United States District Court, N.D. Illinois, Western Division
Jolene C. Plaintiff,
Andrew Marshall Saul, Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
A. JENSEN, UNITED STATES MAGISTRATE JUDGE
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
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.
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.
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.
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. 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.”
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
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.
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.
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.
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
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.
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.
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 ...