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Jolene C. v. Saul

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

July 11, 2019

Jolene C. Plaintiff,
Andrew Marshall Saul, Commissioner of Social Security, Defendant.



         Plaintiff Jolene C. brings this action under 42 U.S.C. § 405(g) challenging the denial of disability benefits. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 42 U.S.C. 626(c). For the reasons set forth below, the decision is reversed and remanded for further proceedings consistent with this Memorandum Opinion and Order.

         I. BACKGROUND

         Plaintiff was born on August 6, 1972. In July 2001, Plaintiff received a lumbar epidural anesthetic injection for labor and delivery and suffered numbness from her right inner thigh to her right inner calf muscles. R. 254. On September 13, 2011, Plaintiff filed her application for disability insurance benefits, alleging disability since May 1, 2007 with a date last insured on June 30, 2012. R. 9. On January 23, 2013, the Administrative Law Judge (“ALJ”) held a hearing to review the Commissioner's denial of Plaintiff's request for benefits. R. 23. Plaintiff testified that she still felt numbness, she could not sit very long, she had to ice and elevate her knee daily, she was unable to stand for long periods of time, and her leg had gotten weaker since the alleged onset. R. 29-31. On March 29, 2013, the ALJ issued his decision that Plaintiff was not disabled. R. 9-16. Plaintiff filed a complaint in the U.S. District Court for the Northern District of Illinois on July 23, 2014, and on April 11, 2016, Magistrate Judge Iain Johnston issued an opinion remanding the decision for further proceedings. R. 823-51.

         Pursuant to the remand, the Appeals Council directed the ALJ to conduct another administrative hearing to primarily give more extensive discussion of the musculoskeletal listings in relation to the Plaintiff's condition. R. 725. On October 18, 2016, Plaintiff, represented by an attorney, testified at another hearing before the ALJ. Dr. Steven Golub, an impartial medical expert, and Diamond Warren, an impartial vocational expert, appeared and testified at the hearing. R. 743-803.

         Plaintiff testified that her leg worsened and that she could only walk half a block. R. 754. She testified that Dr. Christopher Jelinek was her primary care physician and that he was familiar with how Plaintiff was functioning the past several years. R. 757-58. Plaintiff further testified that Dr. Jelinek's only recommendation was physical therapy. R. 758. Plaintiff was only able to sit fifteen to twenty minutes before she had to stand up. R. 761. At home, Plaintiff took care of the children, did laundry, vacuumed, and performed other household activities. R. 762. Plaintiff testified that she could do a household activity for only about ten or fifteen minutes before she had to sit. R. 763.

         Dr. Golub testified as an impartial medical expert who reviewed Plaintiff's medical records. Dr. Golub testified that he was familiar with Listing 1.04, disorders of the spine. R. 769. Listing 1.04(A) describes disorders of the spine with “[e]vidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss . . . accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test[.]” 20 C.F.R. Pt. 404, Subpt. P, App. 1. Dr. Golub testified that he had reviewed records of Dr. Mirza from July of 2001, including an EMG that was consistent with radiculopathy. Dr. Golub agreed that at least as of 2001 Plaintiff's doctors were diagnosing some kind of neurologic injury. Dr. Golub stated he reviewed an MRI from April 2004 and the latest thorough examination he reviewed was by Dr. Arcadio Dumpit in November 2011.[1] R. 770. Based on the history and findings set forth in his record review, the ALJ asked Dr. Golub if Plaintiff satisfied the requirements of Listing 1.04(A). Dr. Golub answered, “Yes.” R. 773. Dr. Golub stated that the straight leg raise was positive back in 2011 and there was neuroanatomic distribution, both of which equaled the requirements in Listing 1.04(A). Id. The ALJ then pointed to the examination from June 2014 by Plaintiff's treating family physician, Dr. Jelinek. Id. Dr. Jelinek found Plaintiff's straight leg raising was negative. Id. The ALJ asked Dr. Golub in light of these findings “[a]re you changing your mind about whether or not this person meets or equals a listing?” R. 774. Dr. Golub responded, “I think it's going to be really difficult to make concrete appraisal without a more thorough, a more recent exam.” Id.

         The ALJ also asked Dr. Golub about his opinion regarding Plaintiff's capacity to do work before June of 2012. He read Dr. Golub the results of a 2006 MRI of the lumbar spine. Dr. Golub testified that “based on that [MRI report, ] there's no nerve root impingement. And, by the way, there was no nerve root impingement in 2002 either. So, that leads me to wonder, why the degree of clinical symptoms . . . I really think she needs a thorough clinical exam to see what the level of dysfunction is.” R. 778. The ALJ asked him “Do you feel confident that she meets or equals a listing?” Id. He stated “No, not -- I don't know, because you -- that exam bothers me in 2014.” Id.

         Diamond Warren, the vocational expert, also testified at the hearing. The ALJ asked if there are jobs for an individual with Plaintiff's residual functional capacity (“RFC”). Mr. Warren answered that such an individual could work as a call-out operator or an address clerk. R. 791.

         Following the hearing, Plaintiff underwent a neurologic consultative examination performed by Dr. Rakesh Garg on November 7, 2016. R. 1010. Dr. Garg opined that Plaintiff “has no wasting in any of the muscles in the right leg and if she has any problem with the nerve, some kind of muscle atrophy would be expected, but she has none.” Id. Dr. Garg also opined that she had normal knee and ankle reflex on both sides indicating that she did not have lumbosacral radiculitis. Id. In sum, the “neuro examination is completely normal and [Dr. Garg did] not find any focal neurological deficit indicating either a neuropathy or a lumbosacral radiculitis.” Id. Plaintiff did not require any cane or crutches. Id.

         The same ALJ again issued his written opinion denying Plaintiff's claims for disability benefits. R. 725-36. In evaluating Plaintiff's claim, the ALJ used the Social Security Administration's five-step sequential evaluation process. 20 C.F.R. § 404.1520(a). At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity during the period from her alleged onset disability date, May 1, 2007, to her date last insured, June 30, 2012. R. 727. At step two, the ALJ found that Plaintiff had the following severe impairments: complications of childbirth epidural, right knee cyst, and mild obesity. Id. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. R. 728. More specifically, the ALJ found that Plaintiff did not meet the requirements of either Listing 1.02 or 1.04. Id. With regard to his Listing 1.04 analysis, the ALJ stated that, based on a November 2016 consultative neurology examination, there were no focal neuralgic signs that would implicate neuropathy or lumbar radiculitis. Id. Given the lack of evidence concerning nerve root compression, the claimant's impairments also would not satisfy Listing 1.04A requirements.” R. 728.

         The ALJ proceeded to step four where he found that Plaintiff had an RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) except no more than occasional stooping, no climbing of ladders, ropes, or scaffolds, no crawling or kneeling, and no exposure to unprotected heights, heavy equipment, or operating machinery. R. 729. The ALJ found that Plaintiff had no past relevant work. R. 734. Finally, at step five, the ALJ found that there were a significant number of jobs in the national economy that Plaintiff could have performed. Id.

         In his decision, the ALJ reviewed several medical opinions before ultimately deciding that Plaintiff was not disabled, under the Social Security Act, at any time from May 1, 2007, the alleged onset date, to June 30, 2012, the date last insured. R. 735. The ALJ found that the medical expert, Dr. Golub, stated the Listing 1.04 requirements “might be met” from the onset date to the December 2011 consultative examination by Dr. Dumpit, but Dr. Golub “seemed to change his mind” after reviewing the June 2014 examination by Dr. Jelinek. R. 733. The ALJ found Dr. Golub's analysis to be “sound and consistent[, ]” and assigned his opinion “substantial weight, except to the extent claimant tenuously might suggest that Dr. Golub endorsed Listing Severity.” Id. The ALJ went on to state that Dr. Golub was “clear in concluding that she did not meet a Listing[.]” Id. When assessing Dr. Garg's opinion, the ALJ found that the neurologic consultative examination was unremarkable. Id. It showed no wasting in any muscles in the right leg and no clinical finding indicating neuropathy or a lumbosacral radiculitis. Id. In Dr. Garg's estimation, Plaintiff had no need for a cane. Id. The ALJ found that ambulation remained effective and that neither Listing 1.02 nor 1.04 would be met. Id. The ALJ accorded “substantial weight” to Dr. Garg's opinion minus portions of the opinion related to the RFC. R. 734. Finally, the ALJ gave Dr. Dumpit's 2011 examination “minimal weight because it is singular in nature, and superseded by other inconsistent substantial evidence.” Id.

         The ALJ also found that, when considering Plaintiff's RFC, “the objective findings in this case fail to provide strong support for the claimant's allegations of disabling symptoms and limitations.” R. 730. The ALJ stated that Plaintiff reported issues with her right knee and falling, but there was no diagnostic imaging to support this impairment. Id. Plaintiff never went to the emergency room after a fall. Id. Further, the ALJ pointed to large gaps in treatment for this impairment; Plaintiff was not seen for right leg pain from October 2007 to September 2010, the right leg was not addressed until Dr. Dumpit's October 2011 examination, and it was not addressed again until June 2014. R. 730-31. As to whether Plaintiff's impairments require her to avoid sitting down for an extended period of time or require her to elevate her leg during substantial portions of the day, the ALJ also found that Plaintiff did not use any pain medications except over-the-counter analgesics. R. 732. Further, the ALJ found that despite having medical insurance, Plaintiff had never undergone an EMG to evaluate why she was falling three times a day. Id. The ALJ finally pointed to the November 2016 consultative neurological examination that showed no abnormalities and to the lack of evidence of pain management or physical therapy treatment. R. 731.

         The ALJ found the Plaintiff to be “not consistent.” Id. The ALJ found Plaintiff's testimony that she was not using a cane because it was not recommended to her to be inconsistent with Plaintiff's October 2011 consultative examination where Dr. Dumpit did advise that a cane would be helpful. Id. Plaintiff testified that she needs to go with someone to go grocery shopping, but her function report indicated that she could shop on her own. Id. In sum, the ALJ concluded that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and ...

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