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William A. v. Saul

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

August 16, 2019

WILLIAM A., Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          HON. JEFFREY CUMMINGS, UNITED STATES MAGISTRATE JUDGE

         Claimant William A. (“Claimant”)[1] brings a motion for summary judgment to reverse the final decision of the Commissioner of Social Security (“Commissioner”) that denied Claimant's claim for a period of disability and Disability Insurance Benefits (“DIBs”) under 42 U.S.C. §§ 416(i) and 423(d) of the Social Security Act. The Commissioner has brought a cross-motion for summary judgment seeking to uphold the Social Security Agency's decision to deny benefits. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). This Court has jurisdiction to hear this matter pursuant to 42 U.S.C. §§ 405(g) and 138(c)(3). For the reasons stated below, Claimant's motion for summary judgment [22] is granted and the Commissioner's motion for summary judgment [26] is denied.

         I. BACKGROUND

         A. Procedural History

         On January 4, 2015, Claimant filed a Title II application alleging a disability onset date of February 25, 2013. (R. 131). His claim was denied initially on July 17, 2015 and upon reconsideration on December 9, 2015. (R. 131). On December 16, 2016, an Administrative Law Judge (“ALJ”) issued a written decision denying benefits to Claimant. (R. 133-57). The Appeals Council granted review on limited grounds and issued its own decision on February 12, 2018, making the Appeals Council's decision the Commissioner's final decision.[2] (Tr. 1-10). Claimant subsequently filed this action in District Court.

         B. Medical Evidence

         1. Evidence from Claimant's Treatment History

         Claimant was injured on February 25, 2013 after lifting a box at work that weighed 100 pounds. He started physical therapy in March 2013 and an April 11, 2013 MRI showed mild disc desiccation at ¶ 3-L4 and L2-L3 with diffuse disc bulging. There was subtle bulging at ¶ 4-L5 and a subtle annular tear at ¶ 5-S1. (R. 393). Claimant was discharged from physical therapy on April 12, 2013, when he reported less pain and a 40 percent improvement in his condition. (R. 435).

         Because Claimant's injury was work-related, he was referred on April 26, 2013 for a workers compensation evaluation by orthopedist Dr. Beth Froese. She diagnosed lumbar strain, lumbar disc degeneration, and an annular tear at ¶ 5-S1. Dr. Froese prescribed the muscle relaxant Skelaxin and returned Claimant to light duty work as of the date of the exam. (R. 440). Dr. Froese continued the Skelaxin at the next exam on May 20, 2013 and recommended an epidural injection if the pain continued. (R. 443). Dr. Froese noted on July 22, 2013 that Claimant had refused to take the Skelaxin because he thought it might be addictive. He showed full strength with negative straight leg raising though some limitation was noted in his hip rotation. Dr. Froese stated that Claimant could return to full-duty work based on his lumbar MRI imaging. (R. 449-50).

         Claimant had already sought a consultation with orthopedist Dr. David Fardon on July 9, 2013. Claimant told Dr. Fardon that his condition had improved but he was not ready to return to heavy-duty work. Dr. Fardon noted mild tenderness in the spine with no palpable abnormality. A hip x-ray showed a mild femoral impingement on the left hip with some degenerative lumbar spine changes. Dr. Fardon concluded that Claimant needed the care of a hip specialist because his pain was stemming more from Claimant's hip than from his lumbar spine. (R. 689-90). On Dr. Fardon's recommendation, Claimant sought treatment on August 9, 2013 from hip specialist Dr. Charles Bush-Joseph. Dr. Bush-Joseph noted that Claimant's x-rays showed moderate to severe osteoarthritis in the hips with the right worse than the left and a longstanding impingent. He also diagnosed low back strain “with probable radicular pain.” (R. 687). Contrary to Dr. Fardon, Dr. Bush-Joseph concluded that most of Claimant current pain resulted from the lumbar spine instead of the hips due to the radicular pain. He recommended an epidural injection. (R. 687).

         On September 6, 2013, Claimant sought additional treatment from Dr. Burt Schell. Claimant described his pain as sharp and throbbing but did not show any radicular pain. Dr. Schell diagnosed lumbar strain with pre-existing degenerative hip arthritis. Like Dr Bush-Joseph, Dr. Schell did not believe that Claimant's pain stemmed from the hips but rather from his work-related lumbar strain. Dr. Schell stated that no injection would be helpful and released Claimant to his work because he had “reached maximum medical improvement.” (R. 551-52). Claimant did not return to work, however, and on October 15, 2013 Dr. Fardon recommended that he begin a work conditioning program to help him do so. Claimant began the program but quit after one week when his condition became worse. He began the program again in January 2014 and was successfully discharged from it in April 2014. (R. 695-96).

         After a period of non-treatment, Claimant initiated treatment with Dr. Facundo Dovale on May 28, 2015 complaining of severe hip pain that had increased since he last saw Dr. Bush-Joseph. Claimant received a hip injection in June 2015 that relieved his pain for a week, after which it again returned. (R. 833). Dr. Dovale stated he would refer Claimant for surgery but Claimant told him on July 16, 2015 that he had not been able to follow up with a hip surgeon because his workers compensation case was still open regarding his back pain instead of non-work related hip pain. (R. 834). Dr. Dovale then prescribed a cane on August 10, 2015. (R. 980).

         Although the record is unclear on the date, Claimant was subsequently recommended by Dr. Dovale for a total hip replacement. He was also referred to psychologist Dr. Karla Ivankovich for a psychological evaluation due to anxiety about the procedure. Dr. Ivankovich wrote Dr. Dovale on October 12, 2015, recommending that Claimant undergo psychotherapy and take anti-anxiety medication to make him a better candidate for surgery. (R. 870). The final entry in the record - a September 15, 2016 note from a Dr. Morgan - states that Claimant had been cleared for a total hip replacement. (R. 982).

         2. Evidence from State-Agency Doctors

         On June 16, 2015, Dr. Yacob Gawo issued an opinion for the Social Security Administration. Dr. Gawo concluded that Claimant could frequently lift ten pounds and occasionally lift 20 pounds; could stand or walk for four hours during a normal workday; and could sit for six hours. (R. 104). Claimant could occasionally climb ramps and stairs, kneel, crouch, and crawl but he could never climb ladders, ropes, or scaffolds. (R. 105). Dr. Co Vuong agreed with that assessment on reconsideration on November 10, 2015. (R. 117). Dr. David Biscardi issued a mental assessment of Claimant on October 6, 2015, concluding that Claimant's affective and anxiety disorder were not severe. (R. 119).

         On May 1, 2015, Dr. Peter Biale conduced an internal medicine examination of Claimant. Dr. Biale noticed a full range of motion of Claimant's spine but with some limitation in the lumbosacral region. Claimant showed a positive straight leg raise at ten degrees.[3] Dr. Biale diagnosed Claimant with low back pain and a painful right hip. (R. 810-12).

         Claimant was also examined by psychologist Dr. Mark Langgut on November 9, 2015. Claimant reported that he had been dealing with depression and anxiety his whole life but that his symptoms had increased since his 2015 injury. Dr. Langgut noted that Claimant was currently taking Cymbalta, Lorazepam, and Alprazolam for his mental distress as well as other medications for pain. He was able to remember six digits forward and three backward and demonstrated adequate short-term memory. Dr. Langgut determined that Claimant showed average thought coherence, speed, and suggestibility, and he diagnosed Claimant with mild to moderate depression and a generalized anxiety disorder. (R. 853-56).

         C. Evidence From Claimant's Testimony

         Claimant appeared at an administrative hearing held on September 29, 2016. He told the ALJ that the pain in his lower back and hips only allowed him to sit for 30 minutes before he has to get up and move around for 15 minutes. (R. 48, 63). He needs to alternate sitting and standing throughout the day and also needs to lie down frequently. (R. 48-49). Claimant can only walk for 25 feet at a time and can stand for only 15 minutes. (R. 64). Getting in or out of a car or a bathtub necessitates that Claimant manually lift his leg. (R. 49, 60). Claimant's pain can require him to seek help from his wife to dress or put on shoes. (R. 59). He can only sleep between four and five hours a night due to pain and wakes up unrefreshed. (R. 60). Claimant further testified that his pain makes him feel isolated and depressed. (R. 61, “And it's just become just very, very depressing”). A normal day for Claimant includes sitting down for 15 to 20 minutes after he wakes up, eating breakfast, then needing to lie down again around noon. (R. 51). The pain medication that Claimant takes exacerbates his need to lie down and makes him “very unfocused.” (R. 62).

         D. The ALJ's Decision

         On December 16, 2016 the ALJ issued a decision finding that Claimant was not disabled. Applying the five-step sequential analysis that governs disability decisions, the ALJ found at Step 1 that Claimant had not engaged in substantial gainful activity since his alleged onset date of February 25, 2013. Claimant's severe impairments at Step 2 were spine disorders, fracture of a lower limb, bilateral hip osteoarthritis, an affective disorder, and an anxiety disorder. (R. 133). None of these impairments met or medically equaled a listing at Step 3 either singly or in combination. The ALJ applied the “special technique” that was formerly set out in 20 C.F.R. § 404.1520a to evaluate the severity of a claimant's mental impairment.[4] He determined that Claimant had mild restrictions in his activities of daily living (“ADLs”) and social functioning and a moderate limitation in concentration, pace, or persistence. Claimant had experienced no episodes of decompensation. (R. 134-35).

         Before moving to Step 4, the ALJ evaluated Claimant's testimony about his symptoms, finding that it was not entirely consistent with the objective medical evidence and other evidence in the record. (R. 137). The ALJ also assigned weights to some of the reports issued by medical experts concerning Claimant's condition. He gave great weight to the findings issued by internal medicine expert Dr. Peter Biale. (R. 140-41). Great weight was also given to the psychological report of Dr. Langgut. (R. 145). By contrast, the ALJ assigned “some” weight to Dr. Ivankovich's psychological report. Great weight was given to the state-agency medical consultants who evaluated Claimant's physical condition. However, little weight was given to the state-agency psychological experts. (R. 146-47).

         Based on these findings, the ALJ issued two separate residual functional capacity (“RFC”) assessments concerning Claimant's ability to work. For the period of February 25, 2013 through August 9, 2015, the ALJ concluded that Claimant could carry out light work as that exertional capacity is defined under 20 C.F.R. § 404.1567(b). He could stand or walk for four hours in a normal workday but would need a sit/stand option that permitted him to sit or stand “at least one to two times per hour while remaining on task 90 percent of the day.” (R. 136). In addition to various other limitations, Claimant would also be restricted to “simple, routine, and repetitive tasks.” (R. 136).

         For the period after August 10, 2015 - when a cane was prescribed for Claimant - the ALJ found that he could only perform sedentary work as defined under 20 C.F.R. § 404.1567(a). Claimant would need the same sit/stand option that was included in the first RFC and would again be required to be on task 90 percent of the day. However, Claimant would also be allowed to stand and stretch two times each hour “for a brief period.” The ALJ self-contradictorily stated that Claimant would be restricted to “simple and detailed tasks” but the Appeals Council later revised that to read “simple, routine and repetitive tasks.” (R. 8, 144) (emphasis added).

         Based on the testimony of a vocational expert (“VE”), the ALJ found at Step 4 that neither of these RFC assessments would permit Claimant to perform his past relevant work as a route driver, janitor, can sorter, or warehouse worker. The VE testified that jobs existed in the national economy that a person with either of Claimant's RFC assessments could perform. Accordingly, the ALJ determined at Step 5 that Claimant was not disabled either from February 25, 2013 through August 9, 2015 or from August 10, 2015 through the date of the decision on December 16, 2016. (R. 144, 148).

         II. ...


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