" option to her RFC determination, finding that Ms. Bereckis must be allowed to stand for 1-2 minutes after sitting for 45 minutes. Finally, Ms. Bereckis had to avoid concentrated exposure to work hazards, such as unprotected heights and dangerous moving machinery, and avoid concentrated exposure to uneven surfaces (R. 75).

         In making her RFC determination, the ALJ explained that she was limiting Ms. Bereckis to sedentary work because Ms. Bereckis consistently reported feeling pain after physical activity such as yardwork and gardening (R. 79). The ALJ gave "good weight" to the opinions of the two non-examining DDS doctors, Drs. Wabner and Kim, who reviewed the medical record (R. 80). Specifically, Dr. Wabner opined that Ms. Bereckis could occasionally lift up to ten pounds, could stand and/or walk for two hours in an eight hour day and sit with normal breaks for six hours in an eight hour day (R. 45-46). On reconsideration, Dr. Kim assessed Ms. Bereckis as having the same RFC, including the ability to stand and/or walk for two hours and sit for six hours in an eight hour day (R. 59). In his RFC, Dr. Kim answered "yes" to the question of whether there was a source opinion that was more restrictive than the one he assessed, but did not complete the portion of the form that asked how the two RFCs differed; he also did not identify the source of the conflicting RFC, but we assume he was referring to the opinion of Dr. Labotka, as his is the only other medical opinion in the record that opines as to Ms. Bereckis' RFC (R. 61).

         In crediting the opinions of the non-treating doctors, the ALJ gave "little weight" to the RFC opinion of Dr. Labotka, who opined on March 7, 2014 that Ms. Bereckis was able to stand or walk for one to two hours and sit for less than one hour in an eight hour work day, and to lift no more than five pounds occasionally (R. 80, 107-110). In explaining her rejection of Dr. Labotka's opinion, the ALJ stated that "the course of treatment pursued by the doctor has not been consistent with what one would expect if the claimant were truly disabled, as the doctor has reported. Treatment has consisted of medication. There is no evidence of steroid injection or surgery" (R. 80). The ALJ also noted that Dr. Labotka opined that Ms. Bereckis could sit for less than an hour in an eight hour work day, but that claimant herself testified that she could sit for up to one hour (Id.). Finally, the ALJ stated that Dr. Labotka's RFC was inconsistent not only with Ms. Bereckis' yard work and other ...


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