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McFarland v. Berryhill

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

September 18, 2017

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



         Plaintiff Sabrina Loraine McFarland (“Plaintiff”) appeals the decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her disability insurance benefits under Titles II and XVI of the Social Security Act. For the following reasons, Plaintiff's motion [16] is granted, the Commissioner's motion is denied [21]. This case is remanded for further proceedings consistent with this opinion.

         I. Background

         A. Procedural History and Claimant's Background

         Plaintiff filed an application for disability insurance benefits on August 21, 2012, with an alleged onset date of disability as of August 27, 2010. (Record (“R”) 142.) Her initial application was denied on February 19, 2013 and again at the reconsideration stage on September 24, 2013. (R. 116, 117, 140, 141.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held on February 2, 2015. (R. 19.) Plaintiff appeared and testified. (R. 38-74.) Vocational Expert (“VE”), Richard T. Fisher also appeared and offered testimony. (R. 74-95.) On February 23, 2016, the ALJ issued a written decision finding her not disabled within the meaning of the Act and denying Plaintiff's application for Social Security Disability Income (“SSDI”). (R. 19-31.) On April 28, 2016, the appeals council denied Plaintiff's request for Review, thereby rendering the ALJ's decision as the final decision of the agency. (R. 1-6); Herron v. Shalala, 19 F.3d 329, 332 (7th Cir. 1994). Plaintiff then filed this civil action pursuant to 42 U.S.C. §§ 405(g) and 1383(c).

         B. Factual Evidence

         The Plaintiff was born November 7, 1970 and has two children aged 24 and 22, who live with her in her apartment. (R. 42-43.) Plaintiff has a high school diploma and worked prior to an accident in 2010 as a cashier and shift supervisor at various businesses, including CVS Pharmacy and K & G Fashion. (R. 44, 291.) After 2010, she worked for short periods of time as a cashier at Moran Foods/Save A Lot and Walmart as well as a babysitter. (R. 48, 291.)

         The medical records indicate that the Plaintiff suffers from an L5 pars defect, obesity, and osteoarthrosis of the knee. (R. 22, 110.) Plaintiff also testified that she suffers from anemia, and treats it with iron supplements. (R. 62.) The lower back issues were caused on August 22, 2010, when Plaintiff accidentally slipped and fell while lifting a case of tea while working at CVS Pharmacy. (R. 345.) Treating physician Dr. Anis Mekhail saw Plaintiff at Little Company of Mary Hospital on August 30, 2010, a week after the accident occurred, and for several checkups in September 2010. (R. 345-63, 385-88.)

         Dr. Mekhail diagnosed Plaintiff with obesity as well as lumbar strain and referred her for physical therapy three to five times a week, and a MRI. (Id.) She underwent the MRI on November 5, 2010, which revealed mild facet hypertrophy in the lumbar spine, L4-5 and L5-S1 disc space narrowing, and disc desiccation with a suggestion of bilateral pars defects, but no evidence of spondylolisthesis. (R. 390.) Plaintiff was discharged from physical therapy on December 12, 2010. (R. 364) Plaintiff returned in February 2011, continuing to complain about the pain and an epidural injection was recommended. (Id.) A year later, in February 2012, Plaintiff again returned but had not received the injection. (Id.) Under Dr. Mekhail's recommendation, she received the epidural injection and underwent a CT myelogram and a functional capacity evaluation. (Id.)

         On November 9, 2011 and December 3, 2011, Plaintiff underwent MRIs of her left and right knees. (R. 680-777.) These MRIs revealed moderate joint effusion and severe chondromalacia, also known as “runner's knee, ” of the medial compartment in the right knee, and moderate chondromalacia of the medial femoral condyle. (Id.) Plaintiff did not return to the University of Illinois regarding her knee pain after she received a corticosteroid injection in the left knee and a referral for physical therapy. (Id.)

         On March 28, 2012, at the referral of Dr. Mekhail, evaluating physician Dr. Daniel Joda conducted a functional evaluation exam and concluded that the Plaintiff was capable of functioning at the light physical demand level (R. 408-16.) Dr. Joda noted that this conclusion was made despite inconsistent effort shown by the Plaintiff during the exam. (Id.) The inconsistencies included failing 7 out of 7 validity criteria for upper extremity hand and pinch grip testing, indicating a sub-maximal effort was given. (R. 409.) Additionally, Dr. Joda noted that he observed that measured abnormal pain behaviors (AROM) were significantly different than observed AROM when in a non-testing situation, possibly due to symptom magnification. (Id.) In June 2012, Plaintiff returned to Dr. Mekhail, whose records indicate that she said she could perform her job as a cashier and that she was functioning well. (R. 400.) In August 2012, Dr. Mekhail's records note that Plaintiff's back pain had returned and he recommended pain management. (R. 401.)

         Plaintiff underwent two physical consultative examinations (“CE”). (R. 551-57, 560-63.) The first CE was completed by Dr. Dante Pimentel on January 25, 2013, and the second was completed by Dr. Alexander Panagos on September 13, 2013. (R. 551-57, 560-63.) Dr. Pimentel found Plaintiff tested normally in most aspects and diagnosed migraines, right knee arthropathic, lumbosacral back pain, radicular pain, and obesity. (R. 554.) Dr. Pimentel also found that Plaintiff's ability to lift, carry, handle objects, and carry out work-related activities was mildly impaired. (R. 554.) Later that year, Dr. Panagos found that Plaintiff's musculoskeletal and neurological exams returned normal results and diagnosed spondylolisthesis of the lumbar spine, arthralgias of both knees, chronic migraines, and stable angina. (R. 563.)

         The record also indicates that Plaintiff received medical source statements (“MSS”) from two physicians. (R. 442-43, 833-34.) The first MSS was provided by Dr. Daniel Cammarano on December 7, 2012. (R. 442-43.) Dr. Cammarano examined Plaintiff once and assessed that she was unable to stand/walk in an eight-hour workday and able to sit for one hour in an eight-hour workday. (R. 442-43.) The second MSS was provided by Dr. Thomas Bilko on December 22, 2014. (R. 833-34.) Two years later, Dr. Bilko saw Plaintiff over the course of three months and assessed that she could stand/walk for zero to one hour in an eight-hour workday and sit for one hour in an eight-hour workday. (Id.)

         Two State Agency physicians have also reviewed Plaintiff's medical records and supplied assessments of Plaintiff's condition. (R. 100-13, 123-26.) Dr. Lenore Gonzalez filled out an RFC assessment on February 4, 2013. (R. 100-13.) Dr. Gonzalez diagnosed Plaintiff with severe degenerative disc disease, osteoarthritis, and migraines. (R. 100, 110.) Dr. Gonzalez also assessed that Plaintiff could sit for six hours in an eight-hour workday, stand/walk for six hours in an eight-hour workday, lift/carry ten pounds, and should avoid exposure to extreme environmental conditions. (R. 101-13.) The second RFC was provided ...

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