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Smith v. Colvin

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

January 11, 2017

Thomas Smith, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


          Iain D. Johnston United States Magistrate Judge.

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


         Plaintiff worked as a welder for a number of years. In late 2013, when he was 41 years old, he began experiencing pain and numbness on his right side. After an MRI showed degenerative disc disease, he had spinal surgery (cervical laminoplasty at ¶ 3-6), performed by Dr. Christopher Sliva, in the middle of December 2013. Plaintiff returned to work, but kept experiencing problems, causing him to stop working in April 2014. On June 9, 2014, Dr. Sliva operated a second time, performing a cervical discectomy and fusion at ¶ 4-5 and C5-6. R. 244. On June 18, 2014, plaintiff filed his disability insurance application. R. 17.

         On March 26, 2015, a hearing was held before the administrative law judge (“ALJ”). Plaintiff testified that he completed the ninth grade; that he drove a car once a week; that he lived with his wife and 19-year old son; that his wife worked part-time; that could shower and bathe himself, although he had trouble washing his hair; that he did some chores around the house such as sweeping “a little bit” and picking things off the floor. On a typical day, he would “just try to get comfortable, sit for a little bit, lay down [] on and off, get up and move around.” R. 37.

         Plaintiff stopped working because he “had pain shooting down [his] right side, and [his] hand was going numb.” R. 40. He also had neck pain making it hard to move his head left or right or up or down. This pain emerged after the second surgery. He still had weakness in his right arm and numbness in his fingers, specifically his thumb and index finger, which prevented him from grabbing and holding things, which he needed to do on his welding job. When asked if anything made the pain worse, he stated that the pain “stays about consistent, ” which he rated as 5 to 5 and 1/2 on a 10-point scale. The pain woke him up at night and he was only able to sleep three or four hours. He was seeing a pain specialist, Dr. Vo, who gave him several injections. Plaintiff was taking Norco three times a day, as well as Lyrica, Cymbalta (antidepressant), and Ambien (sleep medication). The ALJ asked plaintiff about his hands and arms, and he stated that he could lift his arms straight overhead but not in a jumping-jack motion. He had no restrictions on the use of his left arm. He had trouble walking and could only walk a block-and-half without too much trouble. He stated that he could sit comfortably for about 30 to 45 minutes at a time and then would experience pain down his right leg and in the back of his neck.

         After plaintiff testified, a medical expert, Dr. Sai Nimmagadda, and a vocational expert (“VE”), Thomas Dunleavy, testified. Relevant portions of their testimony are discussed below.

         On April 3, 2015, the ALJ found that plaintiff had the following severe impairments: “degenerative disc disease of the cervical spine status post laminoplasty, foraminotomy, and discectomy with fusion, right upper extremity radiculopathy, cervical spine myelopathy, and cervical spine myloemalacia, and degenerative disc disease of the lumbar spine.” R. 15. The ALJ found that plaintiff did not meet any listing and that he had the residual functional capacity (“RFC”) to work several jobs. The ALJ's rationales are discussed below.


         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).

         Plaintiff's opening brief is 23 pages, and contains six major arguments. As is often the case, the major arguments contain branching sub-arguments, making the total number greater than six. Also, somewhat confusingly, several arguments re-surface in multiple sections. The net effect is that plaintiff's arguments are interconnected and not always easy to discuss in isolation. After reviewing the briefs, the Court finds that the following arguments justify a remand.

         I. Neck and Finger Problems.

         Plaintiff raises two similar arguments directed at specific functional limitations included the ALJ's list of RFC limitations. The two at issue are the following: (i) plaintiff could “frequently finger/feel with the thumb and second finger of the right hand” and (ii) he could “frequently flex and laterally rotate [his] neck.” R. 16.[1] Plaintiff asserts that he cannot do these activities “frequently” but only “occasionally” or perhaps not even at all and argues that the ALJ provided only a vague explanation for his conclusion and improperly “played doctor.” Plaintiff also complains that the ALJ's reasoning is further obscured by numerous INAUDIBLE markings in the hearing transcript.

         The Court begins with the finger problems. To briefly summarize, plaintiff complained about right finger problems when he first visited a doctor sometime around November 2013. R. 267. At the hearing, he testified that he was still suffering from these problems. Dr. Nimmagadda, testified as follows about plaintiff's finger and thumb numbness:

Q Okay, because there [are] some physical findings of numbness with the thumb and the finger, is there support for that in the record?
A I, I - my private feeling is that the involvement of (INAUDIBLE) a finding, but I couldn't find any support for that.
Q So, there's nothing in the diagnostic tests (INAUDIBLE) to support that?
A Correct, so mainly the C5 C6 is up there off the upper part of the arm.

R. 57-58. Then a few pages later in the transcript, he gave what appears to be a second answer, testifying as follows:

A [R]egarding manipulative limitations, reaching in all directions, [plaintiff] would be limited to occasionally.
Q With both his shoulders or just one?
A Just, just the right.
Q So, occasionally reach all directions, with the right upper ...

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