United States District Court, N.D. Illinois, Eastern Division
CONSTANCE M. NOWAKOWSKI, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
E. COX U.S. MAGISTRATE JUDGE.
Constance Nowakowski (“Plaintiff”) filed this
action seeking reversal of the final decision of the
Commissioner of Social Security denying her application for
Disability Insurance Benefits (“DIB”) under Title
II of the Social Security Act (“the Act”).
Plaintiff has filed a brief, which this Court will construe
as a motion for summary judgment [dkt. 9], and the
Commissioner has filed a cross-motion for summary judgment
[dkt. 17]. For the reasons set forth below, Plaintiff's
motion for summary judgment is denied, and the
Commissioner's decision is affirmed.
filed an application for DIB on May 31, 2012, alleging a
disability onset date of December 17, 2010, due to
fibromyalgia, chronic low back pain, spinal fusion, severe
migraines, anxiety, and insomnia. (R. 14, 88, 154-57). Her
claim was denied initially on October 22, 2012 and again upon
reconsideration on April 12, 2013. (R. 14, 78-97). Plaintiff
timely requested a hearing before an Administrative Law Judge
(“ALJ”) on June 11, 2013. (R. 14). On November
19, 2014, Plaintiff, represented by counsel, appeared and
testified before ALJ Sylke Merchan. (R. 68-75). The ALJ also
heard testimony from vocational expert (“VE”)
Richard Fisher. (Id.). On January 26, 2015, the ALJ
issued a written decision denying Plaintiff's application
for DIB. (R. 14-26.) The Appeals Council (“AC”)
denied review on June 2, 2016, thereby rendering the
ALJ's decision as the final decision of the agency. (R.
1-7); Herron v. Shalala, 19 F.3d 329, 332 (7th Cir.
January 3, 2012, Plaintiff presented to pain management
specialist Yuliya Kin-Kartsimas, M.D., for her complaints of
low back pain. (R. 305-06). Plaintiff reported low back pain
which radiated to the left buttock, down to the leg and into
the anterior thigh. (R. 305). She described the pain as
sharp, burning, shooting, throbbing, and stabbing, and
indicated that it was moderate to severe. (Id.).
Plaintiff stated that her pain was aggravated by reaching,
bending, sitting, lifting, and standing, and her pain was
relieved by lying down, application of heat, and medications.
(Id.). She indicated that her mood had been good,
her pain was controlled with scheduled medications, and that
she was doing well overall. (Id.). Upon physical
examination, Dr. Kin-Kartsimas noted normal muscle tone and
bulk, 5/5 strength, and limited range of motion of the lumbar
and cervical spines. (R. 306). Dr. Kin-Kartsimas also noted
mild lumbar paravertebral tenderness and an antalgic
heel-to-toe gait. (Id.). Dr. Kin-Kartsimas assessed:
disorders of the sacrum; unspecified arthropathy involving
other specified sites; postlaminectomy syndrome of the lumbar
spine; and unspecified musculoskeletal disorders and symptoms
referable to the neck. (Id.).
continued to treat with Dr. Kin-Kartsimas approximately once
a month through July 10, 2012. (R. 289-306). Physical
examinations throughout this time period consistently
produced findings of full motor strength, normal muscle tone
and bulk, and grossly intact sensation. (R. 290, 294, 296,
298, 300, 303, 306). In May and June 2012, Dr. Kin-Kartsimas
noted that Plaintiff was unable to sit comfortably in her
chair and was constantly changing positions. (R. 291, 294).
On June 12, 2012, Plaintiff reported an exacerbation of her
pain and requested injections. (R. 291). On physical
examination, Dr. Kin-Kartsimas noted “significant
limitation in the range of motion” of the lumbar spine
in all planes due to pain and discomfort, and tenderness to
palpation over the CV joints 1 through 5, as well as over the
left trapezius muscle and illeolumbar ligaments. (R. 291-92).
Dr. Kin-Kartsimas administered injections, and Plaintiff
reported immediate relief. (R. 292). When Plaintiff returned
the next month, she reported some improvement after the
injection, although Dr. Kin-Kartsimas did note severe
tenderness in the lumbar and cervical paraspinal muscles. (R.
October 1, 2012, Plaintiff attended a psychological
consultation with Gregory Rudolph, Ph.D. (R. 315-18).
Plaintiff exhibited a somber, depressed mood and her affect
was anxious. (R. 317). However, she exhibited no thought
disturbances and she was polite, alert and oriented, with
clear thought processes. (R. 316-17). She displayed
appropriate memory for recent and remote events and she
displayed an adequate fund of information. (R. 317). She also
displayed good ability to “use judgment and reasoning
skills.” (R. 315, 317). Dr. Rudolph diagnosed
depression NOS and anxiety disorder, and assigned a GAF score
October 13, 2012, Plaintiff underwent a consultative internal
medicine examination by Dr. Julia Kogan, M.D. (R. 320-28).
Plaintiff reported a history of fibromyalgia and low back
pain status post lumbar discectomy and fusion. (R. 321). She
stated that she had difficulty bending, could not sit for
more than two hours, and could not vacuum or mop.
(Id.). Plaintiff reported constant low back pain,
which she rated between 6-9/10. (Id.). She stated
that she was on chronic narcotic pain medications and seeing
a pain management specialist. (Id.). Upon physical
examination, Plaintiff could ambulate 50 feet independently
and she had no difficulty tandem walking, standing and
walking on her heels and toes, squatting and arising, arising
from a seated position, or getting on and off the examination
table. (R. 323, 327-28). No paraspinal muscle spasm or muscle
atrophy was observed, and straight leg-raising was negative
bilaterally. (Id.). Plaintiff had full range of
motion in her cervical and lumbar spines, full range of
motion in the lower extremities, and normal range of motion
in the upper extremities. (R. 323-27). Although Plaintiff
stated she had no strength in her hands, Dr. Kogan documented
that grip strength was 5/5 in both hands. (R. 327). Sensation
and reflexes were normal throughout all extremities.
(Id.). However, Dr. Kogan did note several positive
fibromyalgia trigger points on examination. (R. 320). Dr.
Kogan assessed fibromyalgia and post-laminectomy syndrome,
and concluded that Plaintiff had no difficulty in standing,
bending, sitting, and hearing, and minimal difficulty lifting
and carrying. (R. 328). Plaintiff additionally had no
difficulty with speech, gait, or fine manipulation and
handling of small objects. (Id.).
October 17, 2012, state agency psychological consultant
Thomas Low, Ph.D., opined that Plaintiff's mental
impairment was not severe and that it resulted in only mild
restriction of activities of daily living, mild difficulties
in maintaining social functioning, and mild difficulties in
maintaining concentration, persistence, or pace. (R. 81-83).
Dr. Low noted that Plaintiff was not receiving any treatment
for depression and was merely taking Xanax for anxiety
provided by her primary care provider. (R. 83). He also noted
Plaintiff exhibited normal mental status except for a
depressed mood when she presented for the consultative
examination and he further noted that her activities of daily
living were functional, except for limitations imposed by her
physical condition. (Id.). Dr. Low's opinion was
affirmed at the reconsideration level by state agency
psychological consultant Russell Taylor, Ph.D. (R. 93-94).
agency medical consultant Francis Vincent, M.D., opined on
October 19, 2012, that Plaintiff retained the RFC to lift
and/or carry 20 pounds occasionally and 10 pounds frequently,
stand and/or walk for six hours in an eight-hour workday, and
sit for six hours in an eight-hour workday. (R. 84). State
agency medical consultant James Hinchen, M.D., affirmed Dr.
Vincent's RFC assessment at the reconsideration level on
April 11, 2013. (R. 95).
record also contains treatment notes from Plaintiff's
primary care physician, Dr. Gopal Bhalala, M.D. from June 25,
2012 through May 21, 2015. (R. 335-414, 432-34).
Unfortunately, Dr. Bhalala's handwritten notes from June
2012 through March 2013 are illegible. (R. 335-55). In May
2013, however, Dr. Bhalala's physical examination
findings included normal gait, normal sacroiliac joint
mobility bilaterally, no vertebral spine tenderness, no
paraspinal tenderness, and no sacroiliac joint tenderness.
(R. 375). Straight leg-raising test was negative bilaterally,
and motor function and sensation in the lower extremities
were normal. (Id.). Dr. Bhalala assessed
“unspecified backache, ” depressive disorder NOS,
and fibromyalgia. (Id.). The majority of the
subsequent treatment records are filled with inconsistencies.
For example, the physical examination notes pertaining to
inspection and palpation of the lumbar spine and lower back
read as follows:
INSPECTION: significant muscle spasm. PALPATION: Vertebral
spine tenderness, paraspinal tenderness, SI joint tenderness,
paraspinal spasm, no vertebral spine tenderness, no
paraspinal tenderness, vertebral spine tenderness, paraspinal
tenderness, SI joint tenderness, paraspinal spasm, no
vertebral spine tenderness, no paraspinal tenderness.
(See, e.g., R. 392, 395, 399, 402, 405, 408, 411,
432). Significantly, under “general examination”
at each of these visits, Dr. Bhalala specifically states,
“Back: no CVA tenderness.” (See, e.g.,
R. 393, 396, 400, 402, 405, 408, 411, 432). Furthermore, at
each examination Plaintiff's gait, motor functioning,
sensory examinations, and reflexes were found to be normal.
(R. 380-413, 432-33). Dr. Bhalala's treatment notes
reflect little more than the routine filling of
of the lumbar spine performed in November 2013 revealed a
satisfactory postoperative status at ¶ 5-S1 with no
signs of complication. (R. 430). Moderate degenerative facet
hypertrophic changes at ¶ 4-L5 with a prominent bulging
disc were noted, but there was no evidence of significant
spinal canal compromise or nerve root encroachment.
(Id.). Similarly, an MRI of the cervical spine
performed in December 2013 ...