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Kern v. Berryhill

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

April 11, 2017

CAROLYN J. KERN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.



         This action was brought under 42 U.S.C. § 405(g) to review the final decision of the Commissioner of Social Security denying a claim of Carolyn J. Kern (“Plaintiff”) for Disability Insurance Benefits. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow, Plaintiff's motion for summary judgment is granted in part, and the Commissioner's cross-motion for summary judgment [Doc. No. 31] is denied.



         On June 14, 2010, Plaintiff applied for Disability Insurance Benefits, alleging that she had been disabled since April 11, 2006 due to a back injury, difficulty breathing, chronic obstructive pulmonary disease (“COPD”) and hepatitis C. Her claim was denied initially and upon reconsideration, after which she timely requested a hearing before an Administrative Law Judge (“ALJ”), which was held on June 26, 2012. Plaintiff personally appeared and testified at the hearing and was represented by counsel. (R. 41.) Vocational expert Kari A. Seaver (the “VE”) and Plaintiff's friend Sammy Clanton also testified. (R. 41, 152.)

         On July 5, 2012, the ALJ denied Plaintiff's claims for Disability Insurance Benefits, finding her not disabled under the Social Security Act. (R. 28-36.) The Social Security Administration Appeals Council then denied Plaintiff's request for review (R. 1), leaving the ALJ's decision as the final decision of the Commissioner and, therefore, reviewable by the District Court under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).


         A. Medical

         Plaintiff injured her back on February 17, 2005 while performing her job as delivery-truck driver. (R. 253, 332-33.) After pain relievers and a steroid patch failed to provide relief, she was referred to orthopedic surgeon Kevin M. Koutsky, M.D., who first examined her on March 9, 2005. (R. 332-33.) She reported lower back pain extending to her right leg, as well as numbness and tingling. (R. 332.) A physical exam revealed decreased pinprick sensation in her right foot, a positive right-side straight leg test, muscle tenderness and spasm, and limited lumbar range of motion. (Id.) X-rays showed degenerative disc disease and facet arthrosis. (R. 333.) Dr. Koutsky referred Plaintiff for an MRI and recommended physical therapy for lumbar range of motion, strengthening, and stabilization. He also prescribed anti-inflammatories, muscle relaxers, and pain relievers. (R. 333.)

         MRI findings included spondylosis, degenerative disc disease with disc extrusion, and mild to moderate spinal stenosis, all at the L3 to L5 levels of the spine. (R. 336.) Plaintiff began a course of physical therapy and continued to follow up monthly with Dr. Koutsky through the rest of 2005. (R. 336-46.) She saw “a fair amount of improvement” with physical therapy. (R. 336.) Nevertheless, she continued to have chronic disabling back pain, even after enduring three epidural steroid injections. (R. 342.) After discussing the possibility of surgery, Dr. Koutsky referred Plaintiff to neurosurgeon Kenneth Heiferman, M.D. for further evaluation, and Dr. Heiferman agreed that surgery was appropriate. (Id.)

         Pre-operative evaluation revealed that Plaintiff had Hepatitis C, which she thought she may have contracted from a blood transfusion in 1989. (R. 407.) Plaintiff's back surgery occurred January 31, 2006. Dr. Koutsky and Dr. Heiferman jointly performed her procedures, consisting of bilateral laminectomy of three vertebrae, removal of two discs, and lumbar spinal fusion with cages, screws, and rods. (R. 384.) She remained in the hospital until February 5, 2006.

         Plaintiff saw Dr. Koutsky approximately monthly through May 2007. (R. 427-54.) Follow-up X-rays taken on February 16, 2006 showed that her instrumentation was in good position with good spine alignment at ¶ 3-L5, and by March 16, 2006, her bone graft appeared to be consolidating. (R. 427-28.) She wore a back brace through April 2006, after which Dr. Koutsky prescribed physical therapy. (R. 429.) Through May and June, she made progress with physical therapy. (R. 430, 433.) Additional X-rays taken in July 2006, six months following her surgery, showed evidence of solid fusion with instrumentation in good position. (R. 435.) Dr. Koutsky noted that Plaintiff was still off work and prescribed continued physical therapy. (Id.) He continued to monitor her progress until, more than thirteen months after her surgery, Dr. Koutsky scheduled her work hardening/conditioning program, to be followed by a Functional Capacity Evaluation (“FCE.”) (R. 438-446.)

         From March to May 2007, Plaintiff completed a work conditioning program under the direction of Michael Rose, a certified athletic trainer and functional assessment specialist. (R. 473-510.) Though she attended all sessions, followed instructions, used proper lifting technique, and was compliant with the program, she experienced increased low back pain from the overall work load. (R. 494-95.) On May 21, 2007, Plaintiff's last day in the program, Mr. Rose administered an FCE which provided a detailed assessment of her physical work capabilities. (R. 473-83.) Mr. Rose indicated Plaintiff could perform work that required a light to medium level of lifting, but she had pain lifting from floor level. (R. 473, 484.) Mr. Rose also opined that, during a workday, Plaintiff could tolerate up to four to five hours of sitting, at sixty-minute durations; three to four hours of standing, at thirty-minute durations; and “occasional” walking of “moderate distances” adding up to no more than three to four hours per day. (R. 474.) Tests of her sitting and standing tolerances, during which the examiner observed her as she performed other activities in a seated or standing position, supported those opinions: Plaintiff shifted her weight frequently and reported low back pain during both the sitting and standing activities. (R. 482.) After thirty-one minutes of standing, she “went to the floor” and said her back was killing her, explaining that it hurt to stand in one spot and she “needed to be moving around.” (R. 482.) Based on other tests, Mr. Rose also opined that Plaintiff could only occasionally bend, stoop, or crouch. (R. 474.) Objective tests of Plaintiff's effort throughout the exam, such as heart rate achieved and consistency of results, led Mr. Rose to conclude that Plaintiff had exerted a maximum safe level of effort and that her test results were valid. (Id.)

         At Plaintiff's next appointment with her orthopedic surgeon on May 23, 2007, Dr. Koutsky released her to work with the restrictions outlined on the FCE. She was taking medications on an as-needed basis and planned to continue doing her range of motion and strengthening exercises at home. (R. 447.) She returned to Dr. Koutsky for follow-up every three months through July 31, 2008, continuing to do her exercises at home and take medications on an as-needed basis. (R. 454.)

         Plaintiff returned to Dr. Koutsky in September 2009 and again in March 2011 reporting additional lower back pain, which Dr. Koutsky characterized as “chronic.” (R. 455-56.) She continued her home exercises and medication as needed. (Id.) On March 2011, Dr. Koutsky completed a questionnaire in which he indicated that Plaintiff had lower back pain status post spinal fusion, characterized by range of motion limitations and muscle spasms. (R. 511.) He reported that Plaintiff experienced dizziness and drowsiness form medication. (R. 512.) He opined that Plaintiff could walk two blocks before resting or experiencing severe pain, that she could sit for fifteen minutes before needing to get up, and that she could stand for fifteen minutes before needing to sit down or walk around. (R. 512.) She could sit for about two hours and stand or walk for about two hours, total, in a workday. (Id.) She needed a job that permitted shifting positions at will and will occasionally need to take unscheduled breaks. (Id.) Dr. Koutsky opined that Plaintiff could never lift fifty pounds and could only rarely lift twenty pounds in a work setting, but she could occasionally lift ten pounds and frequently lift less than ten pounds. She could never twist, stoop, crouch, squat, climb ladders, or climb stairs. He opined that her pain would occasionally interfere with her attention and concentration at work, and she was likely to be absent from work more than four days per month as a result of her impairments or treatment. (R. 511, 513.)

         On August 26, 2010, Dr. Timothy Brandt completed a medical evaluation of Plaintiff. Among the diagnoses he listed were sciatica status post lumbar laminectomy, depression, and COPD. (R. 400.) He noted that Plaintiff had lower back pain as well as dyspnea (shortness of breath) on exertion. (R. 402.) He opined that, while Plaintiff had full capacity for sitting and for performing her activities of daily living, her capacity for standing was reduced up to 20%; and her capacity for walking, climbing, pushing, pulling were reduced 20-50%; and her capacity to bend or stoop was reduced more than 50%. (R. 403.) He opined that she could lift no more than ten pounds at a time ...

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