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Behrens v. Berryhill

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

September 13, 2017

LEROY C. BEHRENS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.


          Susan E. Cox, Magistrate Judge

         Plaintiff 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 denied.


         Plaintiff 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.

         During 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.)

         The 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. 41-42, 195-96.)

         On 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.)


         A. Plaintiff's Background and Medical History

         Plaintiff 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.)

         The 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.)

         Nearly 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.

         Three 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.)

         Dr. 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.

         On May 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.)

         On June 17, 2014, Dr. Emenecker completed a medical source statement.[2] (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. 31, 395-400.)

         On July 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.[3] 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.

         On July 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 ...

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