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Flerlage v. Berryhill

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

September 7, 2017

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


          Susan E. Cox, Magistrate Judge

         Plaintiff Bonnie Jean Flerlage (“Plaintiff”) appeals the decision of the Commissioner of Social Security (“Defendant, ” or the “Commissioner”) to deny his application for disability benefits. The parties have filed cross-motions for summary judgment. For the following reasons, Plaintiff's motion is granted [dkt. 22], the Commissioner's motion is denied [dkt. 30], and the case is remanded for further proceedings consistent with this opinion.


         I. Procedural History

         On January 7, 2013, Plaintiff filed an application for Disability Insurance Benefits (“DIB”) under Title II and Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act. Plaintiff's alleged disability onset date at the time of her application was March 31, 2011. Her initial application was denied on August 14, 2013, and again at the reconsideration stage on March 12, 2014. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) on March 27, 2014, which was held on November 10, 2014. At the hearing, Plaintiff, through her attorney, voluntarily withdrew her request for a hearing as it pertained to the DIB claims, leaving on the SSI claims for the hearing before the ALJ. At the hearing, testimony was offered from the Plaintiff and a Vocational Expert (“VE”). On January 15, 2015, the ALJ issued a written decision denying Plaintiff's application for DIB. The Appeals Council (“AC”) denied review on October 27, 2015, thereby rendering the ALJ's decision as the final decision of the agency. (R. 1-3); Herron v. Shalala, 19 F.3d 329, 332 (7th Cir. 1994).

         II. Medical Records

         Plaintiff's has had ongoing problems with her neck and back since 2005, when she was involved in a motor vehicle accident. As a result of injuries sustained in that accident, Plaintiff underwent surgery to perform an anterior cervical discectomy and fusion, including placing a titanium plate and screws in Plaintiff's neck. (R. 415, 1017). In February 2011, Plaintiff was involved in another motor vehicle accident, and reported increased neck and back pain. She began treating with Dr. Dalip Pelinkovic, M.D., at M&M Orthopedics shortly after the second accident, with complaints of headache, neck pain, bilateral trapezius pain, left interscapular pain, lower back pain, right buttock pain, right posterior leg pain, numbness in her arms and hands, and right leg pain. (R. 402.) Plaintiff treated with Dr. Pelinkovic for approximately two months; at the end of her treatment, Dr. Pelinokovic recommended that Plaintiff continue with non-operative treatment, including physical therapy.

         In August 2011, Plaintiff was involved in a physical altercation, and presented to the emergency room at Edwards Hospital. She complained of neck pain, among other issues. A CT scan of the cervical spine showed that Plaintiff had a plate and screw with graft material at ¶ 5-C6, and a disc bulge compressing the thecal sac at ¶ 3-C4. (R. at 428.) Plaintiff was diagnosed with a cervical strain and discharged from the hospital that day. (R. at 417.)

         In June 2012, Plaintiff's primary care physician, Dr. Sean Rardin, M.D., referred Plaintiff to a specialist in neurosurgery and spine surgery, Dr. Michael H. Rabin, M.D. Plaintiff reported to the specialist that her lower back pain and neck pain increased following her 2011 altercation, and that she started to have tingling associated with that pain. (R. at 431.) Dr. Rabin reviewed several MRIs of Plaintiff's spine that were taken in May 2012, and noted that she had a “large disk herniation on the left at ¶ 5-6, ” “segmental failure above the level of her fusion at ¶ 4-5 as well as disk bulging at ¶ 3-4.” (R. at 431.) The MRIs also showed that Plaintiff had a small herniated disc at ¶ 1-L2, but Dr. Rabin stated that Plaintiff's lumbar spine was “unremarkable.” (R. at 431, 434.) Dr. Rabin opined that surgery would likely not improve Plaintiff's symptoms, and recommended that she have injections in her cervical spine. (R. at 432.)

         On August 14, 2012, Plaintiff was treated by Dr. Yuan Chen, M.D., [2] for her neck and back pain, relating that she had “throbbing, shooting, stabbing, cramping, and burning” neck pain that was aggravated by prolonged sitting, standing, and walking. (R. at 459.) She described her lower back pain as “throbbing, aching in nature, ” and also reported that it was aggravated by prolonged walking and going from a seated position to standing. (R. at 459.) Dr. Chen noted that “her physical examination demonstrated significant signs for facet pain” in the neck, and recommended that Plaintiff proceed with cervical medial nerve blocks as treatment. (R. at 459.) Once that was achieved, Dr. Chen suggested that Plaintiff receive corticosteroid injections in her sacroiliac joint to relieve her lower back pain. (R. at 459.) Dr. Chen performed the cervical medial nerve blocks one week later. (R. at 462.) Dr. Chen performed the injections for Plaintiff's lower back pain on September 12, 2012. (R. at 467.)

         In October 2013, Plaintiff had MRIs of her back performed. Her cervical spine showed “posterior disc protrusion” at ¶ 3-C4, “disc bulging” at ¶ 4-C5, and “postsurgical changes of anterior fusion” at ¶ 5-C6. (R. at 608.) Over all, the MRI showed “no significant change” from the May 2012 MRI, and the degenerative changes and borderline canal stenosis at ¶ 3-C4 and C4-C5 were stable. (R. at 608.) The MRI of Plaintiff's lumbar spine showed “mild disc bulging without spinal stenosis or neural compromise at ¶ 1-L2, ” but not significant change from Plaintiff's May 2012 MRI. (R. at 610.)

         On March 10, 2014, Plaintiff met with Dr. Mohammad A. Khan, M.D., where she described her lumbar pain as 9 out of 10, with shooting pain, numbness, and tingling radiating down her right leg. (R. at 613.) She reported that walking, standing, lifting, leaning forward, sneezing, and coughing all made the pain worse. ( 613.) Plaintiff also complained of shooting neck pain, tingling, and numbness associated with her neck pain, and noted that the pain radiated down her shoulder and arm; using her arm and turning her neck made the pain worse. ( 614.) Dr. Khan noted “severe tenderness” in Plaintiff's neck and back, and diagnosed Plaintiff with chronic neck and back pain, with lumbar radiculitis, sacroiliac and facet joint arthropathy, cervical radiculitis, and cervical facet joint arthropathy. (R. at 614-616.) However, Dr. Khan noted that the MRIs had “very little findings.” (R. at 616.) Following his examination, Dr. Khan performed a facet joint injection at ¶ 3-L4, L4-L5, and L5-S1, and a bilateral sacroiliac joint injection. (R. at 617-620.)

         Plaintiff had additional MRIs on July 10, 2014. The MRI of the cervical spine showed moderate disc protrusion at ¶ 3-C4 with mild encroachment upon the ventral side of the cord, and “mild cord flattening/posterior cord displacement.” (R. at 862.) At ¶ 4-C5, the MRI showed shallow right paracentral disc protrusion, leading to mild cord impingement, and “[a]t least mild/moderate right and milder left C5 foraminal narrowing.” (R. at 863.) An MRI of the Plaintiff's lumbar spine revealed degenerative disc change at ¶ 1-L2 with shallow disc protrusion. (R. at 865.)

         Running as an undercurrent to all of this treatment are progress notes from Dr. Sean Rardin, Plaintiff's primary care physician, which show a long history of neck and back problems. For example, on March 7, 2012, Plaintiff complained of getting “‘stuck' where she cannot move her neck and torso after certain movements for up to 45 minutes.” (R. at 505.) On September 26, 2012, Plaintiff presented to Dr. Rardin with “severe cervical and thoracic/lumbar back pain . . . [that] goes down her right leg and right foot at times.” (R. at 502.) Plaintiff reported that her pain was getting worse, despite the injections with Dr. Chen, and that sitting or standing for prolonged periods worsened the pain; Dr. Rardin suggested that Plaintiff consider a leave from nursing school - which she was attending at the time - “to concentrate on her health which has worsened.” (R. at 502-03.) At the following appointment with Dr. Rardin, on January 11, 2013, Plaintiff stated that her pain and had not improved, and that she had taken a leave of absence from nursing school and was considering pursuing a claim for disability. (R. at 501.) On April 1, 2013, Dr. Rardin noted that “[Plaintiff] has tried to finish school and continue working but has found her neck and back pain to be too severe, ” and that she “visited with neurosurgery and was discouraged from continuing school and work.” (R. at 499.) On May 3, 2013, Dr. Rardin wrote that Plaintiff's back and neck pain were unchanged. (R. at 835.) In October of that year, Plaintiff claimed that she had “developed intermittent numbness in both hand[s], ” and continued to have radiation of lumbar pain into her right leg, as well as radiating neck pain into her shoulders; Plaintiff had similar complaints in November 2013, and January 2014. (R. at ...

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