Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jason B. v. Saul

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

October 8, 2019

JASON B., Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Sunil R. Harjani, United States Magistrate Judge.

         Plaintiff Jason B.[1] seeks reversal of the final decision of the Commissioner of Social Security, determining that he experienced medical improvement and that his disability ended on July 13, 2009. The Commissioner asks the Court to uphold the ALJ's decision. Because substantial evidence does not support the ALJ's mental RFC determination after the closed period of disability, the Court reverses the ALJ's decision on this ground and grants in part and denies in part Plaintiff's Motion for Summary Judgment [20].

         BACKGROUND

         Jason applied for disability insurance benefits alleging that he had become disabled on November 5, 2007, following an on-the-job back injury that resulted in a three-level spinal fusion surgery. He alleged disability based on lower back injury with failed back fusion, depression, and memory problems. At the time of the alleged disability onset date, Jason was 32 years old and had previously worked as a heavy delivery truck driver. His application was denied initially and on reconsideration. (R. 66-67, 73-8, 82). Following a hearing at which a vocational expert (“VE”) testified, the ALJ issued a decision concluding that Jason had the residual functional capacity (“RFC”) to perform a range of light work, and ultimately finding that Jason was not disabled. Id. at 24-41, 42-65. After the Appeals Council declined to review the ALJ's decision, Jason sought judicial review of the agency's decision. Id. at 9-14.

         On May 5, 2014, Magistrate Judge Jeffrey Cole reversed and remanded the case to the Commissioner for further proceedings, finding that the ALJ erred in relying on the state agency physician's report. (R. 1241-47). On September 2, 2014, the Appeals Council vacated the final decision of the Commissioner and remanded the case to an ALJ “for further proceedings consistent with the order of the court.” Id. at 1257. The Appeals Council instructed the ALJ to “offer the claimant the opportunity for a hearing, take any further action needed to complete the administrative record and issue a new decision.” Id. at 1258.[2] On March 25, 2015, the same ALJ held a second hearing. (R. 1172-1215). Jason, represented by counsel, testified at this hearing in addition to Dr. Michael Cremerius, a psychological expert, Dr. Ashok Jilhewar, a physician medical expert (ME), and Cheryl Hoiseth, a vocational expert (VE). Id.

         On July 31, 2015, the ALJ issued a partially favorable decision. (R. 1144-63). She first applied the required five-step evaluation process. 20 C.F.R. 404.1520(a)(4). At step three, she concluded that from November 5, 2007 through July 13, 2009, the severity of Jason's degenerative disc disease medically equaled the criteria of Listing 1.04A. (R. 1149-50). Next, applying the eight-step process for assessing medical improvement, the ALJ determined that Jason could work beginning July 14, 2009.[3] See 20 C.F.R. § 404.1594(f). First, she found that Jason had not engaged in substantial gainful activity since his alleged onset date of November 5, 2007 (step one). Id. at 1149. She next determined that as of July 14, 2009, Jason had the impairments of depression, anxiety, substance abuse disorder, degenerative disc disease, status post L3-S1 spinal fusion surgery, morbid obesity, and obstructive sleep apnea. Id. at 1149-50. However, the ALJ found that beginning July 14, 2009, Jason did not have an impairment or combination of impairments which met or medically equaled the severity of a listed impairment, even considering the impact of his morbid obesity (step two). Id. at 1150-52. Addressing Listing 1.04, the ALJ noted that Jason has no neurologic deficit, his pain is neuroanatomic in distribution, his straight-leg raising test is negative, he has no motor or sensory deficit, he does not ambulate with an assistive device, and he has not been found incapable of ambulating effectively. Id. at 1150-51. The ALJ then considered the severity of Jason's mental impairments. Id. at 1151-52. Applying the Paragraph B criteria, the ALJ found that Jason had mild restrictions in activities of daily living, moderate difficulties in social functioning, moderate difficulties with regard to concentration, persistence, or pace, and one to two episodes of decompensation, each of extended duration. Id. at 1151. The ALJ concluded that the Paragraph B criteria were not satisfied because his mental impairments did not cause at least two “marked” limitations or one “marked” limitation and “repeated” episodes of decompensation, each of extended duration. Id.

         The ALJ then determined that medical improvement occurred as of July 14, 2009, which was related to Jason's ability to work (steps three and four). Id. at 1152. Specifically, the ALJ concluded that Jason was found capable of performing light to medium work for up to five hours a day, his activities increased, his use of pain medication decreased at this time and thereafter, and that he no longer had an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. Id. The ALJ then found that Jason's impairments of depression, anxiety, substance abuse disorder, degenerative disc disease, status post L3-S1 spinal fusion surgery, morbid obesity, and obstructive sleep apnea are severe (step six).[4] Id. at 1149-50. She deemed Jason's hypertension non-severe as of July 14, 2009. Id. The ALJ next assessed Jason's RFC, finding he could perform sedentary work except that he can: occasionally climb ramps and stairs but never ladders, ropes or scaffolds; occasionally balance and stoop but never kneel, crouch, or crawl; never tolerate exposure to, or work around hazards such as moving machinery or unprotected heights and cannot be exposed to vibration; perform unskilled work tasks learned by demonstration or in 30 days or less of simple, repetitive and routine nature but is also limited to occasional, superficial, and incidental contact with the general public and occasional interaction with supervisors and coworkers. Id. at 1152.[5] Finally, the ALJ found that Jason was unable to perform his past relevant work as a heavy delivery truck driver since July 14, 2009, but could perform a significant number of jobs in the national economy, including hand packer and officer clerk/document preparer. Id. at 1161-62. Therefore, the ALJ fund that Jason was not disabled and that his disability ended as of July 14, 2009. Id. at 1162.

         DISCUSSION

         The Court reviews the ALJ's decision to determine whether it adequately discusses the issues and is based upon substantial evidence and the proper legal criteria. See Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009); Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004). “Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In reviewing an ALJ's decision, the Court may “not reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute [its] own judgment for that of the” ALJ. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). Although the Court reviews the ALJ's decision deferentially, the ALJ must nevertheless “build an accurate and logical bridge” between the evidence and her conclusions. See Steele v. Barnhart, 290 F.3d 936, 938, 941 (7th Cir. 2002) (internal citation and quotations omitted); see also Fisher v. Berryhill, 760 Fed.Appx. 471, 476 (7th Cir. 2019) (explaining that the “substantial evidence” standard requires the building of “a logical and accurate bridge between the evidence and conclusion”). Moreover, when the ALJ's “decision lacks evidentiary support or is so poorly articulated as to prevent meaningful review, the case must be remanded.” Steele, 290 F.3d at 940.

         At step eight of the continuing disability analysis, the ALJ found Jason not disabled because he retains the RFC to perform other work that exists in significant numbers in the national economy. Jason argues that the ALJ erred by: (1) failing to determine that his chronic pain syndrome was a severe impairment; (2) misrepresenting the record; (3) failing to properly assess his treating orthopedic surgeon's opinion; (4) failing to properly account for his temperamental deficiencies and moderate limitations in concentration, persistence, or pace in the RFC; and (5) failing to include a 45-minute sitting and standing limitation into the hypothetical posed to the VE. Jason's fourth challenge merits reversal in this case.

         A. Chronic Pain Syndrome

         Jason's first contention that the ALJ erred in failing to find that his chronic pain syndrome was a severe impairment is easily disposed of as the ALJ categorized numerous other impairments as severe and proceed to the next step in the sequential process. Severe impairments are evaluated at both step two of the five-step sequential disability evaluation process and step six of the eight-step continuing disability evaluation process. See 20 C.F.R. §§ 404.1520(c), 1594(f)(6). “Impairments are not ‘severe' when they do significantly limit the claimant's ability to perform basic work activities, including ‘walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling.'” Thomas v. Colvin, 826 F.3d 953, 960 (7th Cir. 2016); 20 C.F.R. § 404.1520(c). At step six of a medical improvement DIB case such as this one, the ALJ must “consider all [claimant's] current impairments and the impact of the combination of those impairments on [his] ability to function.” Id.[6] “When the evidence shows that all [claimant's] current impairments in combination do not significantly limit [his] physical or mental abilities to do basic work activities, these impairments will not be considered severe in nature” and “he will no longer be considered to be disabled.” Id. If the residual functional capacity assessment in step four shows significant limitation of claimant's ability to do basic work activities, the ALJ proceeds to step seven where the ALJ determines whether the claimant can perform his past relevant work. Id. The ALJ then assesses a claimant's RFC at step seven “based on all [his] current impairments.” 20 C.F.R. § 404.1594(f)(7). Like step two of the five-step sequential evaluation process, step six of the medical improvement analysis is a threshold inquiry. “As long as the ALJ determines that the claimant has one severe impairment the ALJ will proceed to the remaining steps of the evaluative process.” Castile v. Astrue, 617 F.3d 923, 926-27 (7th Cir. 2010).

         At step six, the ALJ determined that Jason had not developed any new impairment since July 14, 2009 and that his current severe impairments were the same as those present from November 5, 2007 through July 13, 2009. (R. 1150). Thus, the ALJ's analysis did not end at step six. Because the ALJ resolved step six in Jason's favor and proceeded through step eight of the continuing disability process, any error in that determination was not harmful. Ray v. Berryhill, 915 F.3d 486, 492 (7th Cir. 2019) (“Step two is merely a threshold inquiry; so long as one of a claimant's limitations is found to be severe, error at that step is harmless.”); Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir. 2012) (“[E]ven if there was a mistake at Step 2 [of the five-step sequential disability evaluation process], it does not matter. Deciding whether impairments are severe at Step 2 is a threshold issue only; an ALJ must continue on to the remaining steps of the evaluative process as long as there exists even one severe impairment.”).

         Moreover, after determining that Jason's current impairments in combination were severe, the ALJ determined that he had the RFC to perform a range of sedentary work with certain postural, environmental, and mental limitations. (R. 1152). In determining Jason's RFC, the ALJ expressly considered Jason's continued complaints of pain, Dr. Koehn's assessment of improvement in terms of chronic pain syndrome, Dr. Koehn's referral to Dr. Gregory Hawley for a formal psychiatric evaluation, and Dr. Hawley's diagnosis of chronic pain disorder when crafting an RFC and incorporated into the RFC limitations related to pain. Ray, 915 F.3d at 492 (“Either way, the ALJ must later consider the limitations imposed by all impairments, severe or non-severe.”); see (R. 1153) (noting Jason “still goes to the pain management doctor” and Dr. Jilhewar testified that he was aware of Jason's “continued reports of unresolved pain” after the closed period.”); (R. 1154) (noting Functional Capacity Assessment (FCA) limitations dated 6/11/2009 “expressly include consideration of pain”); (R. 1156) (noting at 10/25/2010 visit with Dr. Koehn Jason “showed some improvement, particularly in terms of chronic pain syndrome behavior and at November 2010 visit Jason “reported no increase in pain with the tapering of medications” and “[t]apering of medication was to continue”); (R. 1157) (giving “considerable weight” to state agency mental consultants' opinions but finding “a greater degree of limitation in social functioning on the residual functional capacity to reflect irritability resulting from perceived pain.”); (R. 1158) (noting referral to Dr. Hawley for psychiatric evaluation and diagnosis of chronic pain disorder); (R. 1160, 1161) (considering Jason's obesity and pain when fashioning the postural and environmental limitations of the RFC). Therefore, the Court does not find any error beyond step six because the ALJ addressed the impact of Jason's continued complaints of pain in formulating the RFC.

         B. Alleged Misrepresentations of the Record

         Next, Jason argues that the ALJ improperly misrepresented the record in two respects. First, Jason contends that the ALJ misrepresented that his fusion surgery “itself went well.” (R. 1160). Second, Jason contends that the ALJ misrepresented that ME Dr. Jilhewar's opinion was uncontroverted. Jason's arguments are not well taken.

         Jason first submits that the ALJ misrepresented that his “fusion surgery itself went well” because Dr. Koehn concluded the surgery was “considered a failed fusion” which would require medical management and low level physical activity. (R. 775, 1160). Jason also points to records from a Psychosocial Assessment on November 26, 2013 which indicate that Jason's depressive disorder and anxiety disorder symptoms led to social withdrawal and isolation and limited his desire to do things he once enjoyed and a September 22, 2009 ER visit for observation and treatment of suicidal ideations and major depressive disorder with associated alcohol intoxication and a desire to “end it all.” Id. at 1083. 1500.

         The evidence Jason relies on does not establish that the ALJ erred in stating that the “fusion surgery itself went well.” (R. 1160). First, the ALJ made this statement in her discussion of Jason's subjective statements, which she found not entirely credible, a determination that Jason does not challenge. Second, it appears that the ALJ was referring to the surgery “itself” going well, rather than finding that Jason had an excellent outcome from his surgery, such that he returned to his pre-injury functioning or was pain free after undergoing lower back surgery-as Jason seems to suggest. In the context of the entire decision, the Court reads the ALJ's statement to mean that there were no complications or problems associated with the actual surgery or recovery form the surgery. The ALJ's statement that Jason's triple fusion surgery “itself went well” is substantially supported. (R. 861) (12/15/08 - noting “[t]he x-ray demonstrates good position of the hardware. The wound looks excellent. Neurologically he is totally intact.”); (R. 862) (1/19/09 - stating “[o]n examination his incision is well healed” and x-rays “show pedicle screws at ¶ 3, L4, L5 and S1 with posterolateral fusions forming.”); (R. 863, 864) (3/2/09 and 4/13/09 - noting “incision is well healed” and x-rays “show pedicle screws at ¶ 3, L4, L5, and S1 with a generous posterolateral fusion.”); (R. 865) (6/30/09 - noting x-rays “show pedicle screws at ¶ 3, L4-5, and S1 with posterolateral and interbody fusion formed nicely.”); (R. 867) (1/4/10 - stating x-rays “show pedicle screws at ¶ 3, L4, L5, and S1 with a good posterolateral fusion forming nicely. It is a mature fusion.”). As the ALJ noted at step three, Jason's recovery from surgery “was uneventful” and despite continued complaints of pain, he has “no ongoing neurological abnormalities and the fusion had healed.” Id. at 1150. Although Dr. Koehn characterized the surgery as a “failed fusion, ” Jason's orthopedic surgeon, Dr. Lorenz, did not indicate that the surgery was a failure. Id. at 1155.

         Moreover, the record reflects that Jason did improve after the surgery compared to his pre-surgery condition, but the ALJ recognized that Jason had pain symptoms post-surgery. (R. 1160) (recognizing that Jason “continued to complain of pain.”); (R. 1153, 1160) (giving great weight to Dr. Jilhewar's opinion who recognized that Jason had continued reports of unresolved pain after 7/13/09); (R. 1155) (giving some weight to the 6/11/09 FCA because it “incorporate[d] a consideration of pain.”); (R. 1160) (accommodating Jason's obesity and pain by including postural and environmental limitations to the RFC). The ALJ also correctly noted that Jason's functional capacity improved from a light to a light to medium exertional capacity after the surgery. Id. 627-36, 680-88, 1154.

         Jason next argues that the ALJ misrepresented that Dr. Jilhewar's opinion was “uncontroverted.” (R. 1150). He contends that this is incorrect because Dr. Lorenz and the FCA dated June 11, 2009 limited Jason to a 5-6 hour workday, pain specialist Dr. Koehn stated on July 20, 2009 that Jason's multilevel fusion failed, and Dr. Koehn noted on March 15, 2010 that Jason's “[d]aily ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.