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Pierce v. Saul

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

November 20, 2019

JERRY P., Plaintiff,
ANDREW M. SAUL, Commissioner of the Social Security Administration, [1] Defendant.


          Susan E. Cox, Magistrate Judge

         Plaintiff Jerry P.[3] appeals the decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act (“Act”). 42 U.S.C. §§ 401 et seq. and 1381 et seq. Plaintiff has filed a motion for summary judgment [dkt. 20]; the Commissioner has filed a cross-motion for summary judgment [dkt. 27]. For the reasons detailed below, Plaintiff's motion for summary judgment [dkt. 20] is granted, and the Commissioner's motion [dkt. 27] is denied. This matter is remanded for further proceedings consistent with this Memorandum Opinion and Order.

         I. BACKGROUND

         a. Procedural History

         In July 2016, Plaintiff applied for DIB and SSI, alleging disability beginning November 15, 2014. [Administrative Record (“R.”) 17.] After his applications were initially denied on November 22, 2016, and upon reconsideration on January 20, 2017 [R. 91, 113, 120-29], Plaintiff requested an administrative hearing. [R. 18, 132-34.] On March 13, 2018, Plaintiff appeared with counsel and testified at a hearing before Administrative Law Judge (“ALJ”) Luke Woltering. [R. 38-72.] The ALJ also heard testimony from vocational expert (“VE”) Kari Seaver. Id. Following the March 2018 hearing, on April 23, 2018, Plaintiff's counsel penned a post-hearing memorandum of law in support of Plaintiff's claim for disability benefits. [R. 277.] In this memorandum, Plaintiff's counsel submitted post-hearing objections to the vocational expert's testimony. Id. On June 13, 2018, the ALJ, acknowledging Plaintiff counsel's post-hearing vocational testimony objections, determined that Plaintiff was not disabled. [R. 17-33.] On August 29, 2018, after a review of the ALJ's decision, the Appeals Council issued a decision affirming that Plaintiff had not been under a disability from his alleged onset date to the date of the ALJ's decision. [R. 1-3.] Thus, the Decision of the Appeals Council is the final decision of the Commissioner. Plaintiff filed an action in this court on October 15, 2018, seeking review of the Commissioner's decision.

         b. Plaintiff's Background

         Plaintiff was born in 1964 and was 50 years old on his alleged disability onset date. [R. 73.] Prior to that date, Plaintiff was a truck driver. [R. 46.] At all relevant times, Plaintiff met the classification of “mildly obese, ” possessing a body mass index (“BMI”) of 34. [R. 373.]

         Two months prior to the alleged disability onset date, on September 16, 2014, Earl Fredrick, M.D., Plaintiff's primary physician, diagnosed Plaintiff with hypertension and osteoarthritis in relevant part.[4] [R. 540-42.] Dr. Fredrick prescribed medication to regulate Plaintiff's high blood pressure and Plaintiff's right-side pain, “radiat[ing] from the hip to the ankle.” Id.

         On November 25, 2014, ten days following Plaintiff's alleged disability onset date, Plaintiff paid another visit to his physician, at which time Dr. Fredrick further diagnosed Plaintiff with chronic kidney disease and obstructive sleep apnea (“OSA”). [R. 537.] In Plaintiff's subsequent visits on March 9, 2016, Dr. Fredrick diagnosed him with tobacco abuse disorder, followed by essential hypertension and chronic obstructive pulmonary disease (“COPD”) with chronic bronchitis on November 28, 2016. [R. 506-11.] Plaintiff's tobacco abuse disorder and COPD are related to his smoking: he reported that his smoking declined from two packs a day to one. [R. 404.] Due to these conditions, Plaintiff has exhibited a minimal obstructive lung defect, which has resulted in exacerbated wheezing and coughing symptoms. [R. 405-06.]

         During that time period, Dr. Fredrick also noted and attempted to treat Plaintiff's right-side lower body back pain, first appearing in the hip and leg in September 2014 and later moving to the lower back.[5] The physician prescribed Plaintiff pain medications and referred him for a lumbar spine x-ray, conducted on October 26, 2015. [R. 24, 480, 512.] The x-ray revealed Plaintiff had “[s]light L5-S1 retrolisthesis” and “mild posterior L5-S1 disc space narrowing, ” supporting a finding of lumbar spine degenerative disc disease. [R. 573.]

         Plaintiff's pain persisted, so on September 19, 2016, pursuant to his physician's referral, Plaintiff began seeking back pain treatment with Mitchell Goldflies, M.D., an orthopedic surgeon. [R. 364.] Dr. Goldflies recorded Plaintiff's assessment of his pain as a seven on a 1-10 scale and Plaintiff's comment that “any form of activity exacerbate[d] the pain.” [R. 422.] He proceeded to diagnose Plaintiff with “[l]umbago with sciatica, [of the] right side, ” specifically finding Plaintiff's results “consistent with lumbar dysfunction with secondary right-sided sciatica” and commenting that they made him a good candidate for a “rehab program” and an MRI. [R. 367, 420.]

         On September 26, 2016, at the request of the Social Security Administration (“SSA”), Plaintiff met with M.S. Patil, M.D., State consultative medical examiner. [R. 370-73.] Dr. Patil reported Plaintiff had a difficult time sitting for more than an hour and standing or walking for more than twenty minutes. Id. Difficulty squatting and arising were also noted. Id. In sum, the exam revealed Plaintiff had a slight decreased range of motion of his lumbar spine and a negative straight leg raise. [R. 372-73.]

         Plaintiff then attended physical therapy on October 4, 2016, during which time an initial evaluation Plan of Care report was conducted by physical therapist Eva Szulc. [R. 587-88.] Ms. Szulc reported Plaintiff had decreased range of motion of his lumbar spine. Id. Specifically, he had: “1) pain in LB [(lower body)] and posterior RLE [(right lower extremity)]; 2) difficulty walking >1/2 block; 3) poor posture…; 4) decreased stance time…; 5) tender[ness] to palpation LB erector spinae, R priformis; 6) poor body mechanics; 7) decreased BLE [(Bilateral Lower Extremity)] active range of motion; 8) decreased BLE strength…; [and] 8) difficulty with stairs at times.” Id. A treatment plan was made, but Plaintiff declined to attend future appointments, either by canceling or not showing up. [R. 580-83.]

         On February 20, 2017, Plaintiff paid another visit to primary physician Dr. Fredrick's office, complaining of right-side back pain. [R. 499.] Dr. Fredrick now indicated that the “[t]he problem [had] worsen[ed]”; Plaintiff's pain, “occur[ing] persistently, ” “radiated to the right calf, right foot and right thigh” and was “aggravated by sitting, standing and walking.” Id. The physician recorded Plaintiff's “chronic right-sided low back pain with right-sided sciatica, ” prescribed tramadol for pain management, and ordered Plaintiff's use of a “single adjustable cane.” [R. 501.] Because of the severity of the pain, Plaintiff exhibited related mental health troubles: Dr. Fredrick noted Plaintiff appeared “down, depressed or hopeless.” [R. 500.]

         On the same date, February 20, 2017, Plaintiff visited nephrologist Ejikeme Obasi, M.D. [R. 553-55.] Dr. Obasi diagnosed Plaintiff with stage III chronic kidney disease (moderate), rather than stage II (mild), which was Plaintiff's prior diagnosis. [R. 528, 553.] On June 2, 2017, Plaintiff had a right hip and pelvis x-ray and an ultrasound. [R. 26, 550, 562-63.] ...

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