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Nowakowski v. Berryhill

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

September 13, 2017

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



         Plaintiff 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.


         I. Procedural History

         Plaintiff 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. 1994).

         II. Medical Evidence

         On 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.).

         Plaintiff 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. 289-90).

         On 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 of 45.[2]

         On 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.).

         On 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).

         State 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).

         The 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 prescriptions.

         An MRI 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 ...

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