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Gray v. Berryhill

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

July 26, 2017

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


          Sidney I. Schenkier United States Magistrate Judge.

         Plaintiff Sabrina Gray applied for Social Security benefits on February 8, 2013, alleging she became disabled on November 7, 2012 (R. 206-15); her date last insured was December 31, 2016 (R. 14). Ms. Gray's application was denied initially and on reconsideration. After a hearing before an Administrative Law Judge ("ALJ"), the ALJ issued a written opinion denying Ms. Gray's claim for benefits (R. 14-23). The Appeals Council denied Ms. Gray's request for review of the ALJ's decision, rendering it the final decision of the Commissioner (R. 1). Ms. Gray has filed a motion to reverse and remand the ALJ's decision (doc. # 15), and the Commissioner has filed a cross-motion asking the Court to affirm the decision (doc. # 20). For the following reasons, we grant Ms. Gray's motion to remand and deny the Commissioner's motion to affirm.


         After working as a bus driver for the CTA for about 12 years, Ms. Gray stopped working on November 7, 2012, when she underwent arthroscopic surgery for a torn meniscus in her right knee (R. 36, 382, 267-69). Post-surgery, Ms. Gray participated in physical therapy (R. 407). In follow-up visits, her surgeon, James Schiappa, M.D., S.C., noted that Ms. Gray's range of motion and strength in her knee was improving (R. 331-38). However, in February 2013, Ms. Gray reported pain in her right knee and received another MRI, which showed moderate knee joint effusion (excess fluid on the knee), some degeneration of the knee, softening and instability of the patella (kneecap), as well as injury and instability in the medial femoral condyle (the rounded end of the thigh bone) (R. 497-98). That month, Ms. Gray also had imaging of her right hip, which showed mild narrowing and degenerative changes (R. 500), as well as an MRI of her left knee, which showed mild degenerative changes (R. 501). Nevertheless, on March 12, 2013, Dr. Schiappa wrote a note stating "return to duty 3-18-13" (R. 494).

         On July 9, 2013, non-examining state agency physician, L.A. Woodard D.O., opined that Ms. Gray had the residual functional capacity ("RFC") to perform light work, sit for up to six hours a day, and stand and/or walk for up to six hours a day, with unlimited ability to lift, carry and stoop and the ability to frequently climb ramps/stairs, balance and crouch (R. 81-83). Dr. Woodard opined that Ms. Gray could work as a copy clerk, which she had done from 1995 to 2000 (R. 84-85). Dr. Woodard noted that his opinion conflicted with the June 25, 2013 opinion of the consultative examiner, Matthew Khumalo, who recommended a sedentary RFC for Ms. Gray after observing that she limped and walked with an antalgic gait, was unsteady walking heel to toe, was unable to hop or squat on her right leg, and had pain in her right shoulder and knee (R. 79).[3] Dr. Woodard's opinion was affirmed on reconsideration in December 2013 (R. 97-104).

         In July 2013, Ms. Gray sought medical treatment for continued pain in her right knee, as well as right wrist and low back pain (R. 440-42). The physician's assistant she saw, Jessica Kappes, recommended that Ms. Gray treat her symptoms with RICE (Rest, Ice, Compression and Elevation) in addition to taking pain medication, including hydrocodone (Vicodin) and gabapentin (Neurontin) (R. 443-45). Ms. Gray continued to complain of pain in August 2013, and at that visit, Ms. Kappes noted that Ms. Gray had developed diabetes (R. 474, 478). On November 22, 2013, returning to the same clinic, Ms. Gray reported daily, constant pain in her right knee which was not alleviated with Vicodin (R. 484). Ms. Kappes observed swelling, effusion, decreased range of motion, and diffuse tenderness in Ms. Gray's right knee (R. 484-87). Ms. Kappes prescribed Percocet (oxycodone-acetaminophen) instead of Vicodin, continued Ms. Gray's prescription for gabapentin, and recommended that Ms. Gray walk with a cane to alleviate her pain (R. 487-88). Ms. Kappes recommended an MRI of Ms. Gray's right knee, but Ms, Gray could not afford one at that time (R. 488).

         On May 2, 2014, Ms. Gray visited her family medicine physician, Dr. Migdonia Delossantos, due to recurrent, severe right knee pain and to check up on her Type 2 diabetes (R. 531). Dr. M. Delossantos observed that Ms. Gray's right knee was tender, with restricted range of motion and minimal swelling (Id.). Ms. Gray returned to the doctor on July 8, 2014 because she was feeling sick; Dr. M. Delossantos noted that Ms. Gray had swelling and tenderness in her right knee, and she was taking Tramadol (a narcotic) for pain (R. 532). Dr. M. Delossantos's notes from Ms. Gray's visits in August and September 2014 did not mention knee problems (R. 534-36), but in October 2014, Ms. Gray again complained of knee pain, and Dr. M. Delossantos observed swelling and tenderness in her right knee and hand and reduced range of motion in those areas (R. 539, 542-43). That month, Dr. M. Delossantos filled out a physical capacities evaluation, in which she opined that Ms. Gray could sit for five hours during an eight-hour day and stand or walk for a total of 30 minutes a day, and could only occasionally lift up to five pounds (R. 517-18). Dr. M. Delossantos also opined that Ms. Gray could not grasp, push or pull or do fine manipulation with her right hand (R. 517).

         Also in October 2014, Ms. Gray visited doctor of podiatric medicine, Gregg Delossantos, D.P.M. (R. 551). At the visit, Ms. Gray complained of numbness in her feet, and Dr. G. Delossantos observed that she had decreased sensation on both feet, but the strength and range of motion in her feet was normal (Id.). On November 25, 2014, Dr. G. Delossantos diagnosed Ms. Gray with diabetic peripheral neuropathy (R. 549). He wrote that Ms. Gray's gait was guarded to altered, she needed a cane for balance and she could not walk or stand more than two hours in an eight-hour workday (R. 548-49). Dr. G. Delossantos further noted that Ms. Gray had moderate pain and decreased sensation in her feet (R. 550).

         On January 12, 2015, Ms. Gray arrived at her hearing before the ALJ using a cane. She testified that she had used a cane for more than a year on the infrequent occasions when she left home because her right leg would lock up and/or go numb after 30 minutes of standing (R. 41, 44). She mostly sat around all day, but after about 30 or 40 minutes of sitting she needed to stand; she only drives short distances (R. 44, 46-47). Ms. Gray testified that she had not had knee replacement surgery because did not have insurance (R. 42).

         The vocational expert ("VE") testified that Ms. Gray's previous work was defined as that of an office helper and a bus driver (R. 52). In response to the ALJ's hypothetical question, the VE testified that an individual would be able to work as an office helper if she could perform light work with unlimited sitting, standing and walking so long as she could switch positions for five minutes every 60 minutes (R. 52-54). If the individual had to use a cane in their dominant hand to stand or walk, the VE stated that there would be additional limitations (R. 60).


         On April 21, 2015, the ALJ issued a written opinion finding plaintiff not disabled through the date of the decision (R. 14). At Step 1, the ALJ found that Ms. Gray had not engaged in substantial gainful activity since November 7, 2012, the alleged onset date of the disability (R. 16). At Step 2, the ALJ found that Ms. Gray had the severe impairments of degenerative disease of the right knee and diabetes mellitus, but she did not have a severe mental impairment (R. 16-17). At Step 3, the ALJ did not find that Ms. Gray's impairments met or medically equaled the severity of a listed impairment (R. 17).

         The ALJ found that Ms. Gray had an RFC to perform light work, with no limitations on the total amount of time she is able to sit, stand or walk throughout an eight-hour workday so long as she could alternate her position between sitting, standing, and walking for up to five minutes every hour while still on task (R. 17). In addition, Ms. Gray could frequently balance; occasionally climb ramps and stairs, stoop, kneel, crouch and crawl; and never climb ropes, ladders or scaffolds (Id.).

         The ALJ reviewed Ms. Gray's allegations of extensive pain and functional limitations as well as the opinions of Drs. M. and G. Delossantos assessing Ms. Gray with severe functional limitations, but the ALJ stated that Ms. Gray's allegations and these physician opinions were inconsistent with the medical record and thus not fully credible. The ALJ stated that the medical record showed "minimal swelling and only some tenderness of the right knee" and "consistently . . . full range of motion of the right knee, " while it did "not show[] extreme complains of pain or even functional limitations" or "complaints of ongoing pain of the right knee" (R. 19-21). Furthermore, the ALJ found that Dr. Schiappa's reports showed that "surgery was generally successful in relieving [Ms. Gray's] symptoms, " she had "recovered ...

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