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Fratantion v. Berryhill

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

July 25, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.


          Michael T. Mason, United States Magistrate Judge

         Claimant Maria Fratantion (“Claimant”) brings this motion to reverse the final decision of the Commissioner of Social Security (“Commissioner”), denying Claimant's claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under 42 U.S.C. §§ 416(i) and 423(d) of the Social Security Act (“the Act”). The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). This Court has jurisdiction to hear this matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that follow, Claimant's motion for summary judgment is granted [30], and the matter is remanded for further proceedings.



         This is the second time Claimant's application for benefits has come before the District Court. Claimant originally applied for benefits on September 3, 2009, alleging disability since April 1, 2007 due to back pain with leg pain and numbness. (R. 142, 177.) Her claim was denied initially on December 1, 2009, and upon reconsideration on April 13, 2010. (R. 15, 81-82.) On May 10, 2010, Claimant requested a hearing before an administrative law judge (“ALJ”). (R. 96.) An administrative hearing was held on November 17, 2010. (R. 33-79.) Claimant, who was represented by counsel, appeared and testified. (Id.) A vocational expert (“VE”) also appeared and testified. (Id.) On January 6, 2011, the ALJ issued a written decision denying Claimant's application for DIB and SSI benefits. (R. 15-29.) The Appeals Counsel denied review on November 27, 2012, leaving the ALJ's decision as the final decision of the Commissioner. (R. 1-6); Estok v. Apfel, 152 F.3d 636, 637 (7th Cir. 1998); 20 C.F.R. § 416.1481. On August 5, 2014, the U.S. District Court for the Northern District of Illinois granted Claimant's motion for summary judgment and remanded the action for further proceedings. (R. 551-97.)

         A new ALJ conducted a second hearing on March 26, 2015. (R. 506.) On July 8, 2015, the ALJ denied Claimant's claim, again finding that she was not disabled as defined by the Act during the relevant period of April 1, 2007 through March 31, 2010. (R. 483-504.) Plaintiff appealed that decision to the Appeals Council, which granted a review of her claim. (R. 460-66.) After a review of the record, the Appeals Council concluded that the ALJ's decision complied with the District Court's order and was supported by substantial evidence, and thus affirmed the ALJ's denial of Claimant's claim on December 14, 2015. (R. 460-464.) The ALJ's opinion became the final decision of the Commissioner. 20 C.F.R. § 416.1481; Estok, 152 F.3d at 637. Claimant subsequently filed this action in the District Court.


         A. Treatment Records

         The medical record begins on October 16, 2008, when Claimant presented to the emergency room at Edward Hospital with pain in her left hip, which radiated from her lower back down her left leg, and started four days prior. (R. 285.) There was no numbness or weakness in the leg. (Id.) Claimant reported that she had problems with her left leg over the course of the years, but had only been diagnosed with bursitis and undergone steroid injections. (Id.) The examining physician noted paraspinal tenderness and a positive straight leg test at 30 degrees on the left side, negative on the right side. (Id.) While X-rays showed no obvious fractures or degenerative changes in her hip, they revealed significant degenerative changes in her lower back. (Id.) After being treated with pain medication, Claimant was comfortable and was discharged to home. (R. 286.)

         On November 5, 2008, Claimant met with Dr. Michael Rabin, a neurosurgeon, about her back pain. (R. 333.) Dr. Rabin documented that Claimant began having lower back pain that radiated down her left leg three-to-four years ago. (Id.) After an examination and a review of her recent MRI scans, Dr. Rabin concluded that she had mild to moderate spinal stenosis and would likely benefit from a decompressive lumbar laminectomy, a surgery to reduce pressure on the spinal nerve roots. (Id.) Dr. Rabin performed the lumbar laminectomy on November 25, 2008. (R. 287.) The findings from the procedure were a tighter stenosis than originally anticipated and thickened ligament at ¶ 4-5. (R. 287.) During a rehab medicine consultation, Claimant was found to have impaired mobility and self-care impairments that were recommended to be treated at an acute rehab setting for intensive therapies. (R. 290.) According to the physician, the acute rehab treatment could last up to a week and a half, although Claimant expressed her preference to go home. (R. 291.) She was discharged in stable condition on November 30, 2008. (R. 306.)

         Claimant later developed a deep post-operative infection and, on December 7, 2008, was readmitted to Edward Hospital with a high fever and pain and discharge at the wound site. (R. 292, 295-97, 309.) On December 10, 2008, surgeons re-opened her surgical wound and found gross infection with necrotic debris above the fascial layer. (R. 304.) The infection was treated and a drain was installed. (Id.) The drain was later removed, and she was discharged from the hospital on December 16, 2008. (R. 309.)

         Claimant was referred to Dr. Yousuf Sayeed at DuPage Valley Pain Specialists. (R. 336-37.) On December 31, 2008, Claimant complained of lower back pain, primarily at the incision site, as well as numbness down both legs. (R. 336.) However, Dr. Sayeed noted that her worst symptoms were in the low-back region, which was not in pain prior to surgery. (R. 336-37.) They discussed pain medication options. (Id.)

         Claimant had follow-up appointments with Dr. Rabin in early 2009. (R. 322-331.) He documented on January 30, 2009, that she was doing remarkably well. (R. 327.) At a wound care follow-up appointment on February 3, 2009, Claimant still had some drainage and chronic discomfort at the surgical site, but her infection appeared to be resolved. (R. 307.) The surgical site was considered “completely healed” at her next appointment two weeks later. (R. 310.)

         On February 27, 2009, Dr. Rabin recommended physical therapy to help with Claimant's leg and lower back pain, which he suspected to be secondary to the irritation from the infection that was still resolving. (R. 324.) An April 14, 2009, MRI revealed no evidence of scoliosis or spondylolisthesis. (R. 334.) On April 17, 2007, Dr. Rabin documented that Claimant was making progress, had improvement in her lower back pain, and was being weaned gradually from OxyContin. (R. 323.)

         Claimant received ongoing pain management care with medications from Dr. John Mikuzis at Action Physical Medicine and Rehabilitation[2], regularly from May through October 2009. (R. 360-80.) At the initial appointment, Claimant's chief complaint was chronic pain that worsened with movement, activity, bending, coughing, and weather. (R. 377.) The treatment notes regularly documented trouble walking, muscle weakness, joint pain, and fatigue. (R. 360, 362, 364, 366, 368, 370, 373, 375.) Claimant's pain ranged from a five-to-ten out of ten, but was usually an eight out of ten. (Id.) In June 2009 Claimant slipped at the grocery store and experienced an acute worsening of her pain. (R. 440.)

         From July through September 2009, Claimant also completed a course of physical therapy. (R. 383-385.) At her initial physical therapy evaluation on July 23, 2009, Claimant reported that she was improving until her fall in June 2009, which brought her “back to square one.” (R. 384.) According to Claimant, the pain was constant, the intensity varied, and she was only able to do household chores with the help of medications. (Id.) The physical therapy resulted in some improvements in flexibility, trunk stabilization, and range of motion but no overall improvement in her pain symptoms. (R. 383.)

         In September 2009, Claimant complained of discomfort and achiness in her lower back and legs, but indicated that her medications were controlling her pain. (R. 362, 364.) She still had some trouble walking. (R. 362.) In October 2009, Dr. Mikuzis noted that, though Claimant's pain medications helped, she complained of worsening pain and had some difficulty walking. (R. 360.) She found some relief from heat and from sitting in a recliner. (Id.)

         On December 17, 2009, Claimant again reported to the emergency room at Edward Hospital and was hospitalized with intractable low back pain that was made worse by coughing. (R. 438.) She also had pain in both hips, primarily the left, which radiated to her legs and caused numbness in her calves and feet. (Id.) An MRI did not show any evidence of recurrent infection or lumbar disc disease. (R. 445.) Dr. Rabin examined her and requested a consultation from orthopedic specialist, Dr. David Mochel, to rule out any independent hip issue. (R. 440-442.) Dr. Mochel opined that Claimant's hip pain was likely from her lumbar spine. (R. 442.) She was given a fentanyl patch for additional pain control and was discharged from the hospital on December 23, 2009. (R. 445.)

         On January 26, 2010, Claimant went to see Dr. Michael Shaefer, regarding the pain in her lower back that radiated down her legs. (R. 400.) Dr. Shaefer noted that she was on a number of medications that did not relieve her pain. (Id.) He ordered an updated MRI with contrast. (R. 400, 404-05.) After reviewing the MRI films, on March 3, 2010, Dr. Schafer told her that her primary problem was instability at ¶ 4 and L5 and that she was a candidate for spinal fusion surgery. (R. 398.) He cautioned, however, that she was at high risk of infection from surgery since she had already suffered one post-operative infection. (R. 398-99.) Before he would consider surgery, Dr. Schafer stated that Claimant would need to stop smoking for at least two months and then be seen by the high risk team. (Id.)

         In February, March, and April 2010, Claimant visited the Pain Centers of Chicago in Joliet, Illinois for medications to manage the pain in her lower back and both feet. (R. 411, 413, 415.) During her March and April visits, her pain score was a ten out of ten, with a recent “best” pain score of five or six. (R. 411, 413.) She was walking without assistance. (Id.) A Duragestic patch helped to control her pain better. (R. 411.)

         On November 16, 2010, Claimant went to visit her primary care physician Dr. Robert D. Rozner and requested a letter for her disability claim. (R. 456.) Though the notes reveal no musculoskeletal exam that day, Dr. Rozner did note that Claimant was “Doing HORRIBLY” with “unrelenting” pain in her back and now in her hands, and some numbness in her heels. (R. 456-57.) Claimant reported that she could not lift half a gallon of milk, needed to use a cane to move around the house, and could do light activities for no more than twenty minutes at a time. (R. 456.)

         The file contains no records from 2011. Treatment records resume in November 2012, after the close of the period relevant for this claim. The records indicate that Claimant received pain management care, including prescriptions, from the Pain Centers of Chicago approximately monthly up through the time of her March 2015 hearing. (R. 789-846.) In August 2014 and again in December 2014 she expressed hope that a new orthopedic surgeon, Dr. Cary Templin, could treat her pain with a surgical procedure less “invasive” than spinal fusion. (R. 805, 815.) She ...

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