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David E. v. Saul

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

August 27, 2019

David E., Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant.



         Plaintiff 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. § 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.


         I. Procedural History

         Plaintiff 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).[2] 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.[3] His date last insured is March 31, 2016. (R. 242).

         The DIB 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).

         Plaintiff 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.

         II. Work History and October 28, 2012 Accident

         Plaintiff 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.).

         Plaintiff 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).

         III. Medical History

         A. AVN Diagnosis and Initial Treatment

         Although 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).

         Plaintiff 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. (Id.).

         B. Referrals for Surgery

         Plaintiff 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. 409, 438).

         Plaintiff 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. (Id.).

         Also 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).

         As 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).

         IV. Hearing Before the ALJ

         On 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 ...

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