The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
JEFFREY E. LAKE, )
)
Plaintiff, )
)
v. ) No. 19-cv-3273
)
ANDREW SAUL, Commissioner )
of Social Security, )
)
Defendant. )
OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
Plaintiff Jeffrey E. Lake appeals from the denial of his application for
Social Security Disability Insurance Benefits (Disability Benefits) under Title
II of the Social Security Act. 42 U.S.C. §§ 416(i) and 423. This appeal is
brought pursuant to 42 U.S.C. § 405(g). Lake filed a Brief in Support of
Motion for Summary Judgment (d/e 12). The Defendant Commissioner
filed a Motion for Summary Affirmance (d/e 16). Plaintiff filed a Reply Brief
to Defendant’s Motion for Summary Judgment (d/e 17). The parties
consented to proceed before this Court. Consent to the Exercise of
Jurisdiction by a United States Magistrate Judge and Reference Order
entered April 29, 2020 (d/e 11). For the reasons set forth below, the
Decision of the Commissioner is affirmed.
STATEMENT OF FACTS
Background
Lake was born on June 1, 1972. He secured a GED and previously
worked as a truck driver. He stopped working in 2011 and filed for
Disability Benefits on April 21, 2016.1 Lake suffered from degenerative disc
disease status post cervical fusion with radiculopathy and myelopathy,
osteoarthritis, elbow degenerative joint disease, bilateral trigger thumbs,
fibromyalgia, chronic pain syndrome, polyneuropathy, coronary artery
disease and ischemic heart disease status post multiple stent placements,
and obesity. He alleged that he became disabled on October 1, 2014
(Onset Date). The last day that Lake qualified for Disability Benefits was
December 31, 2016 (Last Date Insured). Certified Transcript of
Proceedings before the Social Security Administration (d/e 8) (R.), 15, 17,
25, 41, 66.
Evidence Prior to Evidentiary Hearing
On October 28, 2013, Lake saw his primary care physician Dr. Jason
Sharp, M.D. R. 496-97. Lake saw Dr. Sharp for sinusitis and reported that
his back pain was stable, but he had flare-ups of uncontrollable pain. He
1 Lake protectively filed a prior application for Disability Benefits on April 15, 2011. R. 75. The record
does not indicate the outcome of that application.
was compliant with his medications and did not have any side effects.
Lake said his pain specialist switched his pain medication from
hydrocodone to Oxycontin and his pain has been worse since the change.
R. 496. On examination, Lake appeared uncomfortable. He had 4/5
strength in his upper extremities including finger flexion and a weak hand
grip. Lake’s sensation to touch was diminished in both hands and his
balance was impaired. Dr. Sharp assessed chronic pain. R. 497.
On January 28, 2014, Lake saw Dr. Sharp. R. 482-84. He
complained of worsening pain and leg weakness and rated his pain as a
10/10. On examination, Lake was uncomfortable, his heart and pulmonary
functions were normal, his motor strength was normal in his left upper and
lower extremities, and his straight let testing was negative. Lake’s spine
had decreased lordosis with tenderness from T-10 to L-5 and spasms from
T-11 to L-4. Extension, flexion, and rotation of the spine were restricted
and painful. His sensory exam of his spine was normal. Dr. Sharp referred
Lake for a surgical consult. R. 483.
On March 19, 2014, Lake saw orthopedic Advanced Practice Nurse
Nicollette Haurbrich, ANP, FNP-BC, for chronic low back pain. Lake
reported that in 2008 he fell 15 feet. After this fall, he underwent a cervical
discectomy and fusion surgery in 2008. He has had chronic low back pain
since the 2008 fall. He had loss of strength in his legs, his pain medication
dulled the pain, and he was taking eight hydrocodone/acetaminophen
tablets a day. He also received some benefit by using a home TENS unit
every other day. His primary care physician put him on a 10-pound lifting
limit. R. 320. Haurbrich reviewed imaging of Lake’s spine. X-rays taken
January 29, 2014 showed multi-level degenerative disc disease with
osteophytes, end-plate deformities at many levels, and no acute fractures
or subluxations. A December 8, 2014 MRI showed loss of disc height and
no significant stenosis at L1-2, L3-4, and L4-5; and loss of disc height, mild
diffuse disc bulge, and facet arthropathy, but no significant stenosis at L5-
S1. R. 320-21. Lake also had a history of fibromyalgia. R. 321. On
examination, Lake was 68 inches tall, weighed 229 pounds, and had a
body mass index (BMI) of 34.83. R. 319. Haurbrich found no evidence of
cardiac ischemia. He had normal posture and gait; normal strength,
muscle tone, and range of motion in the lower extremities with minimal to
no pain with rotation of the hips; and a normal spinal examination except
for a positive Hoffman sign related to the prior surgery and mild to
moderate discomfort on palpation of the lumbar spine.2 Sitting straight leg
2Hoffman test is a test of reflexes in the fingers. See Dorland’s Illustrated Medical Dictionary (32nd ed.
2012) (Dorland’s), at 1712.
testing was positive bilaterally. Lake had 5/5 strength throughout his lower
extremities and reported pain with flexion and extension of his lower
extremities. Haurbrich assessed low back pain, lumbar radiculopathy,
lumbar spondylosis, and multi-level degenerative disc disease and end
plate deformities. She recommended having another MRI of Lake’s lumbar
spine and directed him to perform home exercises he received from
physical therapy. She also recommended weight loss. R. 322-23.
On April 3, 2014, Lake saw orthopedic surgeon Dr. Nitin Kukkar,
M.D., for a consultation. R. 314-16. Dr. Kukkar noted that Lake had a
history of a spinal cord injury with myelopathy and had undergone a
surgical discectomy and fusion at C6-C7. Lake reported continuing back
pain and balance issues and rated his pain at 7/10. He had been taking
hydrocodone for three years. On examination, Lake was moderately
obese. Hoffman’s sign was positive. Lake had balance problems and was
unable to perform Romberg sign and could not heel or toe walk.3 Lake was
stiff sitting up on the examination table. Extension and flexion of the
lumbar spine was restricted. Dr. Kukkar stated that Lake’s x-rays and MRI
showed severe degenerative disc disease at multiple levels of Lake’s
3 Romberg’s sign is a test of balance with feet close together and eyes closed. See Dorland’s, at 1715.
lumbar spine causing foraminal stenosis at multiple levels and central
stenosis at almost all levels. Dr. Kukkar concluded:
ASSESSMENT AND PLAN: I had a long discussion to him
regarding pain pills and good back health. At this age, whatever
we have to do will have to fuse the lumbar spine and even up to
the thoracic spine. Now, this is going to create a lot of problems
because the patient is only 41 years old, but this is about the
only solution that we can do for the stenosis as well as the
degeneration and arthritis. I talked to him about quitting pain
pills and going on Aleve rather than taking hydrocodone and
why the hydrocodone fails chronically. I told him to avoid
surgery as long as possible as well.
R. 315.
On April 17, 2014, Lake saw cardiologist Dr. Irving Schwartz, M.D. R.
474-76. In January 2009, Lake had six cardiac stents placed in his heart.
Dr. Schwartz noted that Lake smoked. Dr. Schwartz said,
“Cardiovascularly things are stable other than the tobacco use.” R. 474.
On examination, Lake’s heart and pulmonary exams were normal, his
motor exams were normal for his upper and lower extremities. Dr.
Schwartz assessed atherosclerotic heart disease of the native coronary
artery without angina pectoris. Dr. Schwartz adjusted his blood pressure
and cholesterol medication and recommended that Lake stop smoking. R.
476.
On July 29, 2014, Lake saw Dr. Sharp. R. 372-75. He complained of
increasing pain. He denied any shortness of breath, chest pain, or lower
extremity edema and said he had worsening lower back pain, lower
extremity pain, lower extremity paresthesia, and lower extremity weakness.
He did not sleep well and did not engage in much physical activity. He
used a riding mower to mow his lawn and took his boat “out on the river.”
He could walk half a block, sit for five to 10 minutes, and stand for 10 to 15
minutes. His pain was 6/10 at the time of the visit and ranged from 6/10 to
10/10. Lake took 7 to 10 hydrocodone tablets per day along with muscle
relaxants and used a TENS unit four times a week. He stated that Dr.
Kukkar recommended back surgery or medical marijuana. R. 372.
On examination, Lake was 5 feet 8 inches tall, weighed 233 pounds,
and had a BMI of 35.43. R. 375. Lake was uncomfortable. He had
bilateral 0-trace+ pretibial pitting edema. His heart and pulmonary exams
were normal. His upper extremity bilateral strength was 4/5 in the biceps
and triceps and 5/5 in finger flexions. Dr. Sharp assessed lumbar
spondylosis and continued Lake’s hydrocodone/acetaminophen
medication. Dr. Sharp noted, “Recommending walking with the cane in left
hand.” R. 373.
On December 3, 2014, Lake saw Dr. Sharp. Lake reported stable
back pain and stiffness. He took six hydrocodone a day but had not refilled
his prescription for muscle relaxants. He denied any side effects from his
medication and was sleeping “okay.” R. 464. On examination, Lake was
mildly uncomfortable. His heart and pulmonary exams were normal. He
had 0-trace+ pretibial edema. R. 465.
On March 4, 2015, Lake saw Dr. Sharp. R. 363-65. Lake
complained of worsening back pain. He fell a month earlier and then “lifted
something heavier than he should have.” His pain level was up to 10/10.
Hydrocodone and muscle relaxants decreased the pain for about one and
half hours. R. 363. On examination, Lake appeared chronically ill and
uncomfortable. His heart and pulmonary function exams were normal.
Lake had bilateral 0-trace+ pretibial edema. Dr. Sharp deferred
examination of Lake’s back and neck and assessed chronic pain. Dr.
Sharp prescribed the antidepressant duloxetine (Cymbalta) and fentanyl.
Dr. Sharp recommended that Lake lift no more than 20 pounds. R. 364.
On May 12, 2015, Lake saw Dr. Sharp. Lake reported that he was
doing well, and his neck and back pain improved. His average pain level
was 4/10 and his maximum pain was 6/10. Lake was compliant with his
medication and denied any side effects. R. 457. On examination, Lake
appeared mildly uncomfortable and chronically ill. His heart and pulmonary
exams were normal. He had 0-trace+ pretibial edema. His elbows showed
bilateral tenderness, full range of motion, and decreased strength
secondary to pain. Dr. Sharp administered steroid injections into Lake’s
elbows. R. 458.
On June 2, 2015, Lake saw cardiologist Dr. Irving Schwartz, M.D. R.
356-58. Dr. Schwartz noted that Lake had a history of the placement of six
cardiac stents in January 2009. R. 356. Dr. Schwartz’ examination of
Lake’s heart was normal, his pulmonary examination was normal, and his
upper and lower extremity motor function exams were normal. Dr.
Schwartz assessed arteriosclerosis of the coronary arteries, found no
indication to suggest recurrent of coronary artery disease, and
recommended that Lake stop smoking. Lake told Dr. Schwartz he could
not exercise due to his back pain. R. 358.
On September 21, 2015, Lake saw Dr. Sharp. R. 450-53. Lake
reported stable back pain and rated his pain as 9/10. He reported
numbness in his right lower extremity. He was using a long acting fentanyl
patch every three days, and five to six hydrocodone per day. He reported
constipation as a side effect of the medication. R. 450. On examination,
Lake appeared uncomfortable but not acutely ill. His heart and pulmonary
exams were normal, and he had no peripheral edema. Dr. Sharp
increased the dosage of the fentanyl patch. R. 451.
On November 25, 2015, Lake saw Dr. Sharp. R. 348-51. Lake
denied having any shortness of breath, chest pain, or lower extremity
edema. He had no change in his low back pain and had trouble walking
some days. His elbow pain also was unchanged, and he rated his pain at
8/10. Lake was taking fentanyl and duloxetine for his pain and said he was
not experiencing any side effects from the medication. Lake reported that
he went hunting and the movement exacerbated his pain. R. 348. On
examination, Lake appeared chronically ill but not uncomfortable. Lake’s
heart and pulmonary function were normal. He had tenderness in both
elbows and his left calf lacked a palpable cord. Dr. Sharp assessed
myalgia and myositis. R. 349-50.
On December 1, 2015, Lake saw cardiologist Dr. Schwartz for a
follow up. Lake continued to smoke and limited his activity due to back
pain. He was compliant with his medication. R. 443. Lake’s heart and
pulmonary examinations were normal. His motor examinations were
normal in all extremities. Dr. Schwartz continued his medications. R. 445.
On December 3, 2014, Lake saw Dr. Sharp for hypertension. Lake’s
blood pressure control was poor and he reported headaches. His back
and neck pain were stable, and he was sleeping okay. He was taking six
hydrocodone tablets a day and not taking any muscle relaxants. He was
not adhering to his medication regimen and had no side effects from his
medication. R. 366. On examination, Lake was mildly uncomfortable. His
heart and pulmonary exams were normal, and he had 0-trace+ pretibial
pitting edema. R. 367.
On February 9, 2016, Lake saw Dr. Sharp. R. 439-41. Lake
complained of moderate elbow pain, decreased range of motion in his
elbows, and weakness in his hands. R. 439. On examination, Lake
appeared chronically ill and uncomfortable, but not acutely ill. His heart
exam was normal. During his pulmonary auscultation Dr. Sharp heard
rhonchi over the base of his left lung. Lake had bilateral restricted range of
motion on flexion and extension of his elbows. Dr. Sharp administered
steroid injections into Lake’s elbows. R. 441.
On February 26, 2016, Lake saw Dr. Sharp with allergic rhinitis and a
rash. He was not sleeping well but denied having any headaches. Dr.
Sharp discussed treatment options for the rash. R. 338.
On May 17, 2016, Lake saw Dr. Sharp. R. 413-14. Lake reported
fatigue as a side effect of his medication. On examination, Lake was
chronically ill and uncomfortable, his heart and pulmonary exams were
normal, his muscle strength and tone were normal except for 4/5 strength
in his right triceps, left biceps, and bilateral grip strength. R. 414.
On May 22, 2016, Lake completed a Function Report—Adult form.
R. 242-49. Lake lived in a mobile home with his family. He had difficulty
getting up in the morning because of his pain and sometimes took several
hours to get out of bed and get moving. He and his wife and step-daughter
took care of the family pets. His pain affected his sleep: some days he
could not sleep at all day or night, and some days he slept all the time both
day and night. Lake’s wife helped him bathe, dress, and put on his shoes
and sometimes he needed help getting off the toilet. R. 242-43. His wife
reminded him to take his pills and to shower. His wife and step-daughter
did the cooking, household chores, and yard work. He said his pain was
great and he fell randomly. R. 243-44. Lake said that he drove short
distances and that his leg went numb if he drove too far. He paid bills and
used a checkbook/money orders, but his wife oversaw paying the bills
“cause I forget a lot.” R. 245. He could not concentrate because of the
pain medication. He liked to hunt, fish, and boat, but he said that he could
not do these things after his fall and injury. He did not go places often, but
people visited him at home. His brother came over every day and he went
to church “when my body allows me.” R. 246.
Lake said that his impairments affected lifting, squatting, bending,
kneeling, standing, walking, reaching, stair climbing, concentration,
understanding, following instructions, using his hands, and getting along
with others. Lake opined that he could lift a gallon of milk and walk 100
feet before he had to stop and rest. He had difficulty following instructions
because he could not concentrate or listen due to his pain. R. 247. Lake
said that his doctor prescribed using a cane to walk and that he sometimes
used a cane depending on his pain and where he was trying to walk. R.
248. He was in constant pain after his accident and fall and had no feeling
in his fingers. He fell often and had problems dropping thing. R. 242.
On June 2, 2016, Lake had an MRI of his cervical and thoracic spine.
R. 407-08. The cervical MRI showed the prior fusion surgery, a small focal
area of cord atrophy and signal abnormality at C5 due to post compression
myelopathy, with no significant spinal stenosis or foraminal narrowing. R.
408. The thoracic MRI showed no acute abnormality or interval change
from a December 8, 2010 MRI; and multilevel spondylosis with no
compressive disc herniation. R. 407.
On July 20, 2016, Lake saw Dr. Sharp. Lake complained of neck
pain and stiffness and was using a fentanyl patch once every three days.
The patch worked on the first two days, but the pain returned on the third
day. He also reported more numbness in his hands and that he had no
side effects from his medications. R. 418. On examination, Lake was
chronically ill and uncomfortable. His heart exam was normal, and his
respiratory exam was normal. R. 420. Dr. Sharp assessed cervical
spondylosis and continued Lake’s pain medication. R. 418.
On July 28, 2016, state agency physician Dr. James Madison, M.D.,
completed a Physical Residual Functional Capacity Assessment form. R.
90-93. Dr. Madison opined that Lake could lift 20 pounds occasionally and
10 pounds frequently; stand and/or walk for six hours in an eight-hour
workday; sit for six hours in an eight-hour workday; frequently stoop, crawl,
and climb ramps and stairs; and occasionally climb ladders, ropes, and
scaffolds. R. 90-91. Dr. Madison stated that Lake was limited to
occasional reaching overhead bilaterally and should avoid concentrated
exposure to extreme heat or cold. R. 92.
On August 2, 2016, Lake saw a Licensed Clinical Social Worker
therapist Sean Miller, LCSW, for an individual therapy session. R. 513-14.
Lake’s diagnosis was chronic pain and depression with anxiety. He said
his pain had been difficult to manage lately and he ran out of pain
medication for a few days. He had been isolating and more irritable and his
pain increased the strain on his marriage. His wife got him to reevaluate
the things he had been doing lately. He said that “he is still very active on
the search and rescue team but recognizes how this impacts him long-
term.” R. 513. Lake’s mental status examination was normal, and Miller
found that Lake’s psychiatric condition was stable. R. 514.
On August 19, 2016, Lake saw nurse practitioner Mary Logsdon for
unresolved sinus pressure and pain. He reported chest congestion and
wheezing when he was lying down. R. 509. Lake’s review of symptoms
showed no headaches or dizziness. R. 510. Logsdon assessed bronchitis
and a sinus infection and prescribed an antibiotic and prednisone. R. 509.
On September 5, 2016, Lake completed a Function Report—Adult
form. R. 253-60. Lake lived in a house with his wife and step-daughter.
He had trouble sleeping because of his pain and often slept for several
hours during the day because he was exhausted from lack of sleep at
night. He dressed and fed himself. His wife shaved him and helped him in
and out of the bathtub. She sometimes helped him wipe himself on the
toilet and get up off the toilet. R. 253-54. His wife also sorted his pills and
reminded him when he needed to take them. He did not cook or do either
housework or yardwork and said that he had a 10-pound lifting restriction
and he was “very unstable with my hands and my feet.” R. 256. He
sometimes drove to his doctors’ appointments, but he usually rode because
his legs and arms went numb driving. His wife did the shopping and took
care of paying the bills. He did not pay the bills because he had trouble
focusing. R. 256. Lake tried to attend church once a month, and he
watched his step-daughter play volleyball. He used Facebook to speak
with his son in Kuwait. R. 257. He did not otherwise socialize because he
was in too much pain. R. 258.
Lake said in the Function Report that his impairments limited his
ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs,
remember, complete tasks, concentrate, understand, follow instructions,
use his hands, and get along with others. He could only lift a gallon of milk
and walk 500 feet and could not concentrate to follow instructions. He was
afraid he would “fall randomly” because his arms and legs went numb. R.
259. He could not sit for too long or stand for too long because of the pain.
R. 253. His hands and fingers were always numb, and he dropped things
constantly. R. 253. Lake said a cane was prescribed in 2015 and he used
that cane when he was in “very bad pain.” R. 259. His medicines caused
drowsiness. R. 260.
On September 6, 2016, state agency physician Dr. Sumanta Mitra,
M.D., completed Physical Residual Functional Capacity form. R. 105-08.
Dr. Mitra opined that Lake could lift 20 pounds occasionally and 10 pounds
frequently; stand and/or walk for six hours in an eight-hour workday; sit for
six hours in an eight-hour workday; frequently stoop and crawl;
occasionally climb ramps and stairs; and never climb ladders, ropes, and
scaffolds. R. 105-06. Dr. Mitra said that Lake was limited to occasional
reaching overhead bilaterally and should avoid concentrated exposure to
extreme heat; extreme cold; fumes, gases, dusts, odors, poor ventilation,
etc.; and hazardous machinery or unprotected heights. R. 106-08.
On September 23, 2016, Lake went to occupational therapy for an
initial evaluation of therapy for his elbows and upper extremities. R. 607-
11. Lake reported that his elbow pain had been worsening over the last
three years. He wore compression sleeves that provided some pain relief,
but reported sharp pain with arm use, loss of extension and flexion, and
weakness. He rated his pain during the evaluation as 8/10 and his worst
pain as 10/10. The pain was aggravated by gripping, lifting, and holding a
steering wheel and that lifting a cup of coffee was painful. He also told the
therapist, “‘l couldn't even control the steering to mow the lawn yesterday in
a rider.’” R. 607. On examination, Lake had either 4/5 or +4/5 strength in
his upper extremities. The therapist found evidence of epicondylitis (tennis
elbow) and triceps tendonitis and also noted limited range of motion in the
elbows. Given Lake’s back history, the therapist suggested a neurosurgical
consult and also recommended a course of occupational therapy. R. 608-
09.
On September 28, 2016, Lake saw his therapist social worker Miller.
Lake said that his pain was 10/10 due to a change in the climate and that
he also ran out of his pain medication and was bed ridden for five days. R.
600. On examination, Lake’s mental status was normal, and his psychiatric
condition was stable. R. 601.
On October 7, 2016, Lake’s attorney completed a Disability Report –
Appeal form for Lake. R. 264-72.4 Lake’s attorney represented on behalf
of Lake that on August 1, 2016, his elbows started locking up and after
September 1, 2016, his pain worsened and was out of control. His elbows
were worse. R. 265. He needed help dressing himself and he often did not
get out of bed because of the pain. R. 270.
On October 14, 2016, Lake went to the emergency room with neck
and left arm pain. He said that his chiropractor told him to go to the
emergency room. R. 564. On examination, Lake was not in respiratory
distress. The midline of his neck was tender, his back was non-tender, his
extremities were non-tender, and he had full range of motion in his
extremities. R. 563. Emergency room personnel ordered elbows x-rays
and a cervical spine CT scan. The x-rays showed osteoarthritis in both
elbows with no fracture, and intraarticular loose bodies could not be
4 The form is undated. The index to the exhibits states that the form was dated October 7, 2016.
excluded. R. 568-69. The CT scan showed multilevel degenerative
changes and facet arthropathy; vertebral body heights were preserved; no
evidence of fracture or malalignment; the central canal was patent; and the
paraspinal soft tissue was normal. The CT scan showed no osseous
abnormalities. R. 570. The emergency room nurse practitioner assessed
cervical radiculopathy. Lake was discharged when his condition improved.
R. 563.
On October 19, 2016, Lake saw Dr. Sharp. R. 571-76. Lake
reported worsening pain in his neck, back, and upper and lower
extremities. The pain was about the same on the right and worse on the
left and he had increased tingling in his arms and legs, but no weakness or
numbness. He told Dr. Sharp that within the last five days he went to a
chiropractor, but the session did not relieve his pain, and then went the
emergency room. The emergency personnel gave him Dilaudid, but the
medication did not reduce his pain. He was adherent to his medication
regimen and had no side effects. R. 571. On examination, Lake had 4/5
strength in his upper extremities, except for normal left intrinsic finger
strength and 5/5 strength in his left fingers flexion and his spine exam had
a positive Hoffman test bilaterally. Lake had 4/5 strength in his lower
extremities except for some 5/5 strength in his feet and great toes. Straight
leg raising testing was negative. He had intact sensation and Romberg’s
sign was negative. R. 573.
On October 25, 2016, Lake saw psychiatrist Dr. Valentina Vrtikapa,
M.D. R. 594-96. Lake reported that he was stable and doing well and had
chronic pain. R. 594. His mental status examination was normal, and his
psychiatric condition was stable. R. 595. Dr. Vrtikapa assessed
depression with anxiety and continued Lake’s prescribed treatment. R.
595-96.
On October 27, 2016, Lake had EMG/nerve conduction studies done
of his upper and lower extremities. R. 695-96. A week before, Lake’s left
arm suddenly went numb and he lost grip strength in his left arm. Lake had
continuing problems with back pain and balance problems and reported
that he had difficulty going up and down stairs. The EMG/nerve conduction
studies showed bilateral median entrapment neuropathies at the wrists
indicating possible carpal tunnel syndrome, and possible sensory and mild
motor neuropathies in the lower extremities that could suggest
polyneuropathies. R. 696.
On October 31, 2016, Lake was discharged from occupational
therapy for non-attendance as he stopped going to sessions within two
weeks of the September 23, 2016, initial evaluation. R. 615-16.
On November 22, 2016, Lake saw Dr. Sharp. R. 690-94. Lake
reported continued stable upper back pain, lower back pain, and lower
extremity pain. He denied any lower extremity paresthesia or lower
extremity weakness. He reported difficulty sleeping, fatigue, upper
extremity weakness, and pain in his elbow. Lake was not adherent to his
medication regimen and denied any side effects from his medication. He
said he was not getting good pain control and that lorazepam helped with
sleep. He did not need the lorazepam on a regular basis. R. 691. On
examination, Lake was uncomfortable. He had a normal heart and
pulmonary exam. Both elbows were tender and had limited ranges of
motion, with the right worse than the left. R. 693. Dr. Sharp adjusted
Lake’s medication and discussed physical therapy options. R. 690-91.
On January 13, 2017, Lake had a chest x-ray which showed thoracic
spondylosis but no radiographic evidence of acute cardiopulmonary
disease. R. 719.
On February 24, 2017, Lake saw cardiology nurse practitioner
Rachana Adhikari, NP, for cardiac clearance to have hernia surgery. R.
673-77. Lake said that he suffered injuries when he fell 25 feet off a truck.
He has not been active since then, but was trying to be as active as he
could. He could walk 500 to 600 feet before his legs gave out on him. He
said he went to a club and walked up and down the stairs at the club. He
did 25 stairs three times a week. He experienced no chest pain or
shortness of breath from walking the stairs. R. 673. On examination, his
heart and pulmonary exams were normal and he had a normal gait.
Adhikari determined that he could proceed with the hernia surgery. R. 677.
On March 8, 2017, Lake saw Dr. Sharp, the day before his scheduled
hernia surgery. R. 669-72. Lake reported back pain, lower extremity pain,
and lower extremity paresthesia. His lower back pain was moderately
worse. Due to the pain, he could only be active for five minutes at a time.
He did laundry but kept the loads under ten pounds. He also had elbow
pain and upper extremity paresthesia. His average pain was 8/10 and his
maximum pain was 10/10. He adhered to his medication regimen and
reported side effects of constipation and difficulty falling asleep. The
medication was not controlling his pain, and he was running out of pain
medication. R. 669. On examination, Lake was chronically ill and
uncomfortable. His heart and pulmonary exams were normal. Dr. Sharp
increased the dosage on Lake’s fentanyl patch. R. 670.
On March 15, 2017, Lake saw cardiac nurse practitioner Rachana
Adhikari, NP. Lake saw Adhikari for a follow up after a heart
catheterization. R. 660-64. Lake had a heart attack while in the hospital
for his hernia surgery, and Dr. Schwartz had performed the catheterization
and inserted seven additional stents into his heart. R. 657, 660, 664.
Adhikari noted that “surprisingly” Lake had preserved ejection fraction and
no significant wall abnormality. Adhikari scheduled Lake for cardiac rehab
and also praised Lake for not smoking after his hospitalization for the heart
attack. R. 664.
On March 22, 2017, Lake was seen by his surgeon Dr. Emmanuel
Bessay, M.D., two weeks after his hernia surgery and cardiac
catheterization and placement of stents. He reported he was doing well.
He was ambulating without difficulty and was returning to his activities of
daily living. R. 657. On examination, Lake’s heart rate and breathing were
normal. His incision from the surgery was healing and his neurological
examination was normal. R. 658.
On April 18, 2017, Lake saw Dr. Sharp. R. 653-56. Lake said his
fatigue was stable and when he engaged in mild exertion, he became
fatigued later in the day. His pain was unchanged and more activity
required more pain medication which increased his fatigue. He was
hunting and tripped and fell on the back of his head. He did not report any
loss of consciousness. On examination, Dr. Sharp said that Lake was
chronically ill and uncomfortable. His cardiovascular and pulmonary exams
were normal. R. 653.
On June 14, 2017, Lake saw Dr. Sharp. R. 650-52. Lake had fallen
in his shed and landed on his side on a toolbox. He had some shortness of
breath, but denied any pain, weakness, or paresthesia in his upper
extremities “although he has a significant amount of these chronically.” R.
650. On examination, Lake was uncomfortable and had tenderness on his
left lateral ribs and thoracic tenderness at T5-T9. R. 650. X-rays taken on
June 15, 2017, showed no acute cardiopulmonary processes, no left-sided
displaced rib fracture, and no pneumothorax. R. 725.
On June 28, 2017, Lake saw Dr. Andrew Dunn, D.O., to establish
care as his new primary care physician. Lake wanted to discuss pain
medication alternatives. He said that hydrocodone and fentanyl were not
working. R. 645. His pain varied from sharpness to numbness and stayed
at the 8/10 level most days. R. 645. On examination, Lake’s
cardiovascular and pulmonary functions were normal and his cervical spine
had a loss of normal lordosis, and flexion, extension, and rotation of the
neck was painful in all directions. Lake’s neck had motor weakness on
extension and flexion. Spurling’s maneuver was positive.5 Lake’s reflexes
were symmetric, his upper motor exam was abnormal, and his lower motor
exam was normal. R. 646. Dr. Dunn assessed fibromyalgia and cervical
radiculopathy. Dr. Dunn and Lake discussed use of medical marijuana as
an alternative treatment. R. 647.
On July 25, 2017, Dr. Dunn completed a Medical Source Statement
form. R. 602-05. Dr. Dunn opined that Lake could only lift less than 10
pounds, stand and walk for less than two hours in an eight-hour workday,
and sit for less than two hours in an eight-hour workday. Dr. Dunn opined
that Lake could sit for five minutes before he had to change positions, and
he could stand for five minutes before he had to change positions. He said
that Lake could walk for five minutes at a time, and he said that Lake was
up and down constantly. Lake needed to be able to change positions at
will, and he would need to lie down several times during an eight-hour
workday. Dr. Dunn stated that the medical findings that supported these
opinions were Lake’s post compressive myelopathy, bilateral upper
extremity pain and weakness, and 4/5 strength. R. 602.
5 Spurling’s maneuver is a test for radiculopathy in which the physician presses down on the head while
the patient rotates the head laterally. See Dorland’s, at 1900.
Dr. Dunn further stated that Lake could never twist, stoop, crouch, or
climb ladders, and could occasionally climb stairs. Dr. Dunn stated that the
medical findings that supported these opinions were diagnoses of spinal
stenosis and arachnoiditis. R. 603.6 He opined that Lake could
occasionally reach, handle, and finger; but Lake could never feel or
push/pull with any of his extremities. The medical findings that supported
these opinions were Lake’s post cervical compressive myelopathy and 4/5
upper extremity strength. R. 603. Dr. Dunn said that Lake must avoid all
exposure to extreme heat, extreme cold, high humidity, fumes, odors,
dusts, gases, soldering fluxes, solvents, cleaners, and chemicals; and must
avoid moderate exposure to perfumes. R. 604. He further opined that if
Lake went to work he would need to be absent from work more than four
days a month, would need to be off-task more than 25 percent of the time
while he was at work, and would need to take unscheduled breaks “very
frequently.” Lake needed the additional unscheduled breaks due to muscle
weakness; chronic fatigue; pain, paresthesia, and numbness; adverse
effects of his medication; and his need to lie down frequently. R. 604-05.
Dr. Dunn stated, “Patient really can’t work due to the disability he has and
6 Spinal arachnoiditis is thickening and adhesions on the leptomeninges membrane covering the spinal
cord. See Dorland’s, at 123.
medication he is on.” Lake became disabled before his Onset Date,
“Actually became disabled on 12-5-2010 when patient fell and was put in
an MRI and found neck and back broken and protruding through spinal
cord! Along with broken ankle and torn muscles and ligaments in his leg.”
R. 605 (emphasis in the original).
On August 9, 2017, Lake saw therapist Miller. Lake was waiting to
get his medical marijuana card and reported that he recently went on a trip.
While on the trip, he had been in substantial pain and felt “foggy.” He
attributed the foggy feeling to his pain medication. R. 731. Lake’s mental
status examination was normal, and his psychiatric condition was stable.
R. 731-32.
On August 24, 2017, Lake saw cardiology nurse practitioner Rachana
Adhikari, NP, for a six month follow up after the March 2017 cardiac
catheterization and insertion of seven stents. Lake said that his pain
medication “messes him up” and reported that he had no energy, slept
more, and fell randomly. He said that Dr. Dunn prescribed medical
marijuana, and he was waiting for state approval. R. 640. On examination,
Lake was 5 feet 8 inches tall, weighed 236 pounds and had a BMI of 35.88.
The physical examination was normal. R. 643. Adhikari assessed
atherosclerotic heart disease of the native coronary artery disease without
angina pectoris and said that Lake should continue his current treatment.
Adhikari noted that Lake had 13 stents and “surprisingly” his heart had a
preserved ejection fraction with no significant wall abnormality. R. 644.
On September 12, 2017, Lake saw therapist Miller. He reported that
he had not had any pain for a few days after smoking marijuana. Miller
stated that Lake was doing well with the addition of medical marijuana.
Lake’s mental status examination was normal, and his psychiatric condition
was stable. R. 729.
On September 13, 2017, Lake saw Dr. Dunn. R. 636-39. Lake said
that his back pain was 9/10 and “he just came from the river and hitching
up his boat and his back hurts.” He asked about the possibility of a back
brace. He used one in the past and it helped. Lake reported that he had
not smoked marijuana “very much that day” and marijuana “usually really
helps” with the pain. He wanted a reduction in the strength of his fentanyl
patch. R. 636.
On examination, Lake’s cardiovascular and pulmonary exams were
normal. His cervical spine exam showed a loss of lordosis; muscle spasms
on palpation on the left; pain with flexion, extension, and rotation;
weakness on flexion and extension; and a positive Spurling’s maneuver.
Lake’s reflexes were symmetric and he had an abnormal upper motor
exam and a normal lower motor exam. Dr. Dunn assessed lumbar
spondylosis and recommended an LSO brace. He would reduce the
dosage on Lake’s fentanyl patch on the next refill. R. 636.
On September 27, 2017, Lake saw dr. Dunn. R. 631-35. Lake
reported that both of his thumbs locked when grabbing objects and
reported, “Pain is better on cannabis. More active. Has been shooting his
Bow more. Life is overall better he tells me. Happy.” R. 631. On
examination, Lake’s neck was supple, his pulmonary and cardiovascular
examinations were normal, his upper motor examination as abnormal, and
his lower motor examination was normal. R. 632. Dr. Dunn said he would
lower the fentanyl dosage on the next refill and recommended braces for
both of Lake’s thumbs. R. 633.
On December 28, 2017, Lake saw Dr. Dunn. R. 739-43. Lake
reported, “Pain is okay at this time.” His pain was 5/10 most days and he
was using cannabis for the pain. He did not want to refill his fentanyl
prescription. R. 739. On examination, his cardiovascular and pulmonary
examinations were normal. His cervical examination showed a loss of
lordosis; left sided muscle spasms on palpation; pain with extension,
flexion, and rotation; weakness on extension and flexion; and a positive
Spurling’s Maneuver. R. 741. Dr. Dunn assessed cervical radiculopathy
and continued to taper off Lake’s fentanyl dosage. R. 741.
The Evidentiary Hearing
On June 18, 2018, an Administrative Law Judge (ALJ) conducted an
evidentiary hearing in Lake’s case. R. 32-72. Lake appeared in person
and with his attorney. Vocational expert Julie Svec also appeared by
telephone. R. 34.
Lake testified first that he had a GED and had not worked since his
Onset Date October 1, 2014. He stopped working when he fell off a truck
and broke his neck, mid back, and low back (the Accident). Lake lived with
his wife and step-daughter in a mobile home and also had two adult
children ages 22 and 24. He was five feet eight inches tall and weighed
228 pounds and was two and one-half inches shorter than he used to be.
The doctors attributed the height loss to spinal stenosis and degenerative
disc disease. He had put on 30 pounds since October 1, 2014. Lake
gained weight because he could not do anything. R. 40-41.
Lake had constant headaches since the Accident. Every day he
experienced nausea with these headaches and vomited at least once or
twice a day. He treated his headaches with his back pain medication and
by lying down. R. 43.
He had problems moving his neck after the Accident and his neck
was hard to rotate side to side and even harder to move up and down. He
turned his body to look to the side rather than turning his neck. If he tried
to turn his neck, “It just stops.” He experienced pain “like pins and needles”
when he turned his head. R. 44. It was harder to try to look up than down.
When he tried to look up, his neck “just stops, and there’s instant pain.” R.
45.
Lake testified that he had constant pain in his neck since the Accident
and described the pain as stabbing and burning and never went away. The
pain radiated down his spine and down his right arm and the radiating pain
into his right arm was constant. He had the radiating pain ever since the
Accident. The pain went into his shoulder and all the way down to his right
fingertips. The pain was “[b]urning, aching, stabbing, pins and needles.”
He also had numbness and tingling in his right arm and no feeling in is right
fingertips. Lake was right-handed. He dropped things because of the loss
of feeling and he attributed the loss of feeling in his fingers to his “spinal
cord injury.” The pain from anyone touching or bumping into his right arm
was “excruciating.” R. 46-47.
Lake could not extend his right arm forward or reach overhead
because of the pain. He could raise his right arm “a little bit” out to the
side, but if he moved his arm too far, he experienced “Just constant pain.
Shrieking pain.” His condition existed from his Onset Date to his Last Date
Insured. R. 47.
Lake had no functional difficulties with his left upper extremity. R. 47.
The pain in his back was “[c]onstant, burning, aching, nauseating pain.” R.
48. The pain in his back radiated down into his right hip and right leg. R.
47. He right leg and hip felt “[n]umb, tingling, aching, pins and needles.”
He fell several times a week due to the numbness and pain in his right hip
and leg, which was constant. R. 48. HIs pain interfered with his sleep and
woke him up about five or six times a night. He took more pain pills and
muscle relaxers and tried to go back to sleep. R. 49-50.
Lake treated his pain with medication, ice, and a TENS unit. At the
time of the hearing he took hydrocodone and smoked marijuana for pain.
The hydrocodone made him feel “tired, drowsy, nauseated, not being able
to think straight.” R. 55. He used the TENS unit and the ice on his middle
and low back. He used the TENS unit every evening from his Onset Date
to his Date Last Insured and used ice a couple of times during the day,
three to four times a week. R. 51.
Lake also lay down because of the pain. During a typical eight-hour
workday, Lake spent four to five hours lying down and took naps every day
while he was lying down. His naps lasted two to three hours “a day at a
time.” He was asleep four to five hours during a typical workday from 9:00
a.m. to 5:00 p.m. R. 52.
Lake had a heart attack in 2009 and had a stent put into his heart.
He said, however, that between his Onset Date and his Last Date Insured,
he did not have any cardiac problems. R. 53. He used nitroglycerin
medication “maybe five times” from his Onset Date to his Last Date
Insured. He used nitroglycerin when his chest pain became “excruciating”
and he felt “sweating coming on” and nauseated. R. 54.
Lake drove to the doctor went he felt up to it. If he felt bad enough,
his wife drove him. He did not feel up to driving three to four times a week
and could only drive for 15 minutes because his right leg went numb. The
right leg went numb in 15 minutes even if he was just riding in a car. R. 57-
58. Lake did not shop or do housework and he needed help from his wife
to get dressed. She also helped him get in and out of the shower, and she
helped him in the shower by scrubbing his back and his head. R. 58.
Lake said that he could sit for five to 10 minutes, walk for five
minutes, and stand for five minutes. A gallon of milk was the heaviest
weight he could lift. R. 59. His pain on average was 7/10 and 20 times a
month the pain went higher than 7/10. He said, “When it flares up, I go to
the emergency room, or I do everything I can to get out of pain.” R. 61.
Lake said, however, that he did not go to the emergency room 20 times a
week. R. 62.
Vocational specialist Svec then testified. Lake had no objections to
Svec testifying as a vocational expert. R. 65. Svec stated that Lake had
past relevant work as a driver. R. 66. The ALJ asked Svec the following
hypothetical question:
I want you to assume an individual the claimant’s age,
education, work experience who's going to be able to perform
sedentary work as that’s defined by the regulations. Now, once
again, this individual is never going to be able to push or pull
with the bilateral upper extremities. All right, now this individual
is never going to be able to climb ladders, ropes, or scaffolds,
and this individual is only going to be able to occasionally climb
ramps or stairs. And can occasionally balance on narrow,
slippery, or erratically moving surfaces. Individual can
occasionally stoop and crouch, and never kneel and never
crawl. This individual can frequently rotate, flex, or extend the
neck, but this individual should have no overhead reaching
bilaterally. But this individual can frequently handle objects,
that is gross manipulation bilaterally. This individual can
frequently finger, that is fine manipulation by objects that are no
smaller in size than a paper clip, bilaterally. And this individual
can frequently feel bilaterally. Now, this individual should have
no use of hazardous machinery. No exposure to unshielded
moving mechanical parts. No driving a motor vehicle as part of
the work function, and no exposure to unprotected heights.
This individual is only going to be able to remember,
understand, and carry out only simple and routine instructions
and tasks. . . . Now, could such an individual with any of these
limitations perform any work in the national economy?
R. 66-67. Svec opined that such a person could perform some sedentary
jobs in the national economy. The person could perform jobs, such as
charge clerk, with 150,000 such jobs existing nationwide; telephone clerk,
with 78,000 such jobs existing nationwide; and document preparer, with
86,000 such jobs existing nationwide. R. 67.
The person could not work if his impairments caused him either to be
absent from work twice a month consistently or off-task 15 percent of the
time at work. R. 68. The person also could not work if he had an additional
limitation that prohibited repetitive rotation, flexion, or extension of the neck.
R. 69. The person further could not work if he could only occasionally
reach, handle and finger, but could never feel with the upper extremities.
R. 70. The hearing concluded.
THE DECISION OF THE ALJ
On October 29, 2018, the ALJ issued his decision. R. 15-26. The
ALJ followed the five-step analysis set forth in Social Security
Administration Regulations (Analysis). 20 C.F.R. §§ 404.1520, 416.920.
Step 1 requires that the claimant not be currently engaged in substantial
gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If true, Step 2
requires the claimant to have a severe impairment. 20 C.F.R. §§
404.1520(c), 416.920(c). If true, Step 3 requires a determination of
whether the claimant is so severely impaired that he is disabled regardless
of his age, education and work experience. 20 C.F.R. §§ 404.1520(d),
416.920(d). To meet this requirement at Step 3, the claimant's condition
must meet or be equal to the criteria of one of the impairments specified in
20 C.F.R. Part 404 Subpart P, Appendix 1 (Listing). 20 C.F.R. §§
404.1520(d), 416.920(d). If the claimant is not so severely impaired, the
ALJ proceeds to Step 4 of the Analysis.
Step 4 requires the claimant not to be able to return to his prior work
considering his age, education, work experience, and Residual Functional
Capacity (RFC). 20 C.F.R. §§ 404.1520(e) and (f), 416.920(e) and (f). If
the claimant cannot return to his prior work, then Step 5 requires a
determination of whether the claimant is disabled considering his RFC,
age, education, and past work experience. 20 C.F.R. §§ 404.1520(g),
404.1560(c), 416.920(g), 416.960(c). The claimant has the burden of
presenting evidence and proving the issues on the first four steps. The
Commissioner has the burden on the last step to present evidence that,
considering the listed factors, the claimant can perform some type of
gainful employment that exists in the national economy. 20 C.F.R. §§
404.1512, 404.1560(c); Weatherbee v. Astrue, 649 F.3d 565, 569 (7th Cir.
2011); Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005).
The evidence also had to show that Lake was disabled before his
Date Last Insured, December 31, 2016, to be entitled to Disability Benefits
under Title II of the Social Security Act. See Martinez v. Astrue, 630 F.3d
693, 699 (7th Cir. 2011).
The ALJ found that Lake met his burden at Steps 1 and 2 of the
Analysis. Lake was not engaged in substantial gainful activity, and he
suffered from the severe impairments of degenerative disc disease status
post-cervical fusion with radiculopathy and myelopathy, osteoarthritis,
elbow degenerative joint disease, bilateral trigger thumbs, fibromyalgia,
chronic pain syndrome, polyneuropathy, coronary artery disease and
ischemic heart disease status post multiple stent placements, and obesity.
R. 17. The ALJ found that Lake’s impairments or combination of
impairments did not meet or equal any Listing. T. 18-19.
The ALJ then determined that Lake had the following RFC:
5. After careful consideration of the entire record, the
undersigned finds that, through the date last insured, the
claimant had the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) except he
could never push or pull with the bilateral upper extremities. He
could never kneel, crawl, or climb ladders, ropes, and scaffolds,
but could occasionally climb ramps and stairs, stoop, crouch,
and balance on narrow, slippery, or erratically moving surfaces.
He could frequently rotate, flex, or extend the neck, but could
not perform overhead reaching bilaterally. Bilaterally, he could
handle objects (that is, gross manipulation) frequently, finger
objects (that is, fine manipulations of items no smaller than the
size of a paperclip) frequently, and feel frequently. He could
have no use of hazardous machinery, no exposure to
unshielded moving mechanical parts or unprotected heights,
and no driving of motor vehicles as part of the work function.
He could remember, understand, and carry out only simple and
routine instructions and tasks . . . .
R. 19. The ALJ found that the medical evidence of Lake’s back
impairments and cardiac impairments supported a finding that he could
only perform a limited range of sedentary work. Sedentary work involves
lifting no more than 10 pounds, occasionally carrying articles like files and
small tools, and standing and/or walking two hours in an eight-hour
workday. See 20 C.F.R. § 404.1567(a); SSR 83-10, 1983 WL 31251, at *5
(January 1, 1983). The ALJ found that the medical evidence did not
support a more limited RFC. The ALJ relied on medical examinations that
found normal motor function, normal muscle tone, full range of motion,
negative straight leg testing, negative Romberg’s sign, and intact
sensation. R. 20-21. The ALJ also noted that Lake treated his pain
“conservatively with medications, elbow compression bands, elbow
injections, ice, heat, elbow physical therapy, and recommendations to lose
weight to help reduce discomfort and increase range of motion and
strength.” R. 22.
The ALJ further found that Lake’s testimony of more severe
limitations was not consistent with the other evidence in the record. The
ALJ noted medical records in which Lake denied having headaches. The
ALJ also noted that Lake’s testimony was inconsistent with his statements
in the Function Reports and to his healthcare providers. The ALJ noted
that Lake stated in his Function Reports that he drove, went out alone, paid
bills, received visitors daily, tried to attend church monthly, watched his
step-daughter’s volleyball games, did small loads of laundry, and used
Facebook. He also told his healthcare providers that he mowed his lawn
with a riding mower; engaged in boating, hunting, and shooting a bow; and
remained very active in a search and rescue team. R. 22. The ALJ
concluded:
Such reports tended to suggest greater physical and mental
abilities than claimed. His reported need to use a cane, lie
down or nap 4-5 hours a day, stay in bed several days a week,
and have his family help with personal care, pet care, all
cooking, all chores, and all shopping were not entirely
consistent with the record as a whole.
R. 22.
The ALJ gave little weight to Dr. Dunn’s Medical Source Statement.
The ALJ found that it was inconsistent with the medical records and noted
that Dr. Dunn said in his Medical Source Statement that Lake had
arachnoiditis, but no medical record mentioned arachnoiditis. Dr. Dunn’s
opinions of functional limitation were inconsistent with Lake’s “minimal
complaints of side effects to providers, exams showing an alert
presentation with intact cognition, reports of managed pain with
conservative treatment measures, and activities of daily living, including
hunting and boating before and after the established onset date.” The ALJ
also found that the ultimate question of disability was reserved to the
Defendant Commissioner. R. 24.
The ALJ also gave little weight to the opinions of state agency
doctors Madison and Mitra. Those doctors opined that Lake could engage
light work, rather than the limited range of sedentary work that the ALJ
found in the RFC. The ALJ said that Lake’s condition would not support a
finding of an ability to engage in light work, “Rather, the record as a whole
suggests the claimant is capable of no more than a limited range of
sedentary work.” The ALJ similarly gave little weight to Dr. Sharp’s 20-
pound lifting limit in March 2015. The ALJ found that the evidence
“supported greater difficulties in lifting and carrying than what Dr. Sharp
found.” R. 24.
The ALJ found at Step 4, that Lake could not perform his past
relevant work as a driver. At Step 5, the ALJ found that Lake could perform
a significant number of jobs in the national economy. The ALJ relied on the
Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2,
and the opinions of vocational expert Svec. The ALJ found that Lake could
perform existing sedentary jobs such as Svec’s representative examples of
charge account clerk, telephone clerk, and document preparer. The ALJ
concluded that Lake was not disabled through his Date Last Insured. R.
26.
Lake appealed. On November 4, 2019, the Appeals Council denied
Lake’s request for review. The opinion of the ALJ then became the final
decision of the Defendant Commissioner. R. 1. Lake then brought this
action for judicial review.
ANALYSIS
This Court reviews the Decision of the Commissioner to determine
whether it is supported by substantial evidence. Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate”
to support the decision. Richardson v. Perales, 402 U.S. 389, 401 (1971).
This Court must accept the findings if they are supported by substantial
evidence and may not substitute its judgment or reweigh the evidence.
Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003); Delgado v. Bowen, 782
F.2d 79, 82 (7th Cir. 1986). This Court will not review the ALJ’s evaluation
of statements regarding the intensity, persistence, and limiting effect of
symptoms unless the evaluation is patently wrong and lacks any
explanation or support in the record. See Pepper v. Colvin, 712 F.3d 351,
367 (7th Cir. 2014); Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008);
SSR 16-3p, 2017 WL 5180304, at *1 (October 25, 2017) (The Social
Security Administration no longer uses the term credibility in the evaluation
of statements regarding symptoms). The ALJ must articulate at least
minimally his analysis of all relevant evidence. Herron v. Shalala, 19 F.3d
329, 333 (7th Cir. 1994). The ALJ must “build an accurate and logical
bridge from the evidence to his conclusion.” Clifford v. Apfel, 227 F.3d 863,
872 (7th Cir. 2000).
The decision of the ALJ was supported by substantial evidence. The
ALJ limited Lake to a limited range of sedentary work in light of his back
injury and other severe impairments. That decision was supported by the
medical records which showed significant impairment of his spine and
elbows. Several medical records, however, also showed normal strength
or near normal strength, full range of motion, negative straight leg lifting
tests, intact sensation, and normal mental status examinations. The ALJ
struck a balance between the evidence of impairment and the evidence of
residual capability by assigning an RFC that was limited to some, but not
all, sedentary work. A reasonable person might accept this evidence on
which the ALJ relied to reach his conclusions. See Richardson, 402 U.S. at
401. The decision was supported by substantial evidence.
Lake argues that the ALJ erred in his evaluation of Dr. Dunn’s
opinion. Lake argues that the ALJ should have given Dr. Dunn’s opinions
controlling weight. The ALJ must give the opinions of a treating physician
controlling weight if the opinions are supported by objective evidence and
are not inconsistent with other evidence in the record. 20 C.F.R. §
404.1527(d)(2); Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008).7
In this case, Dr. Dunn had seen Lake only one time before he opined
on Lake’s functional capabilities. Dr. Dunn’s first visit with Lake was June
28, 2017, approximately six months after the Date Last Insured. Dr. Dunn
was barely a treating physician when he rendered the opinions, and he was
not a treating physician before the Date Last Insured. Moreover, the ALJ
explained how Dr. Dunn’s opinions were inconsistent with the evidence in
the record. The ALJ explained that no evidence in the medical records
supported Dr. Dunn’s assertion that Lake had a diagnosis of spinal
arachnoiditis. The ALJ further cited to specific examples of Lake’s activities
before the Date Last Insured that were inconsistent with Dr. Dunn’s
opinions. This case is not like the case on which Lake relies, Brown v.
7 The Commissioner amended the regulations regarding the interpretations of medical evidence. The
amendments, however, apply prospectively to claims filed on or after the amendment’s effective date of
March 27, 2017. Revisions to Rule Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01,
at 5844-45 (January 18, 2017). As such, the amendments do not apply here.
Colvin, 845 F.3d, 247, 253 (7th Cir. 2016). The ALJ in Brown did not cite
evidence that contradicted the doctor’s opinions. Here, the ALJ cited
contradictory evidence. Lake also argues that the ALJ erred by giving
great weight to the opinions of state agency physicians, while giving little
weight to Dr. Dunn’s opinions. Lake is mistaken. The ALJ gave little
weight to the opinions of state agency physicians Drs. Madison and Mitra
as well as those of Dr. Dunn. The ALJ did not err in his evaluation of Dr.
Dunn’s opinions.
Lake argues that the ALJ erred in his treatment of Lake’s testimony.
The Court again disagrees. The ALJ’s decision to give little weight to
Lake’s testimony was also supported by the evidence. Lake testified that
he had constant headaches, threw up every day, slept four to five hours a
day, and did virtually nothing else. The ALJ noted that Lake’s statements
were inconsistent with the medical records of instances in which Lake
denied having headaches. The ALJ noted that Lake’s testimony was
inconsistent with his statements in his Function Reports and to his
healthcare providers. Lake said in the Function Reports that he went out
alone, paid bills, received visitors daily, went to church periodically, went to
his step-daughter’s volleyball games, used Facebook, and did light loads of
laundry. Lake told healthcare providers that he hunted, boated, and
worked on a search and rescue team. The inconsistencies supported the
ALJ’s decision to give Lake’s testimony little weight, “[I]f an individual's
statements about the intensity, persistence, and limiting effects of
symptoms are inconsistent with the objective medical evidence and the
other evidence, we will determine that the individual's symptoms are less
likely to reduce his or her capacities to perform work-related activities.”
SSR 16-3p, at *8. There was no error.
In his reply, Lake argues that Dr. Kukkar’s 2014 review of an MRI,
which showed severe degenerative disc disease in Lake’s lumbar spine,
was objective evidence of the severe pain that Lake suffered. The ALJ
considered the MRI and further cited Dr. Kukkar’s recommendation that
Lake take the over-the-counter medication Aleve for pain rather than
hydrocodone and avoid surgery as long as possible. R. 21. Dr. Kukkar’s
recommendations to take Aleve and avoid surgery provided substantial
evidence for the ALJ’s determination that Lake’s symptoms of pain were
not as severe as Lake represented.
Lake lastly argues that the ALJ’s RFC determination was not
supported by substantial evidence. Lake essentially wants the Court to
reweigh the evidence and give more weight to Dr. Dunn’s opinions. The
Court will not reweigh the evidence. Jens, 347 F.3d at 212; Delgado, 782
F.2d at 82. The ALJ is the finder of fact. He considered all the relevant
evidence and decided the weight to be given to the evidence. He minimally
explained the basis for that decision. The Court will not reverse the factual
findings. There was no error.
THEREFORE, IT IS ORDERED THAT Defendant Commissioner of
Social Security’s Motion for Summary Affirmance (d/e 16) is ALLOWED;
Plaintiff Jeffrey E. Lake’s Brief in Support of Motion for Summary Judgment
(d/e 12) is DENIED; and the decision of the Commissioner is AFFIRMED.
THIS CASE IS CLOSED.
ENTER: March 8, 2021
s/ Tom Schanzle-Haskins
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE