United States District Court, N.D. Illinois, Eastern Division
LEROY C. BEHRENS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,  Defendant.
MEMORANDUM OPINION AND ORDER
E. Cox, Magistrate Judge
Leroy C. Behrens (“Plaintiff”) appeals the
decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying his
disability insurance benefits under Title II of the Social
Security Act. The parties have filed cross-motions for
summary judgment. For the reasons discussed more fully below,
the Court remands this matter for further proceedings
consistent with this opinion. Plaintiff's Motion to
Reverse the Final Decision of the Commissioner of Social
Security (dkt. 15) is granted as stated herein. The
Commissioner's Motion for Summary Judgment (dkt. 22) is
filed an application for disability insurance benefits on
October 17, 2012, with an alleged onset date of disability of
October 15, 2012. (Record (“R.”) 21, 334.)
Plaintiff was last insured for disability insurance benefits
on December 31, 2017. (R. 23.) Therefore, to obtain benefits,
Plaintiff would have to establish disability onset on or
before December 31, 2017.
the application process for disability insurance benefits,
the Plaintiff claimed he suffered from degenerative disc
disease of the lumbar spine. Id. Plaintiff has not
worked or engaged in gainful employment since October 15,
2012. (Id., Finding 2.)
Plaintiff's initial request for disability benefits was
denied on March 19, 2013, and again at the reconsideration
stage on September 20, 2013. (R. 21.) Plaintiff timely
requested an administrative hearing, which was held on
October 14, 2014, before Administrative Law Judge
(“ALJ”) Lee Lewin. (R. 39.) At the Administrative
Hearing, Plaintiff testified, as did a Medical Expert
(“ME”), Ronald A. Semerdjian, and a Vocational
Expert (“VE”), Jill Radke, OTR. (R. 39-90.) The
Plaintiff represented himself at the Administrative Hearing,
but later obtained counsel to assist him with his appeal. (R.
December 10, 2014, the ALJ issued a written decision finding
Plaintiff not disabled within the meaning of the Act and
denying the Plaintiff disability benefits. (R. 21-33.)
Plaintiff's Background and Medical History
is a male, born on May 6, 1957, and was 57 years old at the
time of the Administrative Hearing. (R. 45.) Before
Plaintiff's disability onset date, he worked in
Charleston, IL as a meat slicer at a sandwich shop and as a
sales associate at Walmart. (R. 78-79.) At the time of the
Administrative Hearing, Plaintiff had moved in with his
sister and her husband in Chicago, and Plaintiff helped out
around the house doing chores, such as sweeping and washing
the dishes. (R. 47, 51.) Plaintiff also worked 10 hours a
week stocking shelves at a dollar store, and volunteered
weekly at a food pantry helping customers carry items to
their cars. (R. 51-53.) Plaintiff indicated his back
condition caused problems with lifting, bending, prolonged
standing, and prolonged sitting and that he was unable to
find work due to his back condition. (R. 41-42; 56-57.)
Plaintiff also testified that lack of job opportunities in
Charleston prevented him from obtaining work, and that was
one of the reasons he moved to Chicago. (R. 53-54.)
medical records indicate Plaintiff first sought treatment for
his illness on February 17, 2010. (R. 24, 440.) The Plaintiff
sought emergency care after missing work for four to five
weeks due to back pain. (R. 440.) The Plaintiff complained of
discomfort in his left knee as well as pain in his back.
Id. Dr. Shane Cline, the emergency room physician,
prescribed the Plaintiff Naprosyn and Vicodin and recommended
that Plaintiff follow up with a primary care provider. (R.
440-41.) A little over one month after this emergency visit,
on March 22, 2010, Plaintiff sought chiropractic care and was
diagnosed with lumbar subluxation, lumbar radiculitis, and
muscle spasm. (R. 353-56.)
three years later, on March 12, 2013, Plaintiff underwent a
consultative examination by Dr. Vittal V. Chapa, MD. (R.
357-59.) Plaintiff complained to Dr. Chapa of numbness in the
left leg, and hip pain (at a 5 out of 10) if he stood for
long periods of time, for which he took Tylenol to relieve
the pain; Plaintiff reported he'd had these symptoms for
3 years. (R. 357.) Dr. Chapa's physical examination
demonstrated no edema of the lower extremities and peripheral
pulses were 3 bilaterally. (R. 358.) Plaintiff's ankle
reflexes were absent bilaterally and knee reflexes were 1
bilaterally. Id. Although there was decreased
pinprick sensation to the medial aspect of the left leg,
there was no specific motor weakness or muscle atrophy.
Id. An examination of the musculoskeletal system
revealed no evidence of joint redness, heat, swelling or
thickness. Id. There was no evidence of
paravertebral muscle spasms, lubrosacral spine flexion was
found to be normal, straight leg raising test was negative
bilaterally, and motor strength was full (5/5) in both lower
extremities. (R. 358-59.) Plaintiff had full range of motion
of all joints, no difficulty getting on or off the exam
table, and no difficulty with ambulation. (R. 359.) Dr.
Chapa's diagnostic impression was chronic lumbosacral
pain syndrome. Id.
months later, on June 11, 2013, Plaintiff saw Dr. Mark
Emenecker, D.O., and was seeking a medical evaluation for a
disability determination. (R. 377-80.) Plaintiff's pain
was a 6/10 and Plaintiff claimed to have heard a pop in his
back in 2009, causing chronic back pain ever since. (R.
377-78.) However, Plaintiff stated that after his 2010
chiropractic visit, he was not able to follow- up with any
medical treatment because of his lack of finances. (R. 378.)
Dr. Emenecker's physical examination was essentially
consistent with Dr. Chapa's consultative examination. (R.
25, 377-80.) The x-rays Dr. Emenecker took of Plaintiff's
back at that visit showed “significant degenerative
disc disease at the L4/L5 level” of his spine. (R.
379.) Ultimately, Dr. Emenecker' prescribed the Plaintiff
Naproxen, Tramadol (for breakthrough pain), and stretching
exercises. (R. 379-80.)
Emenecker saw the Plaintiff again on March 18, 2014. (R.
420.) Plaintiff told Dr. Emenecker that he had not seen a
doctor since his prior June 11, 2013 visit with Dr.
Emenecker, and that he had not taken the medications
prescribed by Dr. Emenecker since August 2013. (R. 420-21.)
At that time, Plaintiff reported no improvement in his back
pain and expressed some concern about weight gain from less
physical activity. (R. 420, 422.) Dr. Emenecker noted that
Plaintiff did not appear to be in acute distress. (R. 422.)
Plaintiff was able to stand from a seated position and walk
to the examination table without difficulty; he had a
somewhat exaggerated lumbar lordosis; there was minimal
tenderness over the left sacroiliac joint region of the
lumbar spine; rotation of the lumbar spine was relatively
symmetric; there was increased discomfort with right
rotation, but negative seated straight leg raising, no calf
tenderness, and normal reflexes. Id. Dr. Emenecker
recommended that Plaintiff undergo an MRI for further
evaluation, and after an extended discussion about the
benefits and potential outcomes of the test, as well as about
Plaintiff's potential Medicaid eligibility, Plaintiff
declined the MRI at that time. Id.
7, 2014, Plaintiff finally underwent an MRI of the lumbar
spine, which revealed L4-L5 acute on chronic disk
degenerative changes with resulting moderate left and right
neuroformainal stenosis at this level, but no evidence of
spinal canal stenosis at any level. (R. 424.)
17, 2014, Dr. Emenecker completed a medical source
statement. (R. 395-400.) In that statement Dr.
Emenecker opined that the Plaintiff was able to carry 50
pounds frequently and 100 pounds occasionally; sit five out
of eight hours in a work day and two hours at one time; stand
for three hours in an eight-hour work-day and one hour at a
time; walk one hour at a time and one hour during an
eight-hour work day; Plaintiff could climb ladders or
scaffolds and crouch and crawl occasionally, as well as climb
stairs and ramps, balance, stoop, and kneel frequently. (R.
2, 2014, Plaintiff presented to Presence Resurrection Medical
Center (“Resurrection”) complaining of acute
onset low back pain occurring 3 days prior when lifting
several 15 lb. bags at home. (R. 431.) At Resurrection,
Plaintiff stated that he acquired Medicaid this year, was not
on medication, and that he had laid down on the couch or bed
for the majority of the last few days following his acute
lifting injury. Id. Dr. David Remias saw Plaintiff
at Resurrection and conducted a physical examination which
demonstrated left paralumbar tenderness and limited range of
motion (flexion 30 degrees and extension 20 degrees);
strength at 4/5; good range in the straight leg raising test;
tenderness in the lumbar spine; and normal reflexes.
Id. Dr. Remias also noted that Plaintiff was
obese. Id. Dr. Remias diagnosed
Plaintiff with lumbar pain, lumbar strain, and chronic lumbar
radiculopathy, and sent Plaintiff for x-rays. (R. 432).
Additionally, Dr. Remias prescribed Plaintiff Prednisone for
his lower lumbar strain and advised that physical therapy
start immediately, that Plaintiff avoid prolonged sitting or
lying down, and to do gentle exercises for his back pain.
Id. On July 7, 2014, Plaintiff was given his x-ray
results from Dr. Remias, which showed “arthritis
throughout spine and obvious disc collapse at ¶
4-5.” (R. 433.) Plaintiff told Dr. Remias he was
improving (and indeed was less sore than on his July 2, 2014
visit to Dr. Remias), despite having fallen down the stairs
the night prior. Id.
17, 2014, Plaintiff appeared for a follow-up visit at
Resurrection and saw Dr. Raman Singh, D.O. (R. 435.)
Plaintiff told Dr. Singh that he did not initiate physical
therapy because he could not find the time to go.
Id. Overall, Plaintiff stated that pain had
improved, and he was now able to ambulate well, bend forwards
and backwards without pain. Id. Plaintiff's
flexion had increased to 60 degrees, extension stayed at 20
degrees, lateral rotation was up to 70 degrees, and ...