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Cashmer v. Berryhill

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

June 19, 2017

DUSTIN S. CASHMER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM OPINION AND ORDER

          SUSAN E. COX U.S. MAGISTRATE JUDGE.

         Plaintiff Dustin S. Cashmer (“Plaintiff”) appeals the decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his disability insurance benefits under Title II of the Social Security Act. For the reasons discussed more fully below, the Court remands this matter for further proceedings consistent with this Memorandum Opinion and Order. Plaintiff's Motion for Summary Judgment [dkt. 16] is granted as stated herein. The Commissioner's Motion for Summary Judgment [dkt. 24] is denied.

         I. Background

         a. Procedural History

         Plaintiff filed an application for disability insurance benefits on June 20, 2012, with an alleged onset date of disability as of December 8, 2003. [Record (“R”) 183.] Plaintiff subsequently amended his onset date to June 6, 2012, the protective filing date. [R 14.]

         Plaintiff's disability insurance benefits application was denied initially on December 28, 2012, and again at the reconsideration stage on May 15, 2013. [R 118-20.]

         Plaintiff timely requested an administrative hearing, which was held on April 22, 2014 before Administrative Law Judge (“ALJ”) Lee Lewin. [R 8, 122.] Plaintiff's administrative hearing was a video hearing where Plaintiff appeared in Peru, Illinois, and the ALJ presided over the hearing from Orland Park, Illinois. [R 93.] Plaintiff was represented by counsel, and both a Vocational Expert and a Medical Expert testified during the hearing. [R 8-69.]

         b. Claimant's Background

         Prior to the amended onset date (June 6, 2012), Plaintiff underwent a right minimally invasive transforaminal lumbar interbody fusion at ¶ 5-S1 on May 2, 2011 with treating neurosurgeon Dr. George DePhillips. [R 96.] Plaintiff initially reported to his pain management doctor, Dr. Udit Patel, a 50% improvement in his symptoms, and that he had residual pain in the left leg in the months following the May 2011 surgery. [Id.] In January of 2012, the Plaintiff reported that his leg symptoms were tolerable, but his back pain was much worse, and an MRI revealed disc protrusion and bulging at ¶ 4-5 with bilateral foraminal stenosis. [R 97.] Plaintiff received trigger point injections in February 2012. [Id.] On March 6, 2012, Dr. DePhillips allowed Plaintiff to return to work three days a week at a sedentary physical demand level. [Id.] In April of 2012, Dr. DePhillips noted that the source of the Plaintiff's continuing pain was most likely a result of a failed fusion at ¶ 5-S1. [Id.] On June 5, 2012, Dr. DePhillips noted that a review of a CT scan of the Plaintiff's lumbar spine was consistent with pseudoarthrosis. [Id.] Dr. DePhillips recommended that Plaintiff undergo an anterior lumbar interbody fusion procedure at ¶ 5-S1. [Id.] On October 22, 2012, Plaintiff underwent the procedure, and subsequent x-rays of the lumbar spine revealed satisfactory postoperative changes at ¶ 5-S1. [Id.]

         On December 31, 2012, Plaintiff returned to Dr. Patel with complaints of low back and right lower extremity pain. [Id.] Physical examination revealed pain over the bilateral lumbar paraspinal muscles and spasm of the left and right lumbar paraspinal muscles, but no masses, normal sensory exam, and negative straight leg raising. [Id.] The Plaintiff reported some relief of abdominal and lower extremity pain with Neurontin. [Id.]

         On February 26, 2013, Dr. DePhillips detailed his plan to “most likely release [Plaintiff] to return to work with restrictions at a light physical demand level” in 4 weeks, but also notes that Plaintiff would not be able to function at greater than a light physical demand level for work until there was complete bridging of the trabecular bone union at ¶ 5-S1. [R 400.] Thus, Dr. DePhillips kept Plaintiff off work until his next appointment in 4 weeks. [Id.] The ALJ also highlights that Dr. DePhillips's February 26, 2013 treatment note states Plaintiff was being weaned off the use of narcotic pain medications. [R 97.] On March 20, 2013, at Plaintiff's 4-week follow-up appointment with Dr. DePhillips, the doctor's plan was not implemented. [R 397.] The ALJ details the March 20, 2013 treatment note as one where “it was noted that [Plaintiff's] back pain had improved considerably since his surgery” and where Dr. DePhillips noted that since Plaintiff had been released from physical therapy, Plaintiff had met maximum medical improvement from a surgical standpoint.[2] [R 97.] Dr. DePhillips then opined that Plaintiff was permanently and totally disabled and not capable of meaningful work or gainful employment. [Id.; R 397.]

         On March 18, 2013, Plaintiff requested a discharge from physical therapy and reported “feeling very well.” [R 408-09.] On April 2, 2013, Plaintiff underwent a right piriformis injection. [R 98.] On June 18, 2013, Plaintiff reported not wanting to proceed with further surgical intervention, and that he was dealing with his pain through medications. [Id.] On October 7, 2013, Dr. Patel noted that the Plaintiff's functional limitations included bending over, twisting, and walking one block. [Id.]

         During the application process for disability insurance benefits, Plaintiff claimed the following impairments: lumbar radiculopathy, back injury, and sciatica. [R 110.]

         c. The ALJ's Decision

         On June 13, 2014, the ALJ issued a written decision denying Plaintiff disability benefits. [R 90-104.] At step one, the ALJ determined that Plaintiff did not engage in substantial gainful activity since his amended alleged onset date of June 6, 2012. [R 95.] At step two, the ALJ found that Plaintiff had the severe impairments of lumbar spine impairment with radiculopathy and status post fusion surgeries of the lumbar spine. [Id.] At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments of 20 C.F.R. Part 404, Subpart P, App'x 1. [Id.] The ALJ made this step ...


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