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Martina v. Berryhill

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

July 26, 2018

George Martina Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, [1] Defendant.


          Iain D. Johnston United States Magistrate Judge.

         In 2009, plaintiff George Martina developed back pain and eventually stopped working. In 2011, he filed Title II and Title XVI applications for disability benefits. On February 12, 2013, an administrative law judge (“ALJ”) found that plaintiff was not disabled because he was capable of doing light work. Plaintiff did not appeal that decision, but filed new disability applications. These were considered by a different ALJ who concluded, in October 2015, that plaintiff was still capable of doing light work. However, because plaintiff turned 55 on May 26, 2014, plaintiff qualified as disabled, as of that date, under the grid rules. This appeal concerns the finding that plaintiff was not disabled during the 15-month period from the prior ALJ's ruling, which was res judicata, until May 26, 2014. Plaintiff argues that the ALJ's analysis was flawed in multiple ways. This Court finds that a remand is required, primarily because the ALJ's credibility analysis.


         The relevant medical record, as identified by the parties and the ALJ, covers the period from roughly May 2012 to May 2014.

         On May 23, 2012, plaintiff was treated by Christopher Parrett, a chiropractor. Dr. Parrett (the label plaintiff uses) examined plaintiff, performed several tests, and reviewed x-rays showing that plaintiff had degenerative joint disease at ¶ 5 and C6. R. 308. Dr. Parrett recommended that plaintiff start a “corrective care plan” consisting of 3 visits a week for 12 weeks and also do home exercises to stabilize his muscles. R. 308. It does not appear that plaintiff followed through with these recommendations, although he later saw Dr. Parrett several more times. See R. 311 (June 21, 2012 visit); R. 312 (May 6, 2013 visit).

         On March 13, 2013, plaintiff treated with Dr. Kimberly Strange at the Crusader Clinic. Dr. Strange performed a physical examination, and recommended that plaintiff start taking a Diclofenac Sodium Tablet for the back pain and also start home exercises. R. 297.[2] An interpretation of an x-ray taken the same day stated the following: “Disc space heights vertebral body heights and alignment are normal. Multilevel facet arthrosis. Severe atherosclerotic calcification of the abdominal aorta and iliacs.” R. 301.

         On May 8, 2013, plaintiff saw Dr. Kimberly Miller at the Crusader Clinic. Plaintiff reported that the Diclofenac did not help his back pain, that he was continuing to see the chiropractor, that he was continuing to use Ibuprofen and Tylenol, and that he wanted a prescription for a cane. R. 295. Dr. Miller examined plaintiff and recommended that he continue his current care and that he try physical therapy and “possible further imaging.” Id. At plaintiff's request, she issued a prescription for the cane. R. 322.

         On May 28, 2013, Dr. Parrett completed a four-page “Physical Medical Source Statement” in which he opined, among other things, that plaintiff could sit, stand, or walk each for less than two hours in an eight-hour workday. R. 325.

         On August 15, 2013, plaintiff was examined by Dr. Ramchandani, a consultative examiner. He noted, among other things, that plaintiff had a normal gait and was “able to walk unassisted for 50 feet.” R. 314. He diagnosed plaintiff with “[a]rthralgia of lumbar spine secondary to arthritis.” R. 315.

         On August 28, 2013, plaintiff was interviewed by Dr. John Peggau, a consultative examiner. He diagnosed plaintiff with alcohol use disorder, in remission; unspecified bipolar disorder; and unspecified personality disorder. R. 319.

         On March 18, 2014, plaintiff had a CT lumbar scan. The report gave the following conclusion: “No discrete disc herniation seen at any lumbar level, however degenerative changes are resulting in bilateral foraminal stenosis at ¶ 4-5, right worse than left.” R. 349. On March 24, 2014, plaintiff was examined by Dr. Syed Hassan who suggested that plaintiff seek a surgery referral and apply a lidocaine patch every 12 hours. R. 356.

         On April 16, 2014, plaintiff was seen by Dr. Brian Braaksma who examined plaintiff and reviewed four x-rays. He diagnosed plaintiff with degenerative disc disease and facet arthropathy, and recommended that plaintiff enroll in “a course of physical therapy for core strengthening” and that he take Mobic for six weeks. He also suggested an MRI to “rule out neurocompression.” R. 337.

         Plaintiff saw Dr. Braaksma again on May 23, 2014. Plaintiff reported that his back pain was about the same, rating it 3/10 at rest and 10/10 while active. Plaintiff stated that he was not taking any pain medications and was not doing physical therapy. R. 333. Dr. Braaksma told plaintiff that there was no surgical option available and encouraged plaintiff to “pursue an exhaustive course of conservative care, ” including physical therapy. R. 334.

         A hearing was held on September 17, 2015. Plaintiff and a vocational expert ...

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