United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JEFFREY CUMMINGS, UNITED STATES MAGISTRATE JUDGE
William A. (“Claimant”) brings a motion for summary
judgment to reverse the final decision of the Commissioner of
Social Security (âCommissionerâ) that denied Claimant's
claim for a period of disability and Disability Insurance
Benefits (âDIBsâ) under 42 U.S.C. Â§Â§ 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. Â§ 636(c). This
Court has jurisdiction to hear this matter pursuant to 42
U.S.C. Â§Â§ 405(g) and 138(c)(3). For the reasons stated below,
Claimant's motion for summary judgment  is granted
and the Commissioner's motion for summary judgment 
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. (Tr. 1-10).
Claimant subsequently filed this action in District Court.
Evidence from Claimant's Treatment History
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).
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).
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).
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.
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).
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.
Evidence from State-Agency Doctors
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).
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. Dr. Biale diagnosed Claimant with low
back pain and a painful right hip. (R. 810-12).
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).
Evidence From Claimant's Testimony
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.”
The ALJ's Decision
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. 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).
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).
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).
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).
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).