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Wasieleski v. Saul

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

August 19, 2019

RONALD W., [1] Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, [2] Defendant.

          MEMORANDUM OPINION AND ORDER

          JEFFREY I. CUMMINGS UNITED STATES MAGISTRATE JUDGE.

         Ronald W. (“Claimant”) brings a motion for summary judgment to reverse or remand the final decision of the Commissioner of Social Security denying his claim for Disability Insurance Benefits (“DIBs”). The Commissioner brings a cross-motion seeking to uphold the decision to deny benefits. The parties have consented to the jurisdiction of a 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). For the reasons that follow, Claimant's motion for summary judgment (Dkt. 17) is granted and the Commissioner's motion for summary judgment (Dkt. 24) is denied.

         I. BACKGROUND

         A. Procedural History

         On October 27, 2014, Claimant (then 48 years-old) filed for DIBs alleging disability beginning on May 14, 2014 due to chronic back pain and high blood pressure. (R. 105.) His date last insured was September 30, 2016.[3] (R. 14.) Claimant's application was denied initially and upon reconsideration. (R. 73-96, 101-05, 112-16.) Claimant filed a timely request for a hearing, which was held on October 13, 2016 before an Administrative Law Judge (“ALJ”). (R. 30-72.) Claimant appeared with counsel and offered testimony at the hearing. A vocational expert also offered testimony.

         On December 21, 2016, the ALJ issued a written decision denying Claimant's application for benefits. (R. 14-24.) Claimant filed a timely request for review with the Appeals Council. (R. 173.) On September 25, 2017, the Appeals Council denied Claimant's request for review, leaving the decision of the ALJ as the final decision of the Commissioner. (R. 1-4.) This action followed.

         B. Medical Evidence in the Administrative Record

         Claimant alleges disability due to back pain, high blood pressure, and depression. The records before the Court reveal a history of four back surgeries, the most recent in 2006, and, as explained in more detail below, a left hip replacement in January 2012 following a fall down the stairs. (R. 312-320, 462-587.) The administrative record contains the following additional medical evidence that bears on Claimant's claim:

         1. Evidence from Claimant's Treating Physicians Primary Care Physician - Dr. Dalawari

         Claimant has been under the care of internist Dr. S. Dalawari since as early as 2010. After falling down the stairs in August 2011, Claimant saw Dr. Dalawari and complained of lower back pain and left hip pain. (R. 681, 704.) An x-ray of his hip showed no fractures or other significant abnormalities. (R. 707.) Subsequent imaging of the left hip, however, showed osteoarthritis and labral degeneration with suspicion of a small tear. (R. 689.) Imaging of the lumbar spine revealed, among other things, a small disc protrusion at ¶ 3-L4 with mild to moderate central canal stenosis and moderate right foraminal stenosis at ¶ 4-L5. (R. 691-92.) Dr. Dalawari recommend physical therapy and prescribed tramadol for pain and cymbalta for depressive symptoms. (R. 677, 681, 693-95, 704.) Ultimately, Claimant was referred to an orthopedic surgeon for his continued hip and back pain, and he underwent a left hip replacement in January 2012. (R. 462-587, 679.) Following his hip replacement, Claimant continued to occasionally follow-up with Dr. Dalawari for medication management. (R. 666-70.)

         In early 2014 - - a few months prior to his alleged onset of disability - - Claimant had few complaints though he saw Dr. Dalawari every few weeks for blood pressure checks and medication management. (R. 660-65.) By that time, Dr. Dalawari had determined that Claimant had hypertension, high cholesterol, osteoarthritis of the pelvic region and spine, depressive disorder, and lumbago. (R. 660). On June 2, 2014, Claimant complained of upper chest and back pain. (R. 656-57.) A physical exam revealed normal results. (Id.) Dr. Dalawari started Claimant on medrol and naproxen for pain a few weeks later (R. 653-54), and he described Claimant's pain as thoracic spine pain on June 26, 2014. (R. 650-51.)

         A physical exam in June 2015 revealed tenderness of the thoracic spine. (R. 751-52.) By that time, Claimant had been prescribed morphine and vicodin for pain. (R. 752.) Lower back pain and tenderness were again noted in October 2015 and February 2016. (R. 754-59.) In June 2016, Claimant told Dr. Dalawari that his neurosurgeon, Dr. Trombly, recommended surgery, but that he was interested in a second opinion. (R. 780.) Dr. Dalawari referred Claimant to another neurosurgeon. (R. 782.) At his annual wellness visit a few weeks later, Claimant was feeling depressed and had little interest in doing things. (R. 775.)

         Pain Management - Dr. Elborno

         On May 31, 2013, Claimant began treatment at Midwest Academy of Pain and Spine with Dr. A. Elborno. (R. 312, 321-24.) His chief complaints were left hip and leg pain since his fall, which he described as “stabbing” and rated a 5/10. (R. 321-22.) The pain was affecting his ability to walk, stand, sit, and drive. (R. 322.) Claimant also described a history of high blood pressure, asthma, and depression. (Id.) On exam, Dr. Elborno noted tenderness and discomfort of the lumbar spine, left leg and hip, and decreased range of motion in the left hip. (R. 323-24.) Claimant exhibited similar tenderness a few days later, at which time Dr. Elborno diagnosed him with lumbar radiculopathy and post-lumbar puncture syndrome status post four back surgeries. (R. 329-30.) Dr. Elborno contemplated a repeat MRI and “possible discography at ¶ 3-L4.” (R. 330.) By June 14, 2013, Dr. Elborno had reviewed a 2007 MRI, which showed no apparent disc herniation at ¶ 3-L4. (R. 331-32.) Claimant had begun taking norco for pain. (R. 332.)

         Claimant returned to see Dr. Elborno in December 2013 and continued to complain of left hip and back pain upon sitting, standing, and walking. (R. 334-35.) Dr. Elborno informed Claimant of various treatment options, including adult stem cell therapy or a spinal cord stimulation trial. (R. 335.) Claimant continued on norco and reported no recent changes at his next appointment in January 2014. (R. 336-39.) In March 2014, Dr. Elborno assessed osteoarthritis of the hip and administered a steroid injection. (R. 342-44.) Claimant's lower back and hip pain were “well controlled” with medications in May 2014. (R. 347-48.) But, at his next appointment in June 2014, Claimant stated that his hip pain was “getting worse” with additional thoracic back pain, and that his medication was “not helping much.” (R. 353.) Dr. Elborno again contemplated a spinal cord stimulation trial, but first recommended a psychological evaluation, and further noted that “patient doesn't want to be on narcotics.” (Id.) Notwithstanding this, Dr. Elborno prescribed norco and morphine for Claimant and ordered an MRI of his thoracic spine. (R. 354.)

         In August 2014, Claimant's lower back pain was well controlled with medications and he was “doing well.” (R. 366-67.) He reported lower and upper back pain in October 2014, and Dr. Elborno assessed thoracic spondylosis and degenerative disc disease. (R. 369-70.) Claimant returned to see Dr. Elborno in April 2015, complaining of pain in his middle and lower back, aggravated by lifting, pushing, running, twisting, and walking. (R. 375.) He described his hip pain as “mild, ” but constant. Aggravating factors included walking, sitting, running and bending. (Id.) Pain relieving factors included medication and injections. (Id.) A musculoskeletal examination was normal. (R. 376.) Dr. Elborno reported Claimant was “doing well” but nonetheless directed him to continue taking norco and morphine. (R. 377.)

         Claimant followed-up with Dr. Elborno every few months throughout 2015 and into 2016, with continued complaints of back and left hip pain, which he categorized as “constant, ” “excruciating, ” and aggravated by activity. (R. 740-49.) Dr. Elborno continued Claimant on the prescribed pain medication. (Id.) Claimant returned in May 2016 and again complained of pain aggravated by sitting, standing, and movement. (R. 769.) A lumbosacral exam showed “tenderness, increased with exertion and lateral rotation bilateral with restriction and discomfort with range of motion bilaterally. Spasm [was] noted to palpation of the lumbar paraspinal areas.” (Id.) Dr. Elborno described Claimant's pain as “well-controlled on medication” in June 2016. (R. 788.) Dr. Elborno noted tenderness and spasms of the lumbosacral area in July 2016. (R. 793.) Claimant continued taking morphine and vicodin. (R. 794-95.) In September 2016, Claimant's “pain severity [was] tolerable with medications, excruciating without medications.” (R. 832.) Tenderness and discomfort upon range of motion were again noted. (Id.)

         Neurosurgeon - Dr. Trombly

         After he had been examined by the state agency's consultants (infra, at pages 8-9), Claimant - - upon Dr. Dalawari's referral - - saw neurosurgeon Dr. R. Trombly on July 30, 2015 for his continued back pain between his shoulders down to the lower back. (R. 729.) Claimant told Dr. Trombly that he was doing “pretty well” after his hip replacement until May 2014 when he began having constant pain in his back. (Id.) He further reported he had been out of work since May 2014 due to back pain. (Id.) Upon examination, Claimant exhibited a slightly kyphotic (or rounded) posture. (R. 730.) Dr. Trombly reviewed an MRI of the thoracic spine from September 2014, which showed “no compression with mild kyphosis most pronounced in lower thoracic region.” (Id.) Dr. Trombly assessed mechanical back pain and recommended physical therapy, posture training, and a CT of the lumbar spine if the pain continued. (Id.)

         As of October 20, 2015, Claimant had not started physical therapy due to insurance reasons. (R. 732.) He told Dr. Trombly he continued to have constant 4/10 sharp pain in his mid-back, which increased to 10/10 with activity. (Id.) His back pain was relieved upon laying down and aggravated by sitting and physical activity. (R. 732.) A physical exam was normal. (R. 732-33.) Dr. Trombly reviewed the recent lumbar CT scan and noted postoperative and degenerative changes in the lumbar spine. (R. 733.) He assessed lumbar degenerative disc disease, lumbar spondylosis, and thoracic spondylosis with radiculopathy. (Id.) Dr. Trombly recommended further imaging, a trial of epidural injections, and, if pain persists, a L3-S1 laminectomy.[4] (Id.) Claimant's pain was “the same” in January 2016 and was limiting his activities to “1-2 hours max then [he] has to sit.” (R. 735.) The physical exam was normal apart from Claimant's continued rounded posture. (R. 735-36.) Updated imaging showed mild degenerative changes in the thoracic spine. (R. 736.) Dr. Trombly again ordered more imaging and physical therapy. (Id.)

         In May 2016, Claimant reported minimal relief from his pain medications and said that he could not “walk even several blocks” or stand for prolonged periods. (R. 783.) Dr. Trombly planned to review recent CT images and then consider a “revision L3-S1 decompression.” (Id.) By October 2016, Dr. Trombly reviewed the CT scans, which showed mild foraminal stenosis of the lumbar spine and severe foraminal stenosis of the thoracic spine. (R. 835.) Dr. Trombly again assessed thoracic spondylosis with radiculopathy and stated that Claimant may need injections or a thoracic laminectomy to decompress thoracic nerve roots. (Id.)

         Psychological Assessment ...


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