The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KIANN K. M.,1 )
)
Plaintiff, )
)
v. ) Case No. 19-cv-675-RJD2
)
COMMISSIONER of SOCIAL SECURITY, )
)
Defendant. )
)
ORDER
DALY, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), Plaintiff 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 applied for DIB in March 2016, alleging an onset date of May 1, 2013 (Tr. 176).
After holding an evidentiary hearing, ALJ Katherine Jenklin denied the application in August
2018 (Tr. 30). The Appeals Council denied Plaintiff’s request for review, making the ALJ’s
decision final and subject to judicial review (Tr. 1). Plaintiff exhausted administrative remedies
and filed a timely Complaint with this Court.
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 Pursuant to 28 U.S.C. §636(c), this case was assigned to the undersigned for final disposition upon consent of the
parties (Doc. 23).
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Issues Raised by Plaintiff
Plaintiff makes the following arguments:
1. The ALJ failed to properly evaluate Plaintiff’s residual functional capacity (“RFC").
2. The ALJ erred in evaluating the opinion evidence.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of the applicable
statutes and regulations.3 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 his 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 3 or step 5 leads to a finding that the plaintiff is
disabled. A negative answer at any step, other than at step 3, precludes a finding of disability.
The plaintiff bears the burden of proof at steps 1–4. Once the plaintiff shows an inability to
perform past work, the burden then shifts to the Commissioner to show the plaintiff’s ability to
engage in other work existing in significant numbers in the national economy. Zurawski v. Halter,
3 The statutes and regulations pertaining to DIB are found at 42 U.S.C. § 423, et seq., and 20 C.F.R. pt. 404.
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245 F.3d 881, 886 (7th Cir. 2001).
Importantly, this Court’s 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). This Court determines 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 defines substantial evidence as, “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, 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. She determined
that Plaintiff did not engage in substantial gainful activity from her alleged onset date of May 1,
2013 through her date last insured of December 31, 2016 (Tr. 21).
The ALJ found that Plaintiff has severe impairments of “degenerative disc disease of the
lumbar spine, degenerative disc disease of the thoracic spine, and chronic lumbosacral pain
syndrome” (Id.). However, she found that Plaintiff did “not have an impairment or combination
of impairments that meets or medically equals one of the listed impairments” (Id. at 23).
The ALJ found that Plaintiff has the residual functional capacity to:
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[P]erform sedentary work as defined in 20 CFR 404.1567(a) except she could
occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl but
never climb ladders, ropes, or scaffolds. She could have occasional exposure to
extreme cold, vibration, and hazards, such as unprotected heights and unprotected
machinery. She needed a sit/stand option, in that she could stand 15 minutes of
every hour while remaining at the workstation and on task. Due to pain and the
effects of medication, she could perform work limited to simple, routine, repetitive
tasks in a work environment free of fast-paced quota requirements, involving only
simple, work-related decisions, and few, if any workplace changes.
(Tr. 23).
Based on the testimony of a vocational expert, the ALJ concluded that Plaintiff was unable
to perform past relevant work through the date last insured yet concluded there are jobs that exist
in significant numbers in the national economy that Plaintiff can perform (Tr. 28).
The Evidentiary Record
The Court reviewed and considered the entire evidentiary record in formulating this Order.
The following summary of the record is tailored to Plaintiff’s arguments.
1. Evidentiary Hearing
Plaintiff testified that her most recent job was working for the pre-kindergarten program in
St. Clair County, Illinois. She explained that, “at the time, I was very crooked. I was already very
crooked from the scoliosis.” She worked four hours a day, consisting of a morning shift and an
afternoon shift; in between, she would go home and lay down (Tr. 43). She stopped working for
St. Clair County prior to her November 2013 surgery (Tr. 46). Prior to the pre-kindergarten
position, Plaintiff worked for a newspaper as an ad assistant (Tr. 44). She had to leave that job
because she could not sit for eight hours a day (Tr. 46). Plaintiff testified that she was “always a
hard worker” and she waited a long time to file for disability because she kept hoping her pain
would get better (Tr. 58).
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Following her November 2013 surgery, she did not drive for approximately three to four
months, and then she drove “maybe once every other day” for five minutes at a time (Tr. 50). She
went to the store twice a week (Tr. 50, 51). If it was a “big” shopping trip, her husband would go
with her.
Plaintiff testified that from May 2013 through December 2016, her pain was always 8 out
of 10, even with medication.4 Most of the pain radiated from her back down her left leg. She
could walk for 8-10 minutes at a time (Tr. 53). She could sit for 10 minutes at a time before she
needed to lie down. Approximately five times a day, she would need to lie down for thirty
minutes (Tr. 54). She used adaptive devices in the shower (e.g., a seat). She could do light
cleaning (e.g., wiping off a counter or washing a few dishes). She could not lift more than a gallon
of milk or load clothes in and out of the dryer (Tr. 60, 61). Her husband performs most household
chores (Tr. 59). While she helped take care of her mother, she did not perform any physical labor
(Tr. 55, 56).
To keep herself busy, Plaintiff would read fiction (Tr. 62). She would often have to re-
read a paragraph because she had difficulty concentrating (Tr. 62). She and her husband had
previously enjoyed going to the movie theatre, but they stopped in 2013 because she could not sit
for the length of time to watch a movie (Tr. 68). She could still attend family events, but preferred
to have them at her house so she could lie down, if necessary (Tr. 68). Because of her pain, she
did not sleep for more than five hours at night (Tr. 64). She had numbness in her hands, legs, and
feet (Tr. 67). Plaintiff took medicine for her pain, but the medicine made her nauseous, forgetful,
4 Plaintiff gave most of her testimony in the present tense, even though the ALJ informed her that the relevant
period of was May 2013-December 2016. Plaintiff explained that since the 2013 surgery, she has felt the same and
experienced the same limitations (Tr. 67).
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and sleepy (Tr. 56).
The Vocational Expert (“VE”) testified that a person with Plaintiff’s RFC could perform
the following jobs: 1) ticket-taker; 2) touch-up circuit board worker; 3) optical goods assembler.
Those jobs would have zero-tolerance for an individual who needed to take breaks to lie down (Tr.
71). The individual would be allowed less than 10% time to be “off task” (Tr. 72). Plaintiff
testified that the medication she was taking would not have allowed her to perform a job like a
ticket-taker (Tr. 73).
3. Relevant Medical Records
Plaintiff underwent posterior spine fusion surgery at Barnes Jewish Hospital in St. Louis,
Missouri on November 13, 2013. In his Operative Report, the surgeon (Dr. Laurence Lenke-
Washington University) noted her indications for surgery:
The patient is a 46-year-old female who is approximately five years
out from an anterior posterior fusion at L4-SI. She has done well
with that. However, she has had progression of idiopathic scoliosis
with degeneration above producing angulation at L2-3 and
especially at L3-4, causing progression of her deformity and
increasing truncal pain.
(Tr. 325). Following surgery, Plaintiff was transferred to the intensive care unit in stable
condition (Tr. 328). She was discharged home six days later. (Tr 314). One month later, she
underwent an x-ray of her thoracolumbar spine that showed “no residual scoliosis” (Tr. 406).
Plaintiff saw Dr. Jeffrey Gum at Washington University on March 19, 2014 for a post-op
visit. Dr. Gum noted that Plaintiff was four months post surgery, and “[s]he is doing fantastic.
She has no complaints. She states she’s ambulating well….[s]he states she has weaned herself off
of narcotics and is very pleased with her progress at this point.” Plaintiff was “pleasant and
cooperative throughout the examination.” Overall, she had “good balance and posture is
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maintained”, which was consistent with radiology findings. Plaintiff and Dr. Gum “discussed the
do’s and don’ts with regards to spine precautions. She is very pleased at this point.” She was
instructed to return in one year for a follow up visit (Tr. 440).
Plaintiff saw Dr. Lenke on November 14, 2014 for her one-year post-surgery visit. Dr.
Lenke noted that “overall doing very well and is pleased with everything.” He noted that she had
a “normal dynamic and static neurological exam in the lower extremities.” X-ray imaging of her
thoracolumbar spine showed no changes in her fusion or hardware, and normal thoracolumbar
alignment (Tr. 404). For her treatment plan, he wrote “[s]he looks good and feels quite good,
very pleased with everything. We will see her back when she is two years postop” (Tr. 482).
In 2015, Dr. David Rawdon (Plaintiff’s primary care physician) referred Plaintiff to a pain
management specialist for “scoliosis/prior surgery” (Tr. 480). There are no concurrent records in
the file reflecting that Plaintiff saw Dr. Rawdon in April 2015 and complained of back pain.
Plaintiff saw Dr. Rawdon in March 2015 for a cough and chest congestion, but it is unclear from
Dr. Rawdon’s handwritten notes whether she complained of back pain at that visit (Tr. 493).
There are no records in this matter that indicate Plaintiff went to the pain management clinic until
June 2017 (Tr. 563).
On January 6, 2016, Plaintiff saw Dr. Mannish Gupta, Chair of Spine Surgery at
Washington University-St. Louis. He noted that Plaintiff was two years postop and “when she
sits on the toilet for too long or sits for too long her feet go numb but they get better right away
when she gets up. She gets some back pain between her shoulder and low back pain but it is not
terrible….She takes care of her mother who is heavy and she has to do some lifting.” Dr. Gupta
found that Plaintiff’s strength was good in both lower extremities. She could walk on her heels
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and toes, and she could squat and rise without difficulty (Tr. 438). Overall, she was “doing well
postop two years” and would return to see Dr. Gupta in 12 months (Tr. 438).
Dr. Rawdon saw Plaintiff on July 16, 2016 for low back pain (Tr. 684). He prescribed
pain medication and recommended that she follow up with Dr. Gupta.5 X-ray imaging of
Plaintiff’s thoracolumbar spine revealed no changes from x-rays taken in November 2014 (Tr.
686).
4. Dr. Rawdon’s Opinions
On January 19, 2016, Plaintiff saw her primary care physician, Dr. Rawdon. Dr. Rawdon
noted the following in Plaintiff’s chart:
She comes in. We discussed her back. She has had spinal fusion. She is seeing
a spine/scoliosis physician in St. Louis. She has chronic pain, chronic decreased
range of motion. She cannot lift more than two pounds. She cannot do anything
more sustained than (sic) hour.
She was seen and examined. She has decreased range of motion. Negative
straight leg raising test. Her skin is normal. She is otherwise awake, alert and
active, pleasant and cooperative. No other issues noted. Disability _________
work filed. Tylenol and ibuprofen ________ and p.r.n. pain medicines. Physical
therapy. Release for Dr. L_______. 40 minutes spent in the office discussing
disability and her paper work.
(Tr. 475). On that same day, Dr. Rawdon completed a “Physical Capacity Questionnaire” in
which he noted that Plaintiff could not stand or walk two hours out of an eight-hour workday. He
also noted that she could not sit for six hours out of an eight-hour workday. He listed her
diagnoses as osteoarthritis lumbar spine, scoliosis, and chronic pain syndrome (Tr. 476). Most of
Dr. Rawdon’s prior visits with Plaintiff involved handwritten notes and it is unclear whether he
made any notes that describe symptoms similar to his January 19, 2016 notes and evaluation (Tr.
5 Dr. Gupta ordered the July 2016 x-ray (Tr. 686). Whether Plaintiff saw Dr. Gupta in July 2016 is unclear from the
records, as there is no documentation of an office visit.
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486-502).
5. State agency physicians
Dr. Julio Pardo and Dr. Yacob Gawo (both state agency physicians) assessed Plaintiff’s
residual functional capacity. The ALJ found that both physicians’ findings were generally
consistent with the medical evidence of record and gave some weight to their opinions. Both
physicians determined that Plaintiff could sit for “about” six out of eight hours in a normal work
day. The ALJ further noted that while he gave weight to Dr. Gawo’s and Dr. Pardo’s opinions,
he would afford Plaintiff every benefit of doubt that she was limited to sedentary work.
Analysis
A “logical bridge” must connect the evidence and the ALJ’s conclusion. Villano v. Astrue,
556 F.3d 558, 562 (7th Cir. 2009). Plaintiff claims that there is no “accurate and logical bridge”
between the ALJ’s RFC determination that Plaintiff needed a sit/stand option so “she could stand
15 minutes of every hour while remaining at the workstation and on task.” Plaintiff’s argument
is unfounded, as the RFC is consistent with the opinions by Dr. Pardo and Dr. Gawo that Plaintiff
could sit for “about” six out of eight hours in a normal workday. Moreover, ALJ Jecklin stated
that she gave Plaintiff every benefit of the doubt that she had some pain and needed a sedentary
occupation. While Plaintiff alleged that she had even greater limitations, those allegations are not
consistent with Plaintiff’s treatment history and the spinal surgeons’ records that clearly state
Plaintiff was “fantastic” and she “looks good and feels good” in the three years following the
November 2013 surgery.
Plaintiff also argues that “substantial evidence” shows that “Plaintiff would be off task nine
percent of the workday” if she changed positions between sitting, standing, walking, and lying
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down.” The ALJ explained that while Plaintiff alleged that she needed to change positions more
frequently than once an hour, that allegation was not supported by the evidence in the record.
Moreover, the ALJ specifically stated that Plaintiff needed a sit/stand desk that would allow her to
change positions without losing her concentration and going off task.
Plaintiff further contends that the ALJ should have, at least, considered her disabled in July
2016 when she heard a “pop” from her back. Again, this argument is contradicted by the evidence
in the record. The ALJ considered Plaintiff’s presentation to Dr. Rawdon on July 19, 2016, but
noted that the July 2016 x-ray images were normal and her exam was “essentially normal. (Tr. 25,
684). Plaintiff argues that because she subsequently had surgery in 2017, the ALJ erred by
failing to find her disabled in 2016. In March 2017 (after the date Plaintiff was last insured),
Plaintiff claims that she heard a “pop”; radiology revealed broken hardware in her back (Tr. 656,
674). She then had surgery (Tr. 586). Despite the normal radiology images in July 2016,
Plaintiff appears to be asking the Court to find that the hardware in Plaintiff’s back may have
broken in 2016. In doing so, Plaintiff is asking the Court to re-weigh the evidence, which is
improper.
Next, Plaintiff claims that the ALJ improperly weighed the medical opinion evidence.
This argument is also unfounded. The ALJ gave Dr. Rawdon’s January 2016 opinions little
weight because they were not supported by Plaintiff’s other medical records. It is appropriate for
the ALJ to consider the “supportability” of a treating medical provider’s opinions. 20 C.F.R. §
404.1527(c)(3). The ALJ gave some weight to Dr. Pardo and Dr. Gawo, in light of their
familiarity with the program and the consistency of their opinions with the medical records.
These factors were appropriately considered. 20 C.F.R. § 404.1527(c)(6). The Court will not
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substitute its judgment for that of the ALJ.
Conclusion
After careful review of the record as a whole, the Court is convinced that the ALJ
committed no errors of law, and that his findings are supported by substantial evidence.
Accordingly, the final decision of the Commissioner of Social Security denying Plaintiff’s
application for disability benefits is AFFIRMED.
The Clerk of Court is directed to enter judgment in favor of Defendant.
IT IS SO ORDERED.
DATED: March 31, 2021
s/
Hon. Reona J. Daly
United States Magistrate Judge
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