United States District Court, N.D. Illinois, Eastern Division
FINNEGAN UNITED STATES MAGISTRATE JUDGE
David E. filed this action seeking review of the final
decision of the Defendant Commissioner of Social Security
(the “Commissioner”) denying his claim for
Disability Insurance Benefits (“DIB”) and
supplemental security income (“SSI”) under Titles
II and XVI of the Social Security Act. (Doc. 1). The parties
consented to the jurisdiction of a United States Magistrate
Judge pursuant to 28 U.S.C. Â§ 636(c), and the case was
reassigned to this Court. (Docs. 5, 8). Plaintiff has now
filed a brief requesting that the Commissioner's decision
be reversed and the case be remanded for further proceedings
(Doc. 15), and the Commissioner has responded with a Motion
for Summary judgment requesting that the decision be
affirmed. (Doc. 24). After reviewing the record and the
parties' respective arguments, the Court concludes that
the case must be remanded for further proceedings as outlined
below. The Court therefore denies the Commissioner's
motion for summary judgment and grants Plaintiff's
request for remand.
filed his DIB and SSI applications on April 30, 2015,
alleging disability beginning on October 28, 2012 (following
a car accident that day) due to severe arthritis and pain in
both hips, avascular necrosis or “AVN” (death of
bone tissue caused by a lack of blood supply) in the right
hip, no blood circulating in the right hip, pain in both
legs, inability to bend over and stand up straight without
help, lower back pain, headaches, memory loss, and
depression. (R. 95-96, 106-07, 117-18). Plaintiff was 36
years old on his alleged onset date (R. 54, 95, 106), which
is defined as a younger individual age 18-44. 20 C.F.R.
§ 404.1563. His date last insured is March 31, 2016.
and SSI applications were denied initially on October 19,
2015 (R. 117-18), and on reconsideration on February 9, 2016
(R. 153-54). Plaintiff then requested a hearing (R. 171-72),
which was later held before Administrative Law Judge
(“ALJ”) Bill Laskaris on December 14, 2016, where
Plaintiff was represented by counsel. (R. 62). Both Plaintiff
and Vocational Expert (“VE”) Kathleen Dayla
testified at the hearing. (R. 63). The ALJ denied
Plaintiff's claims in a decision dated March 6, 2017 (R.
42-56), finding Plaintiff has an RFC to perform sedentary
work as described to the VE with certain restrictions (R.
48-49) and could perform various jobs that existed in
significant numbers in the national economy. (R. 55).
sought review with the Appeals Council, but that request was
denied on December 6, 2017 (R. 1-7), rendering the ALJ's
March 2017 decision the final decision of the Commissioner
reviewable by this Court. Shauger v. Astrue, 675
F.3d 690, 695 (7th Cir. 2012). Plaintiff now makes the
following arguments for reversal: (1) the ALJ's RFC
determination is not supported by substantial evidence, (2)
his subjective symptom analysis was erroneous, and (3) his
conclusion regarding jobs in the national economy that
Plaintiff was able to perform was also unsupported. As
explained below, the Court partially agrees with the first
two arguments and rejects the third.
Work History and October 28, 2012 Accident
completed two years of college (R. 247), and worked in
various positions in the years before the October 28, 2012
car accident and alleged onset of his disability: janitorial
custodian (February to December 2007); technician for phone
company (February to August 2008); field technician for cable
company (September 2008 to April 2010); and temporary
maintenance employee (September to December 2010). (R. 248,
254). The record indicates no work in 2011 or in the 10
months of 2012 preceding the accident. (Id.).
claimed and testified in the proceedings below that his
impairments and related pain have persisted since he
sustained a brain hemorrhage and cervical spine fracture in
the automobile accident on October 28, 2012, after which he
was hospitalized in an induced coma for about a week and
hospitalized for about six weeks. (R. 71, 335, 414, 417).
Plaintiff did not work again until March 2014 when he held a
position at Home Depot where he worked nights cleaning,
stocking, and reorganizing a garden center. (R. 70, 248,
254). Plaintiff also claimed and testified in the proceedings
below that he attempted to maintain gainful employment after
the accident in order to meet his financial needs, but it was
difficult for him to perform required tasks due to painful
movement, and he ultimately quit his Home Depot job in July
2014 because he was in too much pain to continue. (R. 71-73,
253-54). Plaintiff also stated that he attempted to find
other work afterward and interviewed for two customer service
jobs, but he was unable to qualify for their physical
requirements and was not hired. (Id.). None of his
work after the alleged onset date of October 28, 2012
amounted to substantial gainful activity. (R. 44).
AVN Diagnosis and Initial Treatment
Plaintiff traces his hip pain back to his October 2012 car
accident, his earliest treatment notes are from a Cook County
Hospital Emergency Department (“ED”) visit on
November 7, 2013, when Plaintiff complained of right hip pain
of 5 on a scale of 1 to 10 for the previous two weeks, worse
with walking and relieved by rest. (R. 343). He was diagnosed
with a hip sprain and directed to take ibuprofen as needed
and return to the ED if the pain worsened. (R. 345-46).
Plaintiff twice followed up with Dr. Earl Fredrick of the
Christian Community Health Center (“CCHC”) in
March 2014, complaining of daily right hip pain for the
previous year and was directed to take ibuprofen three times
daily. (R. 366, 369). Plaintiff then returned to the Cook
County ED on May 12, 2014, complaining of pain in his back
and right hip, and an AP x-ray revealed moderate narrowing of
both hip joints and sclerosis (stiffening) of both acetabulum
(hipbone sockets). (R. 347, 350).
continued treatment with Dr. Fredrick and Dr. Carl Vancol
(also of CCHC) from August to October 2014, during which he
complained of persistent bilateral hip and lower back pain,
up to 7 on a scale of 1 to 10, sometimes severe enough to
wake him up at night. (R. 354-65). Dr. Vancol prescribed
Tramadol and Flexeril and ordered MRIs of Plaintiff's
hips and lumbar spine (id.), which were done on
September 29, 2014. (R. 372-75). The MRI of Plaintiff's
lumbar spine revealed only mild degenerative changes (R.
373), but the MRI of Plaintiff's hips indicated that they
were “relatively symmetrically abnormal” and
“most suggestive of avascular necrosis.” (R.
374). That diagnosis was later confirmed on March 19, 2015,
following another MRI the same day that also revealed
bilateral hip AVN slightly more pronounced on the right. (R.
402-03). At the time of this diagnosis, Plaintiff was
reporting greater pain with activities and standing and
sitting for long periods of time. (Id.). He was
advised this condition would “most likely worsen,
” and referred for bilateral hip injections.
Referrals for Surgery
received injections in both hips on March 24, 2015, and was
advised that additional injections could be attempted in six
weeks if he experienced moderate symptomatic relief. (R.
395-400). But during his follow-up visit on June 22, 2015,
Plaintiff reported that the injections had provided only
short-term relief and anti-inflammatories provided no relief
at all, and he was observed to have “obvious bilateral
limps, slightly more pronounced on the right.” (R.
392). Given these results, Plaintiff decided to proceed with
a total hip arthroplasty (bilateral hip replacement) at Cook
County Stroger Hospital and was meanwhile administered
another set of hip injections to address his “severe
bilateral hip pain secondary to AVN” while he awaited
surgery. (R. 388, 392). But on August 7, 2015, shortly before
the surgery was to take place, Plaintiff's doctor
cancelled the procedure after consulting with the
anesthesiologist because Plaintiff had an upper respiratory
infection and his urine had tested positive for cocaine. (R.
was again cleared for surgery on August 26, 2015, but given
no definite date for it. (R. 426-28, 438). He then visited
Cook County's ED on September 11, 2015, complaining of
constant, severe pain in both hips, for which he was
prescribed a short course of Norco and directed to follow up
with the Orthopedic and Primary Care Clinics. (R. 436-40).
During a follow-up appointment in the Ortho Clinic three days
later, Plaintiff requested additional pain medications and a
new surgery date, after reporting worsening pain in both
hips, difficulty walking and sitting for extended periods,
climbing stairs, and bending to put on socks or tie shoes.
(R. 448-49). But Plaintiff was advised that no more Norco
could be prescribed, no surgery dates were available, and he
should return in six weeks to inquire about a possible new
surgery date or request his records to take to another
hospital if he wanted to have the surgery elsewhere.
(Id.). Plaintiff did return six weeks later (on
October 26, 2015), and was again observed limping and now
walking with a cane. (R. 451-52). But Plaintiff was then told
that he had been placed at the bottom of a waiting list for a
new surgery date due to the previous cancellation and no new
surgery date would be available before March 2016. (R. 451).
He was also referred for physical therapy and to a pain
clinic, because ibuprofen was not controlling his pain.
during this time (and following applications for DIB and SSI
on April 30, 2015), Plaintiff underwent a psychological
consultative examination with Dr. Jeffrey Karr on September
17, 2015, and a medical consultative examination with Dr.
Dante Pimentel on October 9, 2015. (R. 414-23). During the
medical exam, Plaintiff reported daily bilateral hip pain of
8 on a scale of 1 to 10, that he could stand for only 20
minutes due to pain, and difficulty navigating up and down
stairs. (R. 417). Plaintiff also reported difficulty walking
distances (id.), and Dr. Pimentel observed that he
walked with a slight right-sided limp. (R. 419). Dr. Pimentel
also noted that Plaintiff walked with the aid of a cane (R.
422), though he could walk greater than fifty feet
unassisted, albeit with a slightly abnormal gait. (R. 419).
During the psychological examination, Dr. Karr similarly
noted that Plaintiff carried a cane but could walk briefly
without it. (R. 415).
directed, Plaintiff again sought a new surgery date at
Stroger Hospital on March 7, 2016. (R. 493). He was again
walking with a cane and now had reduced hip rotation
bilaterally due to pain (25 degrees external rotation and 0
degrees internal rotation). (R. 491-93). Pelvis x-rays
obtained that day showed joint space narrowing and changes
consistent with progressive bilateral AVN now more severe on
the left side, along with possible bony cyst formulation.
(Id.). Plaintiff reported that he had been following
up with the pain clinic, and that his pain was fairly well
managed with medications, but he still wanted hip replacement
surgery. (Id.). Once again, however, no surgery date
was provided, and Plaintiff was told that no date would be
provided until the hospital was able to put him back on its
surgery schedule. (R. 493). The same transpired again six
months later in September 2016: x-rays again showed bilateral
AVN and joint space narrowing more pronounced on the left
side, but no surgery date was provided, and it was now
explained that elected surgeries were largely backlogged due
to the high volume of trauma surgeries, and that Plaintiff
should follow up in another six months about a possible
surgery date. (R. 472-74). Three months later on December 1,
2016, Plaintiff reported his pain was severe and constant (R.
454), and he was again referred to physical therapy and
Orthopedic Surgery. (R. 456, 462).
Hearing Before the ALJ
December 14, 2016, Plaintiff appeared with counsel at a
hearing before ALJ Laskaris (R. 62). Plaintiff testified that
all of his hip pain started after his 2012 car accident (R.
71), and as of the hearing, he had pain of 8 ½ on a
scale of 1 to 10 in both hips, his lower back, thighs, and
knees, which ibuprofen did not help at all, and which kept
him up at night. (R. 74-79). He said he had problems standing
too long, sitting longer than 15-20 minutes, and getting in
and out of a car, and that he alternated sitting and standing
to alleviate pain. (R. 78, 83-84). Plaintiff also stated that
he could walk only about half a block and needed his cane to
stand up, to walk, and for balance, and that he was afraid of
failing without it. (R. 74, 79, 83). Regarding his surgery,
Plaintiff explained that he had tried repeatedly to
reschedule it after the first cancellation at Stroger