The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARJORIE I. B.,1 )
)
Plaintiff, )
)
v. ) Case No. 19-cv-797-RJD2
)
COMMISSIONER of SOCIAL SECURITY, )
)
Defendant. )
)
MEMORANDUM AND ORDER
DALY, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), Plaintiff, represented by counsel, seeks judicial
review of the final agency decision denying her application for Disability Insurance Benefits (DIB)
pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff first applied for disability benefits in September 2010, originally alleging
disability as of December 9, 2007. (Tr. 136). She later amended her alleged onset date to August
14, 2008. (Tr. 107). After holding an evidentiary hearing, an ALJ issued a partially favorable
decision on July 27, 2012, finding Plaintiff disabled as of February 5, 2010, but not before. The
timeframe at issue became August 14, 2008, through February 4, 2010, for the rest of the
proceedings. (Tr. 13-23). The Appeals Council denied review. (Tr. 1). Plaintiff then filed a
complaint in this Court, and this Court found for Plaintiff in January 2014. (Tr. 777-798). The
1 In keeping with the court’s practice, Plaintiff’s full name will not be used in this Memorandum and Order due to
privacy concerns. See, Fed. R. Civ. P. 5.2(c) and the Advisory Committee Notes thereto.
2 This case was assigned to the undersigned for final disposition upon consent of the parties pursuant to 28 U.S.C.
§636(c). See, Docs. 12 & 23.
ALJ held another evidentiary hearing and issued an unfavorable decision on September 2, 2015.
(Tr. 817-830). The Appeals Council granted review and remanded the decision back to the ALJ.
(Tr. 1056-1057).
A third evidentiary hearing was held, and on October 11, 2016, the ALJ found Plaintiff
was not disabled from August 14, 2008, to February 4, 2010. (Tr. 705-720). The Appeals Council
denied review. (Tr. 695-698). Plaintiff then filed a complaint in this Court, and this Court
remanded back to the ALJ on June 19, 2018, directing the ALJ to discuss both supportive and
undermining evidence. (Tr. 1160-1185). After holding an evidentiary hearing on February 27,
2019, the ALJ issued an unfavorable disability decision on April 3, 2019. (Tr. 1056-1057). Sixty-
one days later, this became the final decision on June 3, 2019. This action was timely filed on July
23, 2019. (Doc. 1). Administrative remedies have been exhausted and a timely complaint was
filed in this Court.
Issues Raised by Plaintiff
Plaintiff raises the following points:
1. The ALJ erred by failing to address important evidence that contradicts his finding that
Plaintiff was not disabled prior to February 5, 2010.
2. The ALJ erred by finding Plaintiff’s statements about the intensity, persistence, and
limiting effects of her symptoms are not entirely consistent with the medical evidence
and other evidence.
3. The ALJ erred in his analysis of the opinion evidence.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of the applicable
statutes. Under the Social Security Act, a person is disabled if she has an “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(a).
To determine whether a plaintiff is disabled, the ALJ considers the following five questions
in order: (1) Is the plaintiff presently unemployed? (2) Does the plaintiff have a severe impairment?
(3) Does the impairment meet or medically equal one of a list of specific impairments enumerated
in the regulations? (4) Is the plaintiff unable to perform her former occupation? and (5) Is the
plaintiff unable to perform any other work? 20 C.F.R. § 404.1520.
An affirmative answer at either step three or step five leads to a finding that the plaintiff is
disabled. A negative answer at any step, other than at step three, precludes a finding of disability.
The plaintiff bears the burden of proof at steps one through four. Once the plaintiff shows an
inability to perform past work, the burden then shifts to the Commissioner to show that there are
jobs existing in significant numbers in the national economy which plaintiff can perform.
Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001).
It is important to recognize that the scope of review is limited. “The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive. . . .” 42 U.S.C. § 405(g). Thus, this Court must determine not whether Plaintiff was,
in fact, disabled at the relevant time but whether the ALJ’s findings were supported by substantial
evidence and whether any errors of law were made. Lopez ex rel. Lopez v. Barnhart, 336 F.3d
535, 539 (7th Cir. 2003). The Supreme Court’s definition of substantial evidence is, “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v.
Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted).
In reviewing for “substantial evidence,” the entire administrative record is taken into
consideration, but this Court does not reweigh evidence, resolve conflicts, decide questions of
credibility, or substitute its own judgment for that of the ALJ. Burmester v. Berryhill, 920 F.3d
507, 510 (7th Cir. 2019). However, while judicial review is deferential, it is not abject; this Court
does not act as a rubber stamp for the Commissioner. See, Parker v. Astrue, 597 F.3d 920, 921
(7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
The ALJ followed the five-step analytical framework described above. He determined that
Plaintiff had not worked at the level of substantial gainful activity between August 14, 2008, the
amended alleged onset date, through February 4, 2010, or through her date last insured of
December 31, 2012.
Regarding the period of August 14, 2008 through February 4, 2010, the ALJ found that
Plaintiff had severe impairments of lumbar degenerative disc disease with L5-S1 disc herniation,
status-post fusion, and obesity.
The ALJ found that, from August 14, 2008 through February 4, 2010, Plaintiff had the
residual functional capacity (RFC) to perform light work, except she could stand and/or walk at
least two hours in an eight hour work day; she could occasionally climb ladders, ropes, or scaffolds;
and she could occasionally stoop, kneel, crouch, and crawl.
Based on the testimony of a vocational expert (VE), the ALJ concluded that, from August
14, 2008, to February 4, 2010, Plaintiff was unable to perform any past relevant work, yet
concluded there are jobs that exist in significant numbers in the national economy that Plaintiff
could have performed.
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in formulating this
Memorandum and Order. The following summary of the record is directed to Plaintiff’s
arguments.
1. Agency Forms
Plaintiff was born in 1964 and was fifty-five years old on the date of the ALJ’s decision.
(Tr. 134). Her amended alleged onset date is August 14, 2008. Plaintiff worked as a cook at a
nursing home from 1995 to 2007 and as a cook at a jail from 2000 to 2004. (Tr. 147).
Plaintiff said she has difficulties bending down, sitting, getting up, doing the dishes,
making meals, doing the laundry, walking, and doing housework. Plaintiff said her conditions
affect her sleep and personal care. Plaintiff said her hobbies include watching television and
watching other people walking and having a good time. Regarding Plaintiff’s social activities, she
said she spends a lot of time on the phone. Plaintiff said her conditions affect her lifting, squatting,
bending, standing, reaching, walking, sitting, stair climbing, and completing tasks. She said she
can only walk twenty to twenty-five steps before stopping to rest for a couple minutes and uses a
cane all the time. (Tr. 167-174).
2. Evidentiary Hearing
The most recent evidentiary hearing occurred in February 2019. (Tr. 1086). However, it
did not involve any testimony by Plaintiff. Therefore, Plaintiff’s testimony from the July 2012
evidentiary hearing will be restated here.
An attorney represented Plaintiff at the evidentiary hearing on July 9, 2012. (Tr. 31). She
was forty-eight years old at the hearing, unmarried, and lived at home alone. She had two sons and
five grandchildren. She could no longer babysit her grandchildren due to her back problems, but
they visited her occasionally. (Tr. 34-36).
She last worked as a head cook in a nursing home, where she worked for twelve years
before injuring her back on the job when she slipped on water and caught herself during the fall
which caused her to rupture her back. She initially attempted to return to work but was unable to
do so. Plaintiff received workers’ compensation benefits for her injury until 2011 when she
received a settlement of approximately $150,000. (Tr. 37-40).
After her injury, Plaintiff testified that she was confined to her recliner or bed most of the
day due to pain in her back and legs. She had not sought work elsewhere. In June 2009, Plaintiff
stated that she had surgery where two rods, two discs, six screws, and parts of her hip bone were
placed in her back. The surgery relieved some leg pain, but her back pain remained the same. (Tr.
41-42). Plaintiff attempted rehab and was doing well until she injured her back further while
carrying weights at therapy. Thereafter, her doctors had her discontinue physical therapy. (Tr.
44-45).
Plaintiff testified that she spends most of her time laying down or in a recliner with her feet
propped up. She made tea and TV dinners, but she had to sit down halfway through making either
so that she could get pressure off her back. If she attempted to do dishes, she rested her elbows on
the counter to relieve some of the pressure. (Tr. 43-44). She testified that it took her all day to
perform typical tasks because she had to frequently stop and rest. (Tr. 47).
A vocational expert (VE) also testified. The VE testified that Plaintiff’s past work as a cook
was classified as medium skilled work. The ALJ asked the VE a hypothetical where she was to
assume a person with Plaintiff’s vocational and educational background and could perform light
work, but the person could only stand or walk for two hours in an eight-hour workday.
Additionally, the person could only occasionally climb ladders, ropes, scaffolds, stoop, kneel,
crouch, or crawl. The VE testified that this person could perform jobs with a restricted range of
sedentary work that exist in a significant number in the national economy. Examples of such jobs
are clerical addresser, security monitor, and small products sorter. (Tr. 49-50).
The VE testified that if the person could not tolerate eight hours of work a day, five days a
week, on a consistent basis and required unscheduled absences and breaks at will, no jobs existed
in the national or regional economies. (Tr. 50-51).
3. Relevant Medical Records
Because the time period at issue is from August 14, 2008, to February 4, 2010, only those
medical records will be included here. Some potentially important studies or scans recorded after
this time period may be included.
Plaintiff presented to Carol Weiler, a physician assistant, at West Salem Medical Clinic
Family Practice ten times between July 2007 and September 2007. (Tr. 377-383, 528). During
this time, Plaintiff reported injuring her back at work when she tried catching herself before falling
to the floor and twisting her back on the way down, and she reported reinjuring her back on August
14, 2007. (Tr. 379, 383). Plaintiff reported pain at a six out of ten, doing better with medications
at times, having continual pain, having to sit down a few times before finishing chores, back
tension, working only four to six hours a day at times, and lack of improvement. (Tr. 379-383,
528). PA Weiler noted Plaintiff had paravertebral tightness bilaterally with spasms, guarded and
intact range of motion, unguarded gait, negative straight leg raise tests with one positive straight
leg raise test, spine pain on palpation, better movement at times, decreased tightness at times, and
better ambulation. The assessment included back pain/strain. Plans included medication, applying
heat before work and ice after work, undergoing an MRI, and work restrictions such as refraining
from work, returning to work for no more than four hours a day, working no more than six hours
a day, and lifting no more than twenty pounds. (Tr. 377-383, 528).
On August 15, 2007, Plaintiff presented to Richland Memorial Hospital complaining of
low back pain and stating she fell and hurt her back at work on July 17. (Tr. 230). Plaintiff said
her pain started the day prior when she bent down to pick something up, her pain worsens when
standing or walking, her pain medications were not helping, and she tried ice and a heating pad.
(Tr. 233). She was given medications, had significant improvement, and was discharged. (Tr.
235).
Plaintiff presented to Richland Memorial Hospital on October 4, 2007. Her diagnosis was
chronic low back pain, she was given Dilaudid, and was instructed to stay off work for three days,
refrain from heavy lifting, and rest. (Tr. 238-239).
Plaintiff presented to an orthopedic surgeon, Lawrence Leventhal, in October 2007
complaining of low back pain at a four out of ten when resting and an eight out of ten when active.
The pain worsened when pulling, standing, trying to get comfortable in bed, and walking. She had
a negative straight leg raise bilaterally and x-rays were performed of her lumbar spine. The x-ray
impression was, “Advanced degenerative discs of the lumbar spine with a degenerative
spondylolisthesis3 at L4-5, grade 2.” Dr. Levanthal reviewed an MRI performed on September 7,
2007, and the impression was, “Degenerative spondylolisthesis at L4-5 with advanced
degenerative disc at this level.” Dr. Leventhal diagnosed lumbago, prescribed physical therapy
and recommended suitable levels of work activity. Dr. Leventhal issued a work release that
recommended Plaintiff be off work for six weeks. (Tr. 240-245).
Plaintiff participated in over twenty physical therapy appointments at Richland Memorial
Hospital between October 2007 and January 2008. (Tr. 246-249, 257-258, 617-618, 621-624, 627-
629). Plaintiff rated her pain anywhere from a two out of ten to a six out of ten. (Tr. 246, 249,
621-624, 627-629). Plaintiff reported some soreness, improvement, continual pain, muscle spasms
after working for five hours, and stiffness. (Tr. 249, 258, 617-618, 621-624, 627-628). PT
McLaughlin recommended Plaintiff return two to three times a week for four to six weeks. (Tr.
3 Spondylolisthesis refers to, “Forward displacement of one of the lower lumbar vertebrae over the vertebra below it
or on the sacrum.” https://medical-dictionary.thefreedictionary.com/spondylolisthesis, visited on March 27, 2020.
247-248, 252-253).
Plaintiff presented to Dr. Leventhal seven times between November 2007 and May 2008.
(Tr. 254, 260, 265, 270, 272, 277, 279). Plaintiff reported injuring her back on December 8, 2007,
when bending over to pick up empty pans, and she went to the emergency room two days later.
(Tr. 260, 657). Plaintiff reported successful physical therapy appointments, continual pain that
improved with physical therapy and medications but also worsened at times, low back pain
anywhere from a one out of ten to a seven out of ten, and decreased pain with heat, sitting, rest,
and medications. (Tr. 254, 260, 265, 270, 272, 280). Plaintiff underwent two injections in
December 2007, was off work for five days, and said her pain decreased thanks to the injections.
(Tr. 260, 270, 272). Plaintiff received another injection which did not help her pain and symptoms.
(Tr. 268, 277). Plaintiff reported abstaining from work and said light work was not available. (Tr.
280). Dr. Leventhal noted both positive and negative straight leg raise tests, full flexion and
extension at times, both thirty and fifty percent flexion at times, and tenderness to palpation. (Tr.
261, 266, 270-271, 273, 278-279). An x-ray showed spurring and ankylosis4 anteriorly secondary
to some arthritis. (Tr. 263). Diagnoses included lumbago, sciatica, and spinal stenosis5 of the
lumbar region. (Tr. 255, 261, 266, 271, 273, 278). Plans included physical therapy, steroid
injections, refraining from work at times, and later returning to work full time, if available, with
restrictions including light work and lifting no more than twenty pounds. (Tr. 255, 261, 264, 266,
269, 271, 273-274, 276, 279). Dr. Leventhal also recommended surgery if strengthening Plaintiff’s
back fails to help. (Tr. 276).
4 Ankylosis refers to, “immobility and consolidation of a joint due to disease, injury, or surgical procedure.”
https://medical-dictionary.thefreedictionary.com/ankylosis, visited on March 27, 2020.
5 Stenosis, regarding the spine, refers to, “narrowing of the vertebral canal, nerve root canals, or intervertebral foramina
of the lumbar spine, caused by encroachment of bone upon the space; symptoms are caused by compression of the
cauda equina and include pain, paresthesias, and neurogenic claudication.” https://medical-
dictionary.thefreedictionary.com/stenosis, visited on March 27, 2020.
Plaintiff presented to Keith Wilkey, an orthopedic surgeon, on April 3, 2008, and
underwent an independent medical evaluation for a third party regarding a worker’s compensation
claim concerning Plaintiff’s back injury. Plaintiff reported pain at a four out of ten and reporting
the ability to return to some light work. Dr. Wilkey noted tenderness to palpation at Plaintiff’s
low back but no sacroiliac joint or leg pain. The assessment included, “Grade I spondylolisthesis
L4-5-subacute exacerbation.” Plaintiff mentioned wanting to work, and Dr. Wilkey recommended
Plaintiff continue with epidural injections and viewed Plaintiff as potentially a good candidate for
surgical intervention. Dr. Wilkey said Plaintiff could return to work but should be restricted to
lifting only 20 pounds or less, and should bend, twist, and stand as tolerated. (Tr. 343-345).
Plaintiff underwent physical therapy at Richland Memorial Hospital fifteen times between
May 2008 through July 2008. Plaintiff said she had been off work since October 2007 apart from
a brief period of returning to work. Plaintiff rated her pain anywhere from a three out of ten to a
seven out of ten. (Tr. 282-286, 636). Plaintiff reported taking several pain pills, muscle spasms,
stiffness, occasionally feeling better, and deficits in sleeping, working, bending, lifting, prolonged
walking, sitting, and standing. (Tr. 282, 285, 636). The physical therapist noted minimal pain
change, slow, guarded movements, inability to achieve pelvic tilt due to pain, and increased pain.
(Tr. 282-285). Plans included continuing physical therapy and home exercises. (Tr. 282). The
physical therapist sent letters to Dr. Leventhal throughout treatment saying Plaintiff complied and
had some slow but good progress. The physical therapist did not feel Plaintiff could return to work
and wanted to continue seeing her. (Tr. 288, 637).
Plaintiff presented to Dr. Leventhal six times between June 2008 and October 2008.
Plaintiff reported unchanged, decreased and severe pain, decreased muscle spasms, pain without
relief, pain with walking, an inability to get comfortable in bed, improvement with physical
therapy, popping sensations in her back while walking, wobbling, problems sleeping, and
restlessness. (Tr. 290, 293, 299, 304, 307, 313). Plaintiff rated her pain between a zero to six out
of ten and said she was considering back surgery. (Tr. 290, 299, 304, 307, 313). Dr. Leventhal
noted tenderness to palpation, fifty percent of normal flexion, full flexion, eighty percent of normal
extension, full extension, and both positive and negative straight leg raise tests. (Tr. 291, 294, 300,
305, 308, 314). Dr. Leventhal noted Plaintiff made a good faith effort in physical therapy despite
hitting a plateau in her results. (Tr. 310). An x-ray showed, “Significant instability at the L4-5
level.” (Tr. 311). Diagnoses included lumbago, and clinical impressions included low back pain
improving with therapy and aquatherapy and “Bilateral pars defect at L4-5 with grade 2
spondylolisthesis.” Recommendations included a fusion at the L4-5 level, and plans included
refraining from work until reevaluation, continuing physical therapy, referral to a tertiary center,
and discharge from further active orthopedic care. (Tr. 289, 291-292, 298, 300, 303, 305, 308,
310, 312, 315-316).
Plaintiff presented to West Salem Medical Clinic Family Practice on October 21, 2008,
reporting increased back pain at a four out of ten. The assessment included back pain due to
spondylolisthesis L4-L5. (Tr. 374).
Plaintiff underwent an MRI of her lumbar spine on November 11, 2008, and the conclusion
was, “1. Chronic bilateral L4 spondylolysis and grade 1 anterior spondylolisthesis of L4 on L5 and
associated degenerative disc disease and facet arthropathy producing moderate L4-5 foraminal
stenosis. 2. Broad left-sided L5-S1 disc herniation extending laterally into the left L5-S1 neural
foramen. Mild chronic anterior wedge compression fracture T11 with no acute fracture identified.”
(Tr. 317).
Plaintiff presented to Charles Wetherington, a neurosurgeon, on November 18, 2008,
complaining of lumbar spine symptoms. Plaintiff reported worsened symptoms, said her
symptoms worsened with activity, lying down, sitting, standing, and walking, and reported an
inability to get any relief. Dr. Wetherington noted Plaintiff tried epidural steroid injections,
physical therapy, pool therapy, and analgesics. Dr. Wetherington noted palpation of the lumbar
spine revealed significant right-side sacroiliac joint tenderness with some midline spinal
tenderness as well and a negative straight leg raise bilaterally. Plans included a right sacroiliac
joint injection. (Tr. 318-319).
Plaintiff presented to Brian Ogan, a pain medicine specialist, at the Effingham Ambulatory
Surgery Center five times between December 2008 and March 2009. (Tr. 323, 328, 331, 333,
337). Plaintiff reported sitting and resting as her only relief. (Tr. 323). With Dr. Organ, Plaintiff
underwent nerve root block and transforaminal injections and had follow-up appointments. (Tr.
323, 326, 331, 335). Plaintiff reported a good amount of improvement after the injections but still
had pain, sometimes increased pain, that occurred nearly constantly with ambulation, standing or
bending. (Tr. 328, 333, 337). Dr. Ogan noted Plaintiff’s lumbar spine was without deformity, the
sacroiliac joint was mildly to exquisitely tender to palpation, and leg raises created low back pain.
(Tr. 324, 328, 333, 337). His assessment included lumbar nerve root irritation on the right at the
L4-5 level and spondylosis. (Tr. 334). Throughout this time period, Dr. Organ often recommended
more injections and that Plaintiff refrain from working. (Tr. 324-325, 329, 334, 338). However,
at one point, Dr. Ogan recommended not repeating the injection as it did not relieve Plaintiff’s
pain enough. (Tr. 329).
Plaintiff presented to the West Salem Medical Clinic Family Practice on February 16, 2009,
reporting “Doing ok” and having no relief from past sacroiliac injection. Later that month, Plaintiff
called and said her insurance refused pay for her medications. (Tr. 373).
Plaintiff presented to Dr. Wilkey nine times between May 2009 and January 2010. (Tr.
339, 346, 348, 350-354). Prior to her surgery in July 2009, Plaintiff reported further injury to her
back in June 2009 and often reported pain at a six out of ten. (Tr. 346, 348, 350). Plaintiff reported
trouble standing for more than twenty minutes and difficulty walking for more than half a block.
Dr. Wilkey noted tenderness and limited range of motion. His assessment included failed
conservative care and exacerbation of degenerative spondylolisthesis L4-L5, and
recommendations included back surgery due to exhausting all non-operative options. (Tr. 346,
348). Dr. Wilkey believed Plaintiff could return to light work limited to lifting and carrying thirty
pounds and bending, twisting, sitting, standing, pushing, pulling, and driving as tolerated. (Tr.
347-350).
Dr. Wilkey performed back surgery on Plaintiff on July 9, 2009, and found unanticipated
severe osteoporosis and facet arthropathy at 3-4. (Tr. 339). Plaintiff had no complications, and
Dr. Wilkey encouraged Plaintiff to start physical therapy and refrain from working. Plaintiff
reported a fifty to seventy percent improvement in her back pain post-surgery and a one hundred
percent improvement in leg pain. Her progress eventually plateaued. From July 2009 to January
2010, Dr. Wilkey noted negative straight leg raise tests, improved range of motion, decreased pain
in the lower spine, a waddling gait, and soreness. Dr. Wilkey recommended Plaintiff walk,
progress as tolerated, and refrain from working, and plans included continuation of physical
therapy. Eventually, Dr. Wilkey said Plaintiff could return to work in the near future with
restrictions for lifting and carrying up to twenty pounds, working four-hour shifts at maximum,
and bending, twisting, sitting, and standing as tolerated. Later, Dr. Wilkey said Plaintiff should
pause therapy, continue to simply walk, and potentially return to work with restrictions of lifting
and carrying up to thirty pounds and sitting, standing, and twisting as tolerated. (Tr. 351-354).
Plaintiff completed over 40 physical therapy appointments at Richland Memorial Hospital
from August 2009 to December 2009. (Tr. 638, 641-645, 647-648, 650-652, 654-656). She
presented for status post fusion, back pain, and gait abnormality. (Tr. 638). Plaintiff said her
employer was unable to accommodate her necessary restrictions, and she reported muscle spasms,
an increase in pain, stiffness, pain with walking, soreness, fatigue, an increase in pain medications,
walking one city block, and pain between a five to seven out of ten. (Tr. 638, 641-644, 647-648,
650-652, 654-656). The physical therapists noted guarded movements, slow cadence, decreased
stride, strength, and ambulation, a labored and antalgic gait pattern, and decreased stability while
standing but also noted steady gains over time. (Tr. 638-639, 641, 645, 650-653, 654-656). At
one point, Plaintiff was able to ambulate up and down the stairs once using the handrail and
experienced a mild pulling sensation. (Tr. 644). Plaintiff continued to have both occasional
improvement and occasional increase in pain. (Tr. 647-648). Plans included decreasing pain,
improving strength, and continuing physical therapy. (Tr. 639).
Plaintiff presented to the Richland Memorial Hospital emergency room on February 5,
2010, complaining of back pain with no relief despite taking many pain medications in an effort
to dull the pain. The emergency physician noted Plaintiff did not show any clinical evidence of
disc signs or muscle atrophy, and Plaintiff received an injection and pain medications. (Tr. 659).
In June 2010, Dr. Wilkey said a CT scan on Plaintiff’s back in February showed,
“maturation of the fusion both posterolateral and interbody. Due to her large size, this will probably
need to be repeated.” (Tr. 356). Plaintiff underwent a CT scan of her lumbar spine on June 28,
2010. The impression was, “No CT evidence of acute lumbar spine fracture or subluxation…No
orthopedic hardware loosening or breakage is appreciated. There is a grade 1 anterolisthesis6 of
6 Anterolisthesis refers to, “Forward displacement of a vertebral body with respect to the vertebral body immediately
below it, due to congenital anomaly, degenerative change, or trauma.” https://medical-
L4 on L5 present. Mild to moderate neural foraminal encroachment may be present at L3-L4 and
L5-S1.” (Tr. 360-361).
On September 23, 2010, Dr. Wilkey reviewed a recent CT scan and said, “It was an
excellent study that shows a healed posterior lateral fusion bilaterally, as well as solid interbody
fusion. No evidence of hardware failure or loosening.” Dr. Wilkey recommended Plaintiff only
lift and carry up to thirty pounds and bend, twist, sit, stand, and drive as tolerated. (Tr. 357).
4. Medical Opinions
State agency physician B. Rock Oh, M.D. assessed Plaintiff’s RFC in January 2011. (Tr.
501-507). He reviewed medical records but did not examine Plaintiff. He believed Plaintiff could
occasionally lift twenty pounds and frequently lift ten pounds. He opined Plaintiff could stand or
walk for a total of two hours in an eight-hour workday and sit for a total of six hours in an eight-
hour workday. (Tr. 501). He limited Plaintiff to occasional climbing of ladders, ropes, and
scaffolds, and occasional stooping, kneeling, and crouching. (Tr. 502).
Dr. Lenore Gonzalez, M.D., of Disability Determination Services (DDS) agreed with this
opinion in April 2011. (Tr. 518-520).
Analysis
First, Plaintiff asserts the ALJ erred by failing to address important evidence that
contradicts his finding that Plaintiff was not disabled prior to February 5, 2010.
The Seventh Circuit has “repeatedly held that although an ALJ does not need to discuss
every piece of evidence in the record, the ALJ may not analyze only the evidence supporting her
ultimate conclusion while ignoring the evidence that undermines it.” Moore v. Colvin, 743 F.3d
1118, 1123 (7th Cir. 2014). The ALJ must consider all relevant evidence. Golembiewski v.
dictionary.thefreedictionary.com/anterolisthesis, visited on March 27, 2020.
Barnhart, 322 F.3d 912, 917 (7th Cir. 2003); 20 C.F.R. § 404.1545 (a)(1) and (3). Moreover, the
ALJ must “engage sufficiently” with the medical evidence. Stage v. Colvin, 812 F.3d 1121, 1125
(7th Cir. 2016). The ALJ “need not provide a complete written evaluation of every piece of
testimony and evidence.” Curvin v. Colvin, 778 F.3d 645, 651 (7th Cir. 2015) (citation and internal
quotations omitted). However, the ALJ’s discussion of the evidence must be sufficient to “provide
a ‘logical bridge’ between the evidence and his conclusions.” Terry v. Astrue, 580 F.3d 471, 475
(7th Cir. 2009), internal citations omitted. The ALJ “cannot simply cherry-pick facts supporting
a finding of non-disability while ignoring evidence that points to a disability finding.” Denton v.
Astrue, 596 F.3d 419, 425 (7th Cir. 2010).
Plaintiff argues the ALJ skimmed over the physical therapy records and believes the ALJ
erred in saying Plaintiff “was able to ambulate up and down stairs.”
This Court agrees that the ALJ seemed to assume Plaintiff was continuously able to
ambulate up and down stairs. However, that was not the case. There was only one mention of
Plaintiff successfully ambulating stairs in September 2009, and she did so while using the handrail.
This did not come without pain as Plaintiff reported a pulling sensation in her back. (Tr. 644).
Therefore, it is incorrect for the ALJ to generalize this as if Plaintiff always had the ability to
ambulate stairs, and this error has the potential to affect the disability decision.
Furthermore, there are multiple medical records regarding Plaintiff’s back pain and
physical therapy appointments that provide, in detail, Plaintiff’s improvement, complaints,
objective findings, and more. There were multiple references in the medical records indicative of
back issues such as an antalgic gait, issues with standing and walking, tenderness to palpation,
decreased flexion and extension, and more. In his decision, the ALJ continually highlighted
Plaintiff’s normal neurological examinations and negative straight leg raise tests among other
things when, in fact, there were other objective findings worthy of considering. The ALJ said
Plaintiff’s examination findings were “usually mild, although she sometimes had [a] positive
straight leg raise and of course had some range of motion limitations.” (Tr. 1072). To say that
Plaintiff’s examination findings were usually mild is incorrect. One cannot correctly consider an
individual’s back pain examinations “mild” when doctors considered the individual to have
exhausted all non-operative options and that back pain required multiple injections, numerous
hours of physical therapy, and ultimately back surgery. Although the ALJ did not ignore the
objective evidence in its entirety, it is clear that the ALJ’s decision did not adequately reflect the
plentiful number of objective findings and instead focused more on Plaintiff’s subjective
complaints.
Defendant argues that the ALJ did not ignore certain medical evidence. However, what
Defendant fails to address is how the ALJ may not have engaged sufficiently with the medical
evidence, which is what happened here. With that said, this Court agrees the ALJ did not
adequately consider all medical records.
Second, Plaintiff asserts the ALJ erred by finding Plaintiff’s statements about the intensity,
persistence, and limiting effects of her symptoms are not entirely consistent with the medical
evidence and other evidence. Although the ALJ considered a variety of factors in his analysis, his
credibility determination cannot be upheld.
SSR 16-3p supersedes the previous SSR on assessing the reliability of a claimant’s
subjective statements. SSR 16-3p became effective on March 28, 2016 and is applicable here.
2017 WL 5180304, at *1. The new SSR eliminates the use of the term “credibility,” and clarifies
that symptom evaluation is “not an examination of an individual’s character.” SSR 16-3p
continues to require the ALJ to consider the factors set forth in the applicable regulation, 20 C.F.R.
§ 404.1529. Ibid. at *10.
The new SSR does not purport to change the standard for evaluating the claimant’s
allegations regarding her symptoms. Thus, prior Seventh Circuit precedents continue to apply.
The findings of the ALJ as to the accuracy of the plaintiff’s allegations are to be accorded
deference, particularly in view of the ALJ’s opportunity to observe the witness. Powers v. Apfel,
207 F.3d 431, 435 (7th Cir. 2000). However, Social Security regulations and Seventh Circuit cases
“taken together, require an ALJ to articulate specific reasons for discounting a claimant's testimony
as being less than credible, and preclude an ALJ from ‘merely ignoring’ the testimony or relying
solely on a conflict between the objective medical evidence and the claimant's testimony as a basis
for a negative credibility finding.” Schmidt v. Barnhart, 395 F.3d 737, 746-747 (7th Cir. 2005),
and cases cited therein.
Plaintiff argues that the ALJ erred by using a more rigorous standard when deciding
whether Plaintiff’s statements were “entirely consistent with the medical evidence and other
evidence.” Plaintiff said the correct standard is whether the allegations “can reasonably be
accepted as consistent with the objective evidence and other evidence.” However, the ALJ’s use
of this language is harmless where the ALJ goes on to give his reasons for his decision. Burmester,
920 F.3d at 510. The use of the phrase “not entirely consistent” does not suggest that the ALJ used
an incorrect standard. The ALJ cited the correct standard at Tr. 1061 and discussed the relevant
factors in assessing Plaintiff’s allegations.
The ALJ’s error in Plaintiff’s first issue consequently affects this credibility issue. Had the
ALJ adequately weighed the objective evidence with Plaintiff’s subjective complaints, there would
be a fairer understanding as to whether Plaintiff’s complaints are supported by the record as a
whole. Furthermore, in a recent Seventh Circuit decision discussion about credibility, the court
said the problem lies where the ALJ cites only to evidence in favor of their decision and fails to
discuss the conflicting evidence. Reinaas v. Saul, No. 19-1985, --- F.3d ---, 2020 WL 1242431, at
*5 (7th Cir. Mar. 16, 2020).
Here, the ALJ said Plaintiff’s statements about the intensity, persistence, and limiting effect
of her symptoms were “inconsistent because her report varied over the relevant period…” (Tr.
1072). It is true that Plaintiff’s reports varied. Nevertheless, this is expected when an individual
such as Plaintiff undergoes a large number of physical therapy appointments, multiple injections,
and back surgery. Therefore, it is incorrect to assume that Plaintiff would be more credible had
her reports stayed the same throughout multiple methods of treatment. As for the objective medical
evidence that supports Plaintiff’s complaints, this Court’s response as to Plaintiff’s first issue
applies here. With that said, the ALJ’s lack of discussion involving the objective evidence
consequently casts an unfair light on the reliability of Plaintiff’s subjective complaints.
Lastly, Plaintiff asserts the ALJ erred in his analysis of the opinion evidence.
”An ALJ can reject an examining physician's opinion only for reasons supported by
substantial evidence in the record; a contradictory opinion of a non-examining physician does not,
by itself, suffice.” Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). A consultative examiner
is not entitled to controlling weight because the examiner is not the claimant’s treating physician.
Simila v. Astrue, 573 F.3d 503, 514 (7th Cir. 2009). On the other hand, the treating physician’s
opinion, although important, is not the final word. Books v. Chater, 91 F.3d 972, 979 (7th Cir.
1996)(internal citation omitted). A treating source’s medical opinion is entitled to controlling
weight only where it is supported by medical findings and is not inconsistent with other substantial
evidence in the record. Brown v. Colvin, 845 F.3d 247, 252 (7th Cir. 2016), citing Clifford v.
Apfel, 227 F.3d 863, 870 (7th Cir. 2000). If given less weight, an ALJ must articulate their reasons
for giving the treating physician’s opinion less weight. Punzio v. Astrue, 630 F.3d 704, 710 (7th
Cir. 2011); Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir. 2008); Skarbek v. Barnhart, 390
F.3d 500, 503 (7th Cir. 2004). Since non-examining medical professionals are not engaged in a
treating relationship with the claimant, federal regulations state:
…the weight we will give their medical opinions will depend on the degree to
which they provide supporting explanations for their medical opinions. We will
evaluate the degree to which these medical opinions consider all of the pertinent
evidence in your claim, including medical opinions of treating and other examining
sources.
20 C.F.R. § 404.1527(c)(3).
Plaintiff argues that the state agency non-examining physicians did not adequately
articulate their reasoning for their medical opinions regarding Plaintiff’s medical impairments and
any articulation by the state agency non-examining physicians only regarded medical records on
February 5, 2010, or after. Plaintiff, therefore, argues the ALJ erred by giving substantial weight
to those opinions. Additionally, Plaintiff argues that Dr. Wilkey’s opinions from April 3, 2008,
May 5, 2009, June 2, 2009, and January 12, 2020, regarding Plaintiff returning to work are not
distinguishable from Dr. Wilkey’s opinions given after February 5, 2010.
Defendant argues the ALJ did an adequate job articulating why he gave Dr. Oh and Dr.
Gonzalez’s opinions substantial weight. However, the ALJ’s articulation is not at issue here. The
lack of articulation by Dr. Oh and Dr. Gonzalez is at issue. These January 20, 2011, and April 8,
2011 opinions, of course, occurred after February 5, 2010. They were very brief with very minimal
citation or reference to records prior to February 5, 2010. These opinions did not include the level
of supporting explanation as required by § 404.1527(c)(3). Therefore, the ALJ erred by giving
said opinions such substantial weight.
Dr. Wilkey gave work limitations on April 3, 2008, May 5, 2009, June 2, 2009, January
12, 2010, and September 23, 2010. Dr. Wilkey’s recommendations consisted of light work, lifting
and carrying up to twenty to thirty pounds, and bending, twisting, sitting, standing, pushing,
pulling, and driving as tolerated. Plaintiff argues that the April 2008, May 2009, June 2009, and
January 2010 limitations are no different than the September 2010 limitations, which came well
after February 5, 2010, when Plaintiff became disabled. This Court agrees.
Instead of better explaining this issue, the ALJ argues how the previous decision of this
Court was incorrect on this topic. The ALJ continued saying, “…as of February 2010, the
claimant’s pain increased so much that her pain meds did not control the pain…thus supporting
that while she could still do the range of light work, her pain levels became so severe that added
limitations regarding staying on task and completing workdays became warranted.” (Tr. 1065).
What the ALJ fails to mention is Plaintiff had these issues with her medications long before
February 5, 2010.
On December 1, 2009, Dr. Wilkey recommended Plaintiff only work four-hour shifts. The
Seventh Circuit has also noted that, “a person who cannot work eight hours a day, five days a
week, or the equivalent, is disabled.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013). The
ALJ believed this limitation seemed to be temporary as Dr. Wilkey said Plaintiff could return to
work in the near future. More specifically, Dr. Wilke said, “I see no reason that she cannot return
to work shortly.” (Tr. 353). However, Dr. Wilkey did not specifically state in his notes that
Plaintiff could return to working more than four-hour shifts in the near future. Therefore, it is
incorrect to assume that Dr. Wilkey’s indication was that Plaintiff could return to work with a more
normal schedule as opposed to being limited to four-hour shifts. Since the ALJ relied heavily on
Dr. Wilkey’s work restrictions, he could have explained why Plaintiff was not disabled in spite of
this. Instead, the ALJ made a broad generalization and speculated as to what Dr. Wilkey meant.
This is error.
An ALJ’s decision must be supported by substantial evidence, and the ALJ’s discussion of
the evidence must be sufficient to “provide a ‘logical bridge’ between the evidence and his
conclusions.” Terry, 580 F.3d at 475, internal citations omitted. Here, the aforementioned errors
leave a gap in the ALJ’s decision. Therefore, the Court must conclude that the ALJ failed to build
the requisite logical bridge here.
This Memorandum and Order should not be construed as an indication that the Court
believes Plaintiff was disabled during the relevant period or that she should be awarded benefits.
On the contrary, the Court has not formed any opinions in that regard and leaves those issues to be
determined by the Commissioner after further proceedings.
Conclusion
The Commissioner’s final decision denying Plaintiff’s application for social security
disability benefits is REVERSED and REMANDED to the Commissioner for rehearing and
reconsideration of the evidence, pursuant to sentence four of 42 U.S.C. §405(g).
The Clerk of Court is directed to enter judgment in favor of Plaintiff.
IT IS SO ORDERED.
DATED: April 1, 2020
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge