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Kaplarevic v. Berryhill

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

March 7, 2017

DRAGAN KAPLAREVIC, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM OPINION AND ORDER [2]

          SIDNEY I. SCHENKIER, UNITED STATES MAGISTRATE JUDGE

         In this Social Security appeal, plaintiff, Dragan Kaplarevic, has filed a motion seeking reversal and remand of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability benefits (doc. # 9). The Commissioner has filed a cross-motion asking the Court to affirm the decision (doc. # 18). For the reasons set forth below, we grant Mr, Kaplarevic's motion to remand and deny the Commissioner's motion to affirm.

         I.

         On December 14, 2012, Mr. Kaplarevic filed his application for benefits, alleging an onset date of August 1, 2012. His date last insured was December 31, 2014 (R. 13). The claim was denied initially and on reconsideration. Mr. Kaplarevic requested and received a hearing before an Administrative Law Judge ("ALJ"), and on August 13, 2014, the ALJ issued a written opinion denying him benefits (R. 11-21). The Appeals Council upheld the ALJ's determination, making it the final opinion of the Commissioner (R. 1-5). See 20 C.F.R. § 404.981; Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012).

         II.

         Mr. Kaplarevic presents only two grounds for remand: (1) that the ALJ improperly gave "too little weight to Mr. Kaplarevic's medical records at Union Health Services, " which showed that Mr. Kaplarevic had degenerative disc disease and back pain with related functional limitations; and (2) that the ALJ erred in ignoring the hearing testimony of the vocational expert ("VE") that Mr. Kaplarevic would not be able to work if he was off task 30 percent of the time, because his back pain would keep him off task at least that often (doc. # 9: PL's Mot. at 3-4). Because Mr. Kaplarevic contests only the ALJ's determination with regard to his back impairment, we limit our review to the facts related to that issue.

         Mr. Kaplarevic received medical treatment primarily from physicians at Union Health Services ("Union"). At his March 14, 2013 physical, Mr. Kaplarevic complained of left sciatica pain, pain when standing up or sitting down, tenderness in the lower lumbar area and back pain (R. 521-22). His straight leg raise test was positive bilaterally, [3] and the doctor diagnosed him with "low back syndrome" (R. 522-23).[4] In this and most other doctors' reports in the record, Mr. Kaplarevic was described as obese and weight loss was recommended (R. 523).

         On March 26, 2013, Debbie Weiss, M.D., performed an internal medicine consultative examination on Mr. Kaplarevic for the Bureau of Disability Determination Services ("DDS"). Mr. Kaplarevic told Dr. Weiss that he had pain radiating from his low back to his right foot which reached a level of 10 out of 10 and made it difficult for him to sit or stand for more than 10 to 15 minutes or do household chores that involved bending (R. 484). Massage therapy and hydrocodone helped alleviate his pain (Id.). Dr. Weiss observed that Mr. Kaplarevic had decreased range of motion of the lumbosacral spine and positive straight leg raising bilaterally due to pain, but no limitation in the range of motion of any upper or lower extremity (R. 485-87). She further noted that Mr. Kaplarevic walked with a slight limp, bearing most of his weight on the right lower extremity, and he had pain and spasm in his left ankle and decreased sensation in both lower extremities to mid-shin (R. 485-86). He could not balance on one leg, but Mr. Kaplarevic had no difficulty getting on and off the examination table, heel and toe walking, and doing the tandem gait (Id.). An x-ray of Mr. Kaplarevic's lumbar spine ordered the next day by DDS revealed degenerative disc disease at ¶ 4-L5 and L5-S1 levels (R. 490).

         On May 15, 2013, Mr. Kaplarevic reported "episodic back pain, pain into his legs, [and] calf pain" to a Union physician; an examination revealed that Mr. Kaplarevic had a slow gait, moderately diminished range of motion of the lumbosacral spine in all directions and positive straight leg raising (R. 720). The physician opined that Mr. Kaplarevic had a herniated disc or lumbar spinal stenosis and significant degenerative disc disease (Id.). The doctor noted that Mr. Kaplarevic was "not a big complainer" and "has had no real treatment, " and prescribed physical therapy (Id.). Physical therapy helped alleviate Mr. Kaplarevic's back pain, but he still had back pain and tenderness and positive straight leg raising tests in July 2013 (R. 508-10). In August 2013, Mr. Kaplarevic asked for and received a referral for additional physical therapy (R. 712).

         At the hearing on June 30, 2014, Mr. Kaplarevic testified that he suffered from severe pain in his back, ankle and calf, which made it hard for him to get dressed and put his socks on (R. 37). His doctor prescribed pain medication, but he did not take it for fear of addiction (R. 37-38). Mr. Kaplarevic explained that he was sitting sideways at the hearing to take pressure off his back (R. 45). He could stand up to 15 minutes, but needed to move about to keep the pressure off his back (Id.).

         The ALJ presented a hypothetical to the VE of an individual who could perform light work, needed to alternate between sitting and standing for one to two minutes approximately every 30 minutes, could frequently balance, kneel and crouch, could frequently or occasionally climb ramps and stairs, [5] could occasionally stoop and crawl; and needed to avoid concentrated exposure to environmental and other hazards, including unprotected heights, moving machinery and night driving (R. 47-49). The VE testified that the individual could not perform Mr. Kaplarevic's past relevant work in construction or as a mechanic, but other jobs would be available (R. 48-49). However, if the individual needed to recline 80 percent of the work day, or would be off-task up to one-third of the work day, no jobs would be available (R. 49-50).

         III.

         On August 13, 2014, the ALJ issued a written opinion following the familiar five-step process for determining disability, 20 C.F.R. § 404.1520(a)(4). At Step 1, the ALJ stated that Mr. Kaplarevic has not engaged in substantial gainful activity since August 1, 2012, his alleged onset date (R. 13). At Step 2, the ALJ concluded that Mr. Kaplarevic had severe impairments which included degenerative disc disease and obesity.[6] At Step 3, the ALJ found that Mr. Kaplarevic's impairments, singly or in combination, did not meet or exceed a listed impairment, including Listings 1.02 and 1.04 for degenerative disc disease (R. 14-15). In addition, the ALJ stated that Mr. Kaplarevic's obesity did not significantly impair any of his other functions (R. 15).

         The ALJ determined that Mr. Kaplarevic retained the RFC to perform light work (R. 15). The ALJ wrote both that Mr. Kaplarevic "frequently can climb ramps and stairs, " and that he "cannot climb ladders, ropes or stairs" (Id.). In addition, the ALJ stated that Mr. Kaplarevic could frequently balance, kneel, and crouch and occasionally stoop and crawl; and should avoid concentrated exposure to extreme heat, humidity, vibration, dust fumes, odors, gases, poor ventilation, unprotected heights, dangerous moving machinery, and night driving (R, 15-16). Moreover, the ALJ found that Mr. Kaplarevic could "sit or stand for at least 30 ...


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