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Gabriel B. v. Saul

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

October 28, 2019

GABRIEL B., Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant.



         Plaintiff, Gabriel B., moves for reversal and remand of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability benefits (doc. # 9: Pl.'s Mot. For Summ. J., doc. # 10: Pl.'s Mem.). The Commissioner has filed a response brief, asking this Court to affirm the Commissioner's decision (doc. #18: Def.'s Mot. For Summ. J., doc. # 19: Def.'s Resp.). Plaintiff has filed his reply (doc. # 20: Pl.'s Reply). The matter is fully briefed. For the following reasons, we grant Mr. B.'s motion and remand the case.


         Mr. B. applied for disability insurance benefits ("DIB") on September 3, 2014, alleging an onset date of September 26, 2013 (R. 14). Mr. B.'s date last insured was June 30, 2019 (Id.). Mr. B.'s claim and subsequent appeal for reconsideration were both denied (R. 14, 90, 107). Shortly thereafter, Mr. B. filed a written request for a hearing in front of an Administrative Law Judge ("ALJ") (R. 14, 124-25). Mr. B. and a Vocational Expert ("VE") testified at the hearing which was held on July 7, 2017 (R. 14, 30). On October 10, 2017, the ALJ issued a decision denying Mr. B.'s claim for benefits (R. 24). The Appeals Council declined to review the ALJ's decision, making it the final word from the Commissioner (R. 1-3). See Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015); 20 C.F.R. §404.981.


         Mr. B. was born on April 25, 1970 (R. 77, 144). He experienced a work-related back injury in April 2012, and he underwent L5-S1 fusion surgery on October 31, 2012 (R. 99, 184). Mr. B. stopped working on September 26, 2013 because his employer could not accommodate his work restrictions (R. 185). Mr. B. filed a worker's compensation claim and then began vocational rehabilitation in June 2014 (R. 225). In his function report dated March 5, 2015, Mr. B. reported that he had pain in his lower back and right foot and leg that prevented him from doing many things; he needed to alternate between standing or walking and sitting; he was restricted to driving no more than 30 minutes; he was restricted to working four hours every other day; and he required use of a cane (R. 192).


         In connection with Mr. B.'s worker's compensation claim, he underwent a functional capacity evaluation ("FCE") on June 3, 2013 (R. 304-12). Mr. B. demonstrated functional capabilities at the light to medium level in lifting weights (R. 304). The examiner determined that Mr. B. was capable of a five to six-hour workday, sitting in 30-minute increments for a total of three to four hours, standing in 30-minute increments for a total of three to four hours and occasionally walking moderate distances for a total of two to three hours (R. 305). Mr. B. could occasionally (6-33% of the day or 0.5 to 2.5 hours) balance, bend, stoop, climb stairs, crawl, crouch, use his foot, kneel, squat, and flex and rotate his neck (Id.). Mr. B. could occasionally carry 70 pounds and frequently (34-66% of the day or 2.5 to 5.5 hours) carry two to seven pounds (Id.).

         During the assessment, Mr. B. reported pain in his lower back and right leg, calf and foot (R. 304). He demonstrated difficulty and reported increased pain with sitting, standing and walking activities (Id.), As the assessment proceeded, Mr. B. demonstrated a decreased tolerance to activity (Id.).

         Mr. B. received ongoing care from Sean A. Salehi, M.D., the neurosurgeon who performed his October 2012 fusion surgery (R. 325). On June 25, 2013, Mr. B. was examined by Dr. Salehi and reported continued pain in his back and numbness in his left leg due to work that required him to bend and twist (Id.). Upon examination, Mr. B.'s gait was normal, his sensation to light touch was decreased in his right leg and the deep tendon reflexes were diminished in his lower extremities (R. 326). Dr. Salehi noted that Mr. B. should not bend or twist for more than one minute more than three times an hour (R. 327).

         On September 25, 2013, Mr. B. reported to Dr. Salehi that his pain had worsened and that, with activity, the pain increased in severity to a seven to eight out often (R. 328). Mr. B.'s gait was slow but otherwise normal and his sensation to light touch was decreased in the right leg (R. 329). Mr. B. was prescribed Ultram and Neurontin for his pain (R. 330). Additionally, Dr. Salehi limited Mr. B. to desk work with no lifting, pushing or pulling of anything over ten pounds (Id.).

         On October 1, 2013 Mr. B. underwent a CT scan that revealed sclerotic changes involving the endplates at the L5-S1 level, a component of congenital lumbar spinal canal stenosis, facet arthropathy and hypertrophy creating mild spinal and mild to moderate bilateral neural foraminal stenosis at L3-4 more on the right, and mild to moderate bilateral neural foraminal stenosis at L4-5 (R. 302). Mr. B. informed Dr. Salehi on October 17, 2013 that he was no longer having right leg pain and he was no longer working because his employer would not accommodate the restrictions (R. 334). Mr. B. still experienced numbness in his right leg and foot and had stopped taking the medications due to side effects of panic attacks (Id.), Dr. Salehi stated that Mr. B. could resume working with his "prior permanent work restrictions outlined" in the June 3, 2013 FCE (R. 336).


         On May 6, 2014, Mr. B. attended a new patient consultation at Premier Pain Specialists with Arpan Patel, M.D. (R. 298). Over the course of the next nearly two and a half years, Mr. B. had 31 appointments at Premier Pain Specialists; 12 appointments were with Dr. Patel, and the remaining were with a nurse practitioner or physician's assistant under the supervision of Dr. Patel or one of his colleagues (R. 380-420, 468-93, 899-904, 923-56).

         At the first appointment, Dr. Patel reviewed Mr. B.'s work-related injury and his October 31, 2012 lumbar L5-S1 fusion surgery (R. 298). Dr. Patel summarized Mr. B.'s complaints of pain in his left lower back and radiating to his right lower back; his need to move from sitting to standing to moving to lying down to alleviate the symptoms; numbness in his toes, right knee and right thigh; the symptoms worsening with activities; and constant pain averaging an eight out of ten (Id.). Dr. Patel found that Mr. B. had fatigue, blurred vision, loss of balance, irregular heartbeat, excessive urination, back pain, weakness and tingling/pins and needles, trouble sleeping and anxiety (R. 299). On physical examination, Dr. Patel described the pain Mr. B. experienced in his lumbar spine after various tests and noted his antalgic gait pattern (a limp adopted to avoid pain) (R. 299-300). Dr. Patel assessed Mr. B. with sacroiliitis, lumbosacral spondylosis without myelopathy, radiculopathy T/L/S, and postlami back syndrome, lumb (R. 300).[2] According to Dr. Patel, Mr. B.'s MRI showed facet arthropathy in the lower lumbar facet joints (Id.). Dr. Patel started Mr. B. on medications and recommended minimally invasive procedures to attempt to alleviate his pain (Id.). Dr. Patel's plan was to optimize Mr. B.'s overall pain condition prior to sending him back to work (R. 301). Finally, after psychometric testing, Dr. Patel noted that Mr. B. had indicators suggesting major depression (Id.).

         Dr. Patel performed a left sacroiliac joint injection under fluoroscopic guidance on Mr. B. on May 14, 2014 (R. 294). On May 29, 2014, Mr. B. experienced a 50 percent improvement of his left lower back pain (R. 291). Nonetheless, Mr. B. continued to experience pain in a discreet location in his lower left back and the MRI reported facet arthropathy in his lower lumbar facet joints (R. 292).

         On June 12, 2014, Dr. Patel performed left L3, L4 and L5 lumbar medial branch blocks on Mr. B. (R. 288). On August 6, 2014, Dr. Patel performed a lumbar transforaminal epidural steroid injection under fluoroscopy on Mr. B. to address his diagnosis of lumbar radiculopathy, spinal stenosis and post-laminectomy syndrome (R. 285).

         During a July 22, 2014 visit to Dr. Salehi, Mr. B. rated his pain as a constant seven to eight out often (R. 331). Prolonged walking, standing or sitting resulted in burning and cramping in his right calf and he experienced difficulty sleeping due to cramping in his right foot and toes (Id.). Driving to vocational rehabilitation, which took an hour, worsened his pain (Id.). Upon examination, there was mild tenderness throughout Mr. B.'s lumbar spine and his range of motion was limited (R. 332). Mr. B.'s sensation to light touch was decreased in his right leg, and Dr. Salehi recommended a spinal cord stimulator for Mr. B.'s radicular symptoms (R. 332-33). Dr. Salehi stated that Mr. B. could continue to work under the June 3, 2013 FCE restrictions but for no more than six hours per day (R. 333).

         Dr. Patel performed a lumbar transforaminal epidural steroid injection under fluoroscopy on August 6, 2014 on Mr. B. (R. 349). Dr. Patel indicated that he would continue his efforts to obtain authorization for Mr. B. to use spinal cord stimulation (Id.).

         On August 27, 2014, Mr. B. reported to Dr. Patel that he had "no durable benefit" following the August 6 epidural, and he rated the severity of his right leg pain and numbness at an eight out often in severity (R. 282). Mr. B. reported that he had difficulty sleeping, cramping in his right calf, and difficulty at work due to leg pain; that driving an hour to work exacerbated his pain; and that use of a cane may make his six-hour workday more tolerable (Id.). Dr. Patel provided Mr. B. with a work note allowing him to use a cane (R. 283). Dr. Patel further noted that psychological testing performed suggested possible MDE (major depressive episode) (Id.).

         Mr. B. experienced increased pain on September 17, 2014 that he rated at a nine out often (R. 279). Mr. B. stated that he was exacerbated working a six-hour day and that he felt pain when he sat or stood for too long (Id.). It was recommended that Mr. B. undergo spinal cord stimulation because it has been a proven treatment with post-laminectomy syndrome and was also recommended by Dr. Salehi; however, Mr. B. would need to undergo a psychiatric evaluation prior to being approved for the spinal cord stimulation trial (R. 280). Due to Mr. B.'s increased radicular pain, Mr. B.'s work day was restricted to four hours (Id.).

         On November 5, 2014, Mr. B. had trouble getting his treatments covered by insurance and his gait was antalgic (R. 276). Mr. B. experienced increased radicular pain and reported that the six-hour work day was physically taxing for him (R. 277). Tramadol was rotated with Norco to help with Mr. B.'s increased pain, and it was recommended that Mr. B. see a counselor or psychiatrist (Id.).

         On December 30, 2014, Mr. B. rated his pain at an eight out often and felt it was increasing (R. 273). He described a constant and sharp pain that was primarily located in his right leg with increasing left-sided low back pain since his last visit (Id.). Mr. B. felt the Norco medication was helpful but inquired about an increased dosage due to his severe pain levels (Id.). On examination, Mr. B. was not in acute distress, his gait was antalgic, he walked with a cane and the flexion and extension of his lumbar spine was limited (R. 273-74). Mr. B. was assessed with lumbosacral spondylosis without myelopathy, sacroiliitis, radiculopathy, and post-laminectomy back syndrome in the lumbar region (R. 274). Spinal cord stimulation treatment was recommended, and it was reiterated that Dr. Salehi also recommended this treatment (Id.). It was noted that Mr. B. underwent an FCE in June 2013, was participating in vocational training four hours a day twice a week, and that he should "continue these work restrictions" (Id.). Finally, beyond the spinal cord stimulation treatment, sacroiliac joint injection was recommended, Mr. B.'s Norco dosage was increased, and he was referred to Kenneth R. Lofland, Ph.D. for a mental health evaluation (Id.).

         From January 2015 until February 2016, Mr. B. was treated on a weekly basis by Dr. Lofland for pain psychology, depression, anxiety and anger (R. 421-56, 494-565, 905-22, 963-1066). Dr. Lofland noted that Mr. B. was on the following medications: Lyrica, Flexeril, Amitriptyline and Hydrocodone (Id.). Dr. Lofland used cognitive behavior therapy to lower Mr. B.'s anxiety, depression, anger and pain perception (R. 494-565). Each week, Mr. B. relayed his pain, depression and anxiety levels to Dr. Lofland along with the number of panic attacks he experienced that week (Id.). The record does not contain an assessment of Mr. B.'s functional level by Dr. Lofland.

         On February 4, 2015, Mr. B. followed up with Dr. Patel complaining of pain in his lower back that radiated to his right calf, foot and toes and explained it was worse with standing, sitting or driving for long periods of time (R. 313). Mr. B. described his difficulty driving the distance to vocational training and his inability to take pain medication while working (Id.). Dr. Patel reiterated his belief that spinal cord stimulation was Mr. B.'s best option for pain relief and that Mr. B. should continue his work restrictions (R. 314).

         Mr. B. was again seen by Dr. Patel on February 25, 2015, at which time he reported difficulty driving more than 30 minutes and that working consecutive days caused his level of pain the following day to be severe especially because he could not take pain medication while driving or working (R. 316). Mr. B. rated his pain at a nine out often and noted it improved with lying down (Id.). The examination revealed tenderness to palpation over left sacroiliac joint, forward flexion limited to 60 degrees, extension limited to ten degrees and the slump seat test and straight leg raise both positive on the right (R. 317). Dr. Patel assessed Mr. B. with post-laminectomy syndrome, lumbar region; lumbosacral spondylosis without myelopathy; sacroiliitis; and thoracic or lumbosacral neuritis or radiculitis (Id.). Dr. Patel reiterated his recommendation for a spinal cord stimulator, continued Mr. B.'s medications and limited Mr. B. to driving less than 30 minutes and working only four-hour shifts every other day (Id.).

         In a progress note dated April 22, 2015, it was noted that Mr. B. was having issues with insurance regarding the neurostimulator trial (R. 468). On examination, it was reported that Mr. B. had tenderness over his left sacroiliac joint, his flexion and extension were limited, and the ...

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