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Randall M. v. Berryhill

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

June 13, 2019

RANDALL M., Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations for the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          Susan E. Cox, U.S. Magistrate Judge.

         Plaintiff Randall M.[1] appeals the decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his disability insurance benefits (“DIB”) under the Social Security Act. The Parties have filed cross motions for summary judgment.[2] For the reasons detailed below, the Commissioner's Motion for Summary Judgment (dkt. 24) is granted and Plaintiff's motion (dkt. 16) is denied.

         I. Background

         a. Factual Background and Procedural History

         Plaintiff injured his back while working as a warehouse worker for Jewel Osco; while lifting a 90-pound case of meat, he felt pain in his lower back. (R. 268, 591.) An MRI from August 2013 showed “[s]ingle level left paracentral broad-based disc protrusion with visible annular tear at ¶ 4-L5, causing left lateral recess and left neural foraminal narrowing with compression of the exiting left L4 and traversing left L5 nerve roots.” (R. 272.) On August 8, 2013, Plaintiff presented to his treating physician, Dr. Kevin M. Koutsky, M.D., who diagnosed Plaintiff with lumbar spondylosis, recommended physical therapy and light-duty restrictions at work, and prescribed pain medications. (R. 269.) During the remainder of 2013, Plaintiff underwent a conservative treatment regimen, including physical therapy and epidural injections, but his condition did not show significant improvement. (R. 262-68.) Despite seeing some improvement during the first quarter of 2014, Plaintiff reached a plateau, and began discussing the possibility of surgical interventions more seriously with Dr. Koutsky. (R. 259-62.)

         On May 2, 2014, Dr. Howard An, M.D., performed an Independent Medical Examination (“IME”). (R. 228.) Dr. An diagnosed Plaintiff with “axial back pain with left-sided L4 radiculopathy due to protruding disc into the foramen at ¶ 4-L5 with L4 radiculopathy.” Id. Dr. An noted that Plaintiff had received “all appropriate treatment so far, but his symptoms persist, therefore microscopic laminoforaminotomy at ¶ 4-L5 may be a reasonable option for this patient to relieve his radicular symptom and improve his condition.” (R. 229.) Dr. An opined Plaintiff had reached maximum medical improvement with therapy and could perform light duty work, provided he did not lift more that 20 pounds, and avoided frequent bending and twisting. Id. According to Dr. An, Plaintiff's prognosis with the aforementioned surgery would be a return to work in two to three months following surgery, with maximum medical improvement following the surgery being reached in four or five months. Id.

         Following the IME, Plaintiff continued treating with Dr. Koutsky with physical therapy and pain medication for breakthrough pain. (R. 258.) On June 26, 2014, Plaintiff indicated he would like to go forward with lumbar decompression surgery, and Dr. Koutsky prescribed a surgical back brace, a cold therapy unit, a TENS unit, and a home exercise kit to aid Plaintiff in his recovery from the surgery. (R. 256-257.) A July 11, 2014 MRI showed L4-L5 disc bulging and narrowing of the foramina. (R. 271.)

         On August 12, 2014, Dr. Koutsky performed a decompressive laminectomy L4-L5 with foraminotomy for lateral recess stenosis on Plaintiff. (R. 316.) In the weeks following surgery, Plaintiff continued to follow-up with Dr. Koutsky and participate in physical therapy. (R. 455, 459.) An MRI from September 18, 2014, showed: 1) postoperative changes following laminectomy L4-L5; 2) enhancing fluid collection in the subcutaneous fat in the operative site and the epidural space at ¶ 4-L5; and 3) residual mild disc bulge and endplate spurring at ¶ 4-L5 without new disc herniation or spinal stenosis. (R. 463.) Approximately six weeks post-surgery, Plaintiff began to notice some drainage in his surgical wounds, and Dr. Koutsky believed that an irrigation and debridement surgery would need to be performed. (R. 454.) Plaintiff had that surgical procedure done on September 30, 2014, and was discharged from the hospital October 2, 2014. (R. 387.)

         After three weeks of healing, Plaintiff was cleared to resume physical therapy. (R. 450.) On December 11, 2014, Dr. Koutsky opined that Plaintiff would “likely need a few more months of therapy” and would remain off work during that time. (R. 448.) Plaintiff continued physical therapy and treating with Dr. Koutsky until May 4, 2015, when he was transitioned to a work hardening/conditioning program; the plan was to conduct a functional capacity examination (“FCE”) following completion of the work hardening/conditioning program. (R. 671.) Following 20 sessions of work conditioning, Plaintiff was able to walk without pain for 30 minutes at two miles per hour, his lumbar range of motion was within normal limits, and could lift 20 pounds from floor to his waist 10 times with minimal complaints of low back pain. (R. 730.) His physical therapist reported that he was able to tolerate constant standing, and frequent squatting, stooping, bending, and twisting. (R. 731.) After, 30 sessions of work conditioning, Plaintiff was additionally able to lift 45 pounds from knee to waist for two sets of ten repetitions. (R. 732.)

         On July 29, 2015, Plaintiff had an FCE with Agnes C. Lim, P.T. (R. 722.) Ms. Lin made the following findings regarding Plaintiff's functional activity tolerance: 1) frequent sitting, standing, and walking; 2) frequent stooping/bending; 3) constant twisting; 4) frequent squatting; 5) frequent pushing/pulling a sled with 45 pounds for 25 feet; 6) occasional pushing/pulling a sled with 60 pounds for 25 feet; 7) frequent lifting/carrying 25 pounds from floor to chest for 15 feet; 8) occasional lifting/carrying 45 pounds from floor to chest for 15 feet; 9) frequent reaching with deficits; and 10) constant grasping/handling. (R. 727.) She concluded that Plaintiff's “current functional abilities and musculoskeletal findings demonstrate that he cannot return to his previous full work activity.” (R. 723.) However, she found that Plaintiff “demonstrated the physical capabilities to function at the Light-Medium Physical Demand Level as defined by the U.S. Department of Labor, which is indicative of a 2-hand occasional lift of 45 lbs. from floor to chest level.” (R. 722.)

         Plaintiff follow-up with Dr. Koutsky after the FCE on August 6, 2015. (R. 667.) Dr. Koutsky noted that Plaintiff's therapist recommended Plaintiff continue with work conditioning until the end of the month, kept Plaintiff off work, and gave Plaintiff bilateral paralumbar muscle trigger point injections. (R. 667.) Plaintiff continued work conditioning into September 2015, at which time he was scheduled for a final FCE. (R. 752.) According to Dr. Koutsky, “[w]e anticipate returning him to work per the FCE restrictions, however, he remains off, pending the evaluation.” Id.

         A second FCE was performed by Ms. Lim on September 23, 2015. (R. 782.) She concluded that Plaintiff's “current functional abilities and musculoskeletal findings demonstrate that he cannot return to his previous full work activity” because he was unable to meet the necessary push/pull and lift/carry requirements to perform his essential job demands. (R. 783.) However, she found that Plaintiff “demonstrated the physical capabilities to function at the Medium Physical Demand Level as defined by the U.S. Department of Labor, which is indicative of a 2-hand occasional lift of 50 lbs. from floor to chest level.” Id.

         On October 22, 2015, Plaintiff reported to Dr. Koutsky that he had completed his work conditioning program and he had been improving. (R. 751.) On November 19, 2015, Dr. Koutsky noted that Plaintiff had completed all of his physical therapy, advised Plaintiff to continued his physical therapy exercises at home, and released him to work with restrictions consistent with his FCE. (R. 750.) Plaintiff continued to follow up with Dr. Koutsky through the first half of 2016; although he occasionally had increased back pain, he reported he was managing his condition “fairly well” through home exercise and as-needed pain medication. (R. 747-49.)

         Plaintiff filed his application for disability insurance benefits on June 9, 2014. (R. 21.) His claim was denied initially on August 25, 2014, and upon reconsideration on April 15, 2015. Id. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held in Chicago on October 27, 2016. Id. The ALJ issued a written opinion on January 9, 2017, finding that Plaintiff had been disabled from October 18, 2013, through July 28, 2015, but was not disabled beginning on July 29, 2015. (R. 21-38.) Plaintiff requested a review by the Appeals Council, which was denied on January 24, ...


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