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Daniel S. v. Saul

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

July 31, 2019

DANIEL S., Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant.


          Sidney I. Schenkier United States Magistrate Judge

         Plaintiff, Daniel S., moves for reversal and remand of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability benefits (doc. #16; Pl's Mot. For Summ. J., doc. # 17: Pl's Mem.). The Commissioner has filed a response brief, asking this Court to affirm the Commissioner's decision (doc. # 22: Def.'s Resp.). Plaintiff has filed his reply (doc. # 23). The matter is fully briefed. For the following reasons, we grant Mr. S.'s motion and remand the case.


         Mr. S. applied for disability insurance benefits ("DIB") on May 29, 2014, alleging an onset date of January 1, 2011 (R. 28, 163). The ALJ made a finding that Mr. S.'s date last insured was March 31, 2017 (R. 28).[2] Mr. S.'s claim and subsequent appeal for reconsideration were both denied (R. 105, 111). Shortly thereafter, Mr. S. filed a written request for a hearing in front of an Administrative Law Judge ("ALJ") (R. 117). Mr. S. and a Vocational Expert ("VE") testified at the hearing held on October 31, 2016 (R. 45). On January 31, 2017, the ALJ issued a decision denying Mr. S.'s claim for benefits (R. 28). The Appeals Council declined to review the ALJ's decision, making it the final word from the Commissioner (R. 1-4). See Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015); 20 C.F.R. § 404.981.


         Mr. S. was born on February 11, 1964 (R. 46). For 10 years prior to his alleged onset date of January 1, 2011, Mr. S. worked for the State of Illinois as a home health care professional (R. 48, 90). Following his employment with the state, Mr. S. worked in a limited capacity as a custodian for the American Legion (R. 51, 90). Mr. S.'s earnings after the alleged onset date did not meet the necessary threshold requirements to constitute substantial gainful activity ("SGA") (R. 187). Mr. S. contends that he has both disabling mental and physical impairments; however, we focus on his physical impairments because the ALJ's treatment of those impairments forms the basis of our decision in this case.[3]


         Mr. S. has been receiving treatment for various maladies from Dr. Raymond Weiss since at least 2010[4] (R. 295). Specifically, Dr. Weiss has treated Mr. S. for diabetes mellitus[5] and lumbar spine pain, and has provided him referrals to other practitioners for his persistent knee and elbow pain (R. 280-82, 304-16, 517, 530). On October 26, 2012, Mr. S. visited Dr. Weiss with lower back pain and was prescribed a Medrol Dosepack (R. 280).[6] Mr. S. returned to Dr. Weiss with complaints of lower back pain in August 2014, after falling at work while lifting heavy objects (R. 347).[7] Dr. Weiss referred Mr. S. to physical therapy for treatment (R. 349).

         In mid-August 2014, Mr. S. attended the first of several physical therapy sessions (R. 352). At the session, Jake Tan, PT, noted Mr. S. had issues with carrying, moving, and handling objects due to pain in the lower and middle back (R. 352). Subsequent sessions showed that while Mr. S.'s pain and stiffness in his lower back decreased, he still had trouble bending and lifting (R. 355-56). Mr. S. continued physical therapy until December 2014. Mr. S. complained that his back pain was not improving and that the use of a lumbar brace while at work made no difference (R. 407). Furthermore, Mr. S. explained that although he felt better after therapy, the pain would come back and get worse at work despite his efforts to take breaks (R. 406).

         In October 2014, Mr. S. was examined by Dr. Pimentel, a consultative examiner for the agency, who determined that Mr. S.'s ability to lift, carry or handle objects was mildly impaired due to lumbosacral back pain and that his ability to carry out work-related activities was also mildly impaired due to that pain (R. 383). Dr. Pimentel stated that Mr. S. was limited by 10 degrees from normal in flexion to the floor in the lumbar spine and in the cervical rotation to the left and right (R. 384). Dr. Pimentel also stated that Mr. S. could walk greater than 50 feet unassisted with normal gait and had mild difficulty in squatting and rising and hopping on one leg (R. 383-85).

         In early November 2014, state agency examiner Henry Rohs, M.D., reviewed Mr. S.'s record and found severe impairments of spinal disorders and diabetes mellitus (R. 88). Dr. Rohs also opined that Mr. S. had mildly reduced range of motion and poorly controlled diabetes (R. 89). Dr. Rohs concluded that Mr. S. possessed medium work capability and was not disabled (R. 91).[8]In May 2015, Mr. S. sought reconsideration of his disability claim (R. 94). State agency examiner, Roy C. Brown, M.D., concurred with Dr. Rohs and affirmed that Mr. S. was capable of medium work and thus was not disabled (R. 102).

         In December 2014, Mr. S. visited Dr. Weiss with complaints of back pain and pain in his right knee with ambulation (R. 529-30). Dr. Weiss suggested a plan of pain management for lower back pain and offered referrals to an orthopedist for knee pain (R. 530). On March 31, 2015, Dr. Weiss noted that Mr. S.'s gait and stance were normal and that he retained normal movement of all extremities but still had pain in his knees and lower back (R. 528).

         In late April 2015, Mr. S. sought treatment for his persistent knee pain and was referred to Dr. Makda, an orthopedic surgeon (R. 502). On initial examination, Dr. Makda noted that Mr. S. had swelling in both knees and that these symptoms had persisted despite conservative management (R. 505-06). An x-ray of both knees provided no evidence of arthritis, fracture or dislocation (Id.). In May 2015, Mr. S. underwent an MRI of his left knee (R. 567). Dr. Makda opined that the pain was likely due to fibrocystic degenerative changes with adjacent degenerative marrow edema (R. 568).[9] An MRI of the right knee performed several days later found "no evidence of periarticular soft tissue swelling or joint effusion" (R. 565).

         On July 7, 2015, Dr. Weiss completed a Physical Residual Functional Capacity Questionnaire ("RFC Questionnaire"). Dr. Weiss provided a prognosis of "fair" and indicated that Mr. S. could sit for one hour at a time and stand for an hour and 15 minutes at one time (R. 594). In addition, Mr. S. could sit for less than two hours and stand/walk for about four hours total in an eight-hour working day if provided extra breaks (R. 595). Dr. Weiss opined that Mr. S. could "rarely" lift and carry 20 lbs, 10 lbs, or less than 10 lbs in a competitive work situation (Id.). Furthermore, Dr. Weiss opined that Mr. S. would likely be absent from work for more than four days per month (R.595-96). Dr. Weiss indicated that Mr. S.'s pain would frequently interfere with the attention and concentration needed to perform simple work tasks, and that humidity and wetness would exacerbate the pain (Id.).

         In December 2015, Mr. S. received a cortisone injection from Dr. Makda to alleviate pain from lateral epicondylitis in his left elbow and was advised to wear an armband (R. 517).[10] In May 2016, Mr. S., on referral from Dr. Weiss, visited Craig Shouse, DPM, to have a diabetic foot screening. Dr. Shouse opined that Mr. S. had symptoms consistent with diabetic neuropathy[11] (R. 499).

         On May 18, 2016 Mr. S. received MRIs of his lumbar spine regarding recurrent lower back pain and of his elbows regarding bilateral elbow pain (R. 542-43). The MRI revealed moderate to severe degenerative changes of the lumbar spine at L5-S1 (R. 542), but no evidence of elbow effusion, fracture or dislocation (R. 543).

         In July 2016, Mr. S. again followed up with Dr. Weiss with complaints of pain in his knees, feet, elbows and back (R. 491, 493). Dr. Weiss suggested treatment of "disc diet and exercise" and a follow up in three months (R. 494).

         On October 28, 2016, Dr. Weiss filled out a Medical Source Statement of Ability to Do Work-Related Activities ("Medical Source Statement") and indicated that Mr. S. could sit for between 0-2 hours during an eight-hour workday, stand/walk for 1 hour during an eight-hour workday and would need to alternate between sitting and standing every 15 minutes while on the job to relieve pain and discomfort (R. 601). Additionally, Dr. Weiss found that Mr. S. could rarely lift less than 10 lbs, occasionally lift 10 lbs, could never push or pull and was limited to rarely performing various manipulative activities (reaching all directions, handling, fingering, feeling) (Id.). Dr. Weiss also stated that Mr. S.'s pain would occasionally interfere with his concentration to perform work tasks, that several environmental limiting conditions must be ...

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