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Banks v. Berryhill

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

September 19, 2017

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



         Plaintiff Isaac Banks (Plaintiff) filed this action seeking reversal of the final decision of the Commissioner of Social Security denying his application for Disability Insurance Benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act (Act). 42 U.S.C. §§ 405(g), 423 et seq. The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c), and filed cross motions for summary judgment. For the reasons stated below, the case is remanded for further proceedings consistent with this Opinion.


         To recover DIB or SSI, a claimant must establish that he or she is disabled within the meaning of the Act. York v. Massanari, 155 F.Supp.2d 973, 977 (N.D. Ill. 2001).[2] A person is disabled if he or she is unable to perform “any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. §§ 404.1505(a), 416.905(a). In determining whether a claimant suffers from a disability, the Commissioner conducts a standard five-step inquiry:

1. Is the claimant presently unemployed?
2. Does the claimant have a severe medically determinable physical or mental impairment that interferes with basic work-related activities and is expected to last at least 12 months?
3. Does the impairment meet or equal one of a list of specific impairments enumerated in the regulations?
4. Is the claimant unable to perform his or her former occupation?
5. Is the claimant unable to perform any other work?

20 C.F.R. §§ 404.1509, 404.1520, 416.909, 416.920; see Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). “An affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than Step 3, ends the inquiry and leads to a determination that a claimant is not disabled.” Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985). “The burden of proof is on the claimant through step four; only at step five does the burden shift to the Commissioner.” Clifford, 227 F.3d at 868.


         Plaintiff protectively applied for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on May 24, 2013, alleging that he became disabled on December 20, 2012, due to a fractured spine. (R. at 20, 77, 84). These claims were denied initially and upon reconsideration, after which Plaintiff filed a timely request for a hearing. (Id. at 20, 140-41). On December 9, 2015, Plaintiff, represented by counsel, testified at a hearing before Administrative Law Judge (ALJ) Luke Woltering. (Id. at 20, 33-75). The ALJ also heard testimony from Jackie Bethel, a vocational expert (VE). (Id.).

         The ALJ denied Plaintiff's request for benefits on January 22, 2016. (R. at 17- 28). Applying the five-step sequential evaluation process, the ALJ found, at step one, that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of December 20, 2012. (Id. at 22). At step two, the ALJ found Plaintiff's cervical spinal stenosis with cervical radiculopathy and chronic pain syndrome to be severe impairments. (Id.). At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meet or medically equal the severity of any of the listings enumerated in the regulations. (Id. at 24).

         The ALJ then assessed Plaintiff's Residual Functional Capacity (RFC)[3] and determined that Plaintiff has the RFC to perform light work with the following additional limitations: “no overhead reaching; occasional reaching in other directions; occasional handling, fingering, and feeling with the left non-dominant upper extremity; no crawling or climbing ladders, ropes or scaffolds; occasional stooping, kneeling and crouching.” (R. at 24). The ALJ determined at step four that Plaintiff was capable of performing his past relevant work in general merchandise sales. (Id. at 27). Accordingly, the ALJ concluded that Plaintiff was not under a disability, as defined by the Act, from the alleged onset date through the date of the ALJ's decision. (Id. at 28).

         The Appeals Council denied Plaintiff's request for review on June 24, 2016. (R. at 1-3). Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).


         Judicial review of the Commissioner's final decision is authorized by § 405(g) of the Act. In reviewing this decision, the Court may not engage in its own analysis of whether the plaintiff is severely impaired as defined by the Social Security Regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Nor may it “reweigh evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute [its] own judgment for that of the Commissioner.” Id. The Court's task is “limited to determining whether the ALJ's factual findings are supported by substantial evidence.” Id. (citing § 405(g)). Evidence is considered substantial “if a reasonable person would accept it as adequate to support a conclusion.” Indoranto v. Barnhart, 374 F.3d 470, 473 (7th Cir. 2004); see Moore v. Colvin, 743 F.3d 1118, 1120-21 (7th Cir. 2014) (“We will uphold the ALJ's decision if it is supported by substantial evidence, that is, such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”) (citation omitted). “Substantial evidence must be more than a scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). “In addition to relying on substantial evidence, the ALJ must also explain his analysis of the evidence with enough detail and clarity to permit meaningful appellate review.” Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005).

         Although the Court accords great deference to the ALJ's determination, it “must do more than merely rubber stamp the ALJ's decision.” Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (citation omitted). “This deferential standard of review is weighted in favor of upholding the ALJ's decision, but it does not mean that we scour the record for supportive evidence or rack our brains for reasons to uphold the ALJ's decision. Rather, the ALJ must identify the relevant evidence and build a ‘logical bridge' between that evidence and the ultimate determination.” Moon v. Colvin, 763 F.3d 718, 721 (7th Cir. 2014). Where the Commissioner's decision “lacks evidentiary support or is so poorly articulated as to prevent meaningful review, the case must be remanded.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).


         Plaintiff's injuries reportedly stem from a July 2012 altercation in which he was hit in the back/neck with a crowbar. (R. at 327). In January 2013, Plaintiff began experiencing symptoms of numbness and tingling in the left arm and hand, and pain in the left shoulder and elbow. (Id.) A January 14, 2013 MRI of the cervical spine revealed severe spinal stenosis with spinal cord compression at ¶ 6-C7, associated with a prominent disc protrusion that was more marked on the left. (Id. at 303). The interpreting radiologist indicated that alteration of the spinal cord signal at this level was consistent with myelomalacia (softening of the spinal cord) and/or edema. (Id.). The MRI also revealed evidence of underlying congenital cervical spinal stenosis, as well as a smaller disc protrusion and less marked cord compression at ¶ 5-C6. (Id.).

         Plaintiff was referred to the neurology department at Rush University Medical Center and met with Laura Jawidzik, M.D., on January 29, 2013, for further evaluation. (R. at 339-42). Dr. Jawidzik assessed cervical myelopathy from severe spinal stenosis. (Id. at 342). Given the degree of compression, Dr. Jawidzik referred Plaintiff to neurosurgeon Harel Deutsch, M.D., for an urgent surgical evaluation. (Id.). Due to the degree of pain and Plaintiff's failure to improve with more conservative measures, Dr. Deutsch recommended surgery. (Id. at 309).

         On February 22, 2013, Plaintiff underwent at ¶ 6-C7 anterior cervical discectomy and fusion performed by Dr. Deutsch. (R. at 343). At a May 2013 follow-up visit, Plaintiff reported tingling and numbness in his left arm and hand, although no abnormalities were noted on physical examination. (Id. at 306). Dr. Deutsch assessed cervical spinal stenosis. (Id.). On August 7, 2013, Plaintiff returned to Dr. Deutsch with complaints of intermittent neck pain, upper back pain, left arm pain (described as a burning sensation), and continued numbness and tingling in the fingers on his left hand. (Id. at 305). Dr. Deutsch's findings on physical examination remained unchanged from Plaintiff's prior visit. (Id.). Dr. Deutsch again assessed cervical spinal stenosis and noted that Plaintiff continued to take Neurontin and Norco for his pain. (Id.).

         Plaintiff began treating with a new primary care physician, Michael Appiagyei, M.D., on August 30, 2013. (R. at 369-71). The medical records reflect an ongoing treatment relationship where Plaintiff met with Dr. Appiagyei on an almost monthly basis between August 2013 and November 2015. (Id. at 369-435). Dr. Appiagyei's diagnoses included: cervical radiculopathy (id. at 370, 403, 411); displaced cervical intervertebral disc (id. at 376, 385); cervical disc disorder with myelopathy (id. at 373); displaced lumbar intervertebral disc (id. at 388); lumbago with sciatica on the right side (id. at 437); and chronic pain syndrome (id. at 371, 375, 377, 379, 388, 393, 399, 401, 409, 414, 418, 420, 422, 427, 430, 434).

         The records indicate that Plaintiff benefitted from the use of Norco and Neurontin and that his pain was generally noted to be “controlled”; however, Plaintiff consistently reported pain levels of 7-8/10. (See, e.g., R. at 369, 374, 376, 378, 381, 392, 397, 408, 410, 413, 416, 419, 421, 429, 429, 433, 438). Aggravating factors included lifting, movement, and prolonged sitting. (Id. at 369, 372, 374, 404, 408, 429). Plaintiff demonstrated decreased and/or limited range of motion in his back and neck at nearly every visit. (Id. at 370, 375, 377, 379, 382, 392, 393, 399, 403, 409, 411, 414, 430, 439). Most physical examinations demonstrated normal musculoskeletal symmetry, tone, and strength; however, diminished strength and tone were noted in December 2013 and January 2015. (Id. at 379, 402). Wasting/atrophy of the left arm and hand was documented in September 2013, January and February 2014, and January 2015. (Id. at 373, 385, 388, 402). Plaintiff frequently reported symptoms of numbness, tingling, and pain radiating into his arms. (Id. at 369, 384, 387, 389, 392, 402, 410, 416, 433). Tenderness in Plaintiff's cervical and lumbar paraspinal muscles was noted in August and September 2013, May 2014, and April 2015. (Id. at 370, 373, 393, 414).

         On September 13, 2013, Towfig Arjmand, M.D., a nonexamining DDS consultant, reviewed Plaintiff's records and completed a physical RFC assessment. (R. at 77-82). Dr. Arjman opined that Plaintiff could lift and/or carry up to 50 pounds occasionally and 25 pounds frequently, could stand and/or walk for up to six hours in an eight-hour workday, and could sit for up to six hours in an eight-hour workday. (Id. at 80). Dr. Arjmand additionally concluded that objective evidence alone ...

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