The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DONALD W.E.,1 )
)
Plaintiff, )
)
vs. ) Case No. 3:20-CV-00948-MAB
)
COMMISSIONER OF SOCIAL )
SECURITY, )
)
Defendant.
MEMORANDUM AND ORDER
BEATTY, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), Plaintiff seeks judicial review of the final
agency decision denying his application for Disability Insurance Benefits (DIB) pursuant
to 42 U.S.C. § 423.2
Procedural History
Plaintiff applied for DIB on March 13, 2018, alleging a disability onset date of July
28, 2015 (Tr. 305; 318; 416).3 The claim included the following impairments that Plaintiff
described limited his ability to work: back surgery at L5-S1; neck fusion; numbness in his
left leg and foot; numbness of his hands; and depression (Tr. 416). The claim proceeded
1 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 Doc. 8).
3 Plaintiff filed an earlier application in October 2016, which was initially denied on December 8, 2016 and
again on April 12, 207, making the benefit period covered by his March 2018 application commence with
the date of April 13, 2017.
to a hearing before Administrative Law Judge (“ALJ”) Stuart Janney, who denied
Plaintiff’s application on October 30, 2019 (Tr. 243-263). The Appeals Council denied
Plaintiff’s request for review on January 10, 2019, making the ALJ’s decision the final
agency decision subject to judicial review (Tr. 1-7). Plaintiff exhausted administrative
remedies and filed a timely complaint with this Court.
Issues Raised by Plaintiff
Plaintiff raises the following issue:
1. The ALJ failed to properly evaluate Plaintiff’s Residual Functional Capacity
(“RFC”) because the ALJ independently interpreted radiographic evidence of
Plaintiff’s spine and did not obtain necessary missing records from Plaintiff’s
doctor, Dr. Rerri.
Applicable Legal Standards
To qualify for DIB or SSI, a claimant must be disabled within the meaning of the
applicable statutes.4 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 claimant is disabled, the ALJ considers the following five
questions in order: (1) Is the claimant presently unemployed? (2) Does the claimant have
4 The statutes and regulations pertaining to DIB are found at 42 U.S.C. § 423, et seq., and 20 C.F.R. pt. 404.
The statutes and regulations pertaining to SSI are found at 42 U.S.C. §§ 1382 and 1382c, et seq., and 20 C.F.R.
pt. 416. As is relevant to this case, the DIB and SSI statutes are identical. Furthermore, 20 C.F.R. § 416.925
detailing medical considerations relevant to an SSI claim, relies on 20 C.F.R. Pt. 404, Subpt. P, the DIB
regulations. Most citations herein are to the DIB regulations out of convenience.
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 claimant unable to perform
his former occupation? and (5) Is the claimant unable to perform any other work? See 20
C.F.R. § 404.1520.
An affirmative answer at either step 3 or step 5 leads to a finding that the claimant
is disabled. A negative answer at any step, other than at step 3, precludes a finding of
disability. The claimant bears the burden of proof at steps 1–4. Once the claimant shows
an inability to perform past work, the burden then shifts to the Commissioner to show
the claimant’s ability to engage in other work existing in significant numbers in the
national economy. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001).
It is important to recognize that the scope of judicial 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). Accordingly, this Court is not tasked
with determining whether or not 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 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, 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 had not engaged in substantial gainful activity since July
28, 2015, Plaintiff’s alleged onset date (Tr. 248).
Plaintiff was born on July 15, 1971 and was 44-years old on the alleged disability
onset date (Tr. 256). The ALJ found that Plaintiff had severe impairments of lumbar
spondylosis; degenerative disk disease of the cervical spine; degenerative disk disease of
the thoracic spine; and neuropathy (Tr. 248).
The ALJ found that Plaintiff had the RFC to perform sedentary work as defined in
20 C.F.R. §404.1567(b) with the following limitations:
He can occasionally climb ramps and stairs, but should never climb ladders,
ropes, or scaffolding. He can occasionally balance.
(Tr. 250).
Based on the testimony of a vocational expert (“VE”), the ALJ found that Plaintiff
could not perform his past work as a warehouse worker (Tr. 256). Ultimately, the ALJ
found Plaintiff was not disabled, though, because he was able to do other jobs that exist
in significant numbers in the national economy (Tr. 257).
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in preparing
this Memorandum and Order. The following summary of the record is directed to the
points and factual allegations raised by Plaintiff.
1. Evidentiary Hearing
Plaintiff was represented by an attorney at the August 22, 2019 hearing. (Tr. 267).
Plaintiff testified at the hearing that he completed the 10th grade and did not receive a
high school diploma (Tr. 272). Plaintiff is married with three children, two of whom were
living at home at the time of the hearing (Tr. 273). Due to Plaintiff’s ailments, he can bathe
himself, but his wife and daughter have to help him get dressed (Tr. 279). Plaintiff
explained he struggles to bend forward and usually struggles to cook (Tr. 279-280). But,
on a good day, he can pull a chair by the grill and cook for his family (Tr. 280). He uses a
charcoal grill and has to have someone else lift the charcoal bag (Id.). Plaintiff testified
that he is depressed because he is unable to work (Tr. 281). Plaintiff testified that his
daughter plays volleyball, but he is unable to make it through an entire volleyball game
because of the pain (Tr. 280-281).
The ALJ questioned Plaintiff about his prior work history. Plaintiff testified that
he stopped working in July 2015 (Tr. 273). Before that, he worked for Statewide Tire as a
warehouse worker (Id.). This job entailed lifting, rolling, and throwing tires, which means
that as part of the work, he lifted over 100 lbs. (Tr. 274).
Plaintiff testified that his physical issues began with a car accident. At the time of
the accident he had pain near his left rib cage (Tr. 274). He decided not to get into an
ambulance and went home instead, but after dinner, the pain moved up the back of his
neck and increased (Id.). Plaintiff testified that at the time of the hearing, he had two
surgeries on his low back and his doctor was recommending a third (Tr. 274; 277).
Plaintiff also testified that he had one neck surgery (Tr. 275; 277). Plaintiff wore a thoracic
brace because he has three degenerative disks in his thoracic region and there is nothing
that the doctors can do besides instruct him to wear the brace (Tr. 275). Plaintiff testified
he is supposed to wear the brace whenever he is up for a period of time, but that he has
to take breaks from the brace so his spine does not depend on it (Id.). Plaintiff takes
medications for his injuries, has completed physical therapy, and received injections (Tr.
276). These other treatments did not help, so Plaintiff explained that his doctor wanted to
do another surgery (Id.).
Plaintiff testified he is most comfortable laying down and when he isn’t, he has to
adjust himself multiple times. In fact, he had to adjust his position multiple times at the
hearing (Tr. 275). Plaintiff testified that the pain is constant, but it does vary in intensity
throughout the day (Tr. 277). Moving around, which Plaintiff described as walking,
sitting, laying down, and reclining, helps the pain, but he gets the most relief from pain
while reclining and laying down so gravity is not pulling on his spine (Id.). Plaintiff
testified that he usually reclines most of the day (Id.). At this time, Plaintiff cannot lift
more than 15 lbs. (Id.).
Plaintiff explained that he cannot stand or walk for two hours at a time without
having to sit down (Tr. 278). For example, Plaintiff struggles to complete a trip to
Walmart, which usually lasts 20-30 minutes (Id.). He cannot sit for two hours at a time
(Id.). He explained that his doctor is around 45 minutes from his home and he, at times,
has to stop on the way to the doctor to get out of the car and move around (Tr. 279). The
medicine he takes for the pain causes him to be dizzy and sleepy (Id.).
Plaintiff’s attorney questioned him as well. Plaintiff testified that on a 1 to 10 scale
(with 10 being intense pain that requires an immediate emergency room visit), his pain,
in general, is around a 4 with medication (Tr. 282). Without medication, though, Plaintiff
testified the pain is so significant he would not want to live (Tr. 282). Plaintiff explained
that on average, “over 20” days a month, his pain is greater than a 4 and can go up to a
10 (Tr. 282-283). Plaintiff testified that he has one good day, where the pain is a 2 or 3,
about once every 1-2 weeks (Tr. 283). Plaintiff explained that he cannot sleep at night and
usually gets about 1-2 hours of sleep before having to get up to relieve the pain and get
more pain medications (Tr. 283-284). On average, Plaintiff gets around 1-2 hours of full
sleep (Tr. 284). Prior to the accident, Plaintiff explained that he loved to camp, fish, hunt,
ride motorcycles, and play in the yard with his kids, but he has not been able to do any
of these hobbies and activities since the accident (Tr. 285). Plaintiff explained that he
would not be able to do a job where he would have to sit or stand during the day,
inspecting something on an assembly line or something similar, because he would not be
able to concentrate due to the pain (Id.). While his neck surgery was fairly successful and
he only has occasional neck pain, the majority of his pain is centered in his midback and
lower back, as well as his left leg and foot (Tr. 286).
Plaintiff testified that he had an independent medical examination with a Dr.
Mirkin for worker’s compensation and he met with Dr. Mirkin for around 3-5 minutes
(Tr. 286).
A VE also testified at the hearing. The VE testified that his testimony was
consistent with the DOT and if the DOT was silent on anything, the VE testified based on
his experience and education (Tr. 287-288; 292). The VE assessed Plaintiff’s prior work as
a warehouse worker, tire distribution center (DOT number 922.687-058) as having an
exertional level of medium, unskilled and a Specific Vocational Preparation (“SVP”) level
of 25, but as Plaintiff described it, the VE believed it was more consistent with very heavy,
unskilled work (Tr. 288). The ALJ asked the VE to assess a hypothetical person younger
than Plaintiff who has a limited education and shares Plaintiff’s past work experience and
if this hypothetical person could perform the demands of light work; occasionally climb
ramps and stairs, but never climb ladders, ropes, or scaffolding; and could occasional
balance (Tr. 288-89). With these limitations, the ALJ asked the VE to determine if there
was any light, unskilled occupations the hypothetical person could perform and the VE
answered in the affirmative. The VE said this person could perform the work of an
unskilled assembler (DOT 706.684-022), which is light, unskilled work with
approximately 295,000 jobs in the national economy (Tr. 289). The second job is that of an
unskilled hand packer position (DOT 920.687-018), which is unskilled and has
approximately 311,000 jobs (Tr. 289). The final job the VE testified this hypothetical
5 Specific vocational preparation, or “SVP”, is the amount of time required for a typical claimant to: learn
the techniques, acquire the information, and develop the facility needed for average performance in a job.
A claimant may acquire SVP in a school, military, institutional, or vocational environment through such
settings as: vocational training, apprenticeship training, in plant training, on-the-job training, and essential
experience in other jobs. For example, a registered nurse has an SVP of seven, which means that a claimant
can learn this job in about 2-4 years. If the job is assessed as an SVP of 1, it means that only a short duration
is needed to learn the job. In this case, a 2 means that it would take up to 1 month to learn the job. See here
DI 25001.001 Medical and Vocational Quick Reference Guide, available at
https://secure.ssa.gov/poms.nsf/lnx/0425001001#a7 (last accessed March 15, 2022).
person could complete was that of a light, unskilled inspector position (DOT 727.687-
062), of which there are 117,000 jobs nationwide (Tr. 289).
The ALJ then asked the VE to assume the same hypothetical limitations except that
this time, the VE should assess someone who requires sedentary work, as opposed to
light, and that this individual can stoop, kneel, crouch, and crawl. The VE testified that
there would be some sedentary, unskilled work this person could complete (Tr. 289-290).
For example, this person could do a sedentary, unskilled assembler (DOT 713.687-018),
of which there are 34,000 jobs nationwide (Tr. 290). He could also be a sedentary,
unskilled hand packer (DOT 559.687-014), of which there are 21,000 positions (Id.).
Finally, the VE testified that this person could complete the work of a sedentary, unskilled
inspector position (DOT 739.687-182) of which there are 12,000 jobs nationwide (Id.). The
VE testified that even if someone had to change positions (from seated to standing or vice
versa) every 10 minutes, they could do the sedentary positions as described and would
likely be able to keep up with the quality and quantity of productivity required in these
positions (Tr. 291). With that said, the VE testified that it was hard to predict the number
of employers who would allow this accommodation, so there would be a reduction in the
numbers of available jobs he testified to (Id.). The VE testified that if the hypothetical
person needed to walk away or lay down for relief every hour, there would be no work
at the sedentary or light level this person could maintain (Tr. 292). The VE explained that
for unskilled work, one day of absenteeism is allowed per work month (Id.).
Plaintiff’s attorney questioned the VE, and asked whether employers of unskilled
professionals tolerate off-task time, and the VE explained that while employers vary, they
generally tolerate no more than 15% of off-task time (Tr. 292-293). The VE also explained
that outside of regularly scheduled breaks (which would be a 10 or 15-minute break in
the first half of the day; a meal in the middle for approximately 30 minutes; and a second
10 or 15 minute break in the second half of the day), an employer would not allow an
employee to lie down (Tr. 293).
3. Relevant Medical Records
Plaintiff submitted medical records from a variety of providers to aid the ALJ in
his determination.
Plaintiff was injured in a motor vehicle collision in February 2015 (Tr. 699). At the
emergency room after the accident, Plaintiff complained of neck and thoracic pain, which
was more noticeable on the left side and was getting worse over time (Tr. 699). X-rays of
his cervical, thoracic, and lumbar spine were generally negative (Tr. 697; 702-704).
Plaintiff was seen for short-term physical therapy after being referred by his primary care
physician, Dr. Robert Frost (Tr. 813-821).
Dr. Bernard Rerri, MD, is Plaintiff’s treating orthopedic surgeon. Dr. Rerri first
started seeing Plaintiff on July 28, 2015 and reported that he saw him monthly after that
(Tr. 969). Dr. Rerri identified Plaintiff’s previous neck fusion6, laminectomy7, thoracic
6 A neck fusion is a surgical remedy for issues with neck vertebrae, in which a damaged disk is removed,
a bone graft is inserted, and the vertebrae are fastened together with a plate and screws. See MAYO CLINIC,
Fusion from front of neck, https://www.mayoclinic.org/tests-procedures/spinal-fusion/multimedia/img-
20156133 (last visited March 15, 2022).
7 Laminectomy is a surgery that creates space by removing the lamina (back part of a vertebra that covers
the spinal canal). This is also known as decompression surgery. The surgery enlarged the spinal canal to
relieve pressure on the spinal cord or nerves. See MAYO CLINIC, Laminectomy,
spondylosis8, and lumbar disk herniation9 as severe conditions (Tr. 969). Dr. Rerri
explained that Plaintiff’s neck, back, and leg pain have lasted over twelve months and
result in approximately 6 bad days in a 28-day period (Tr. 969). He explained that
Plaintiff’s ability to stand, walk, and sit are limited to 10-minute intervals and for two
hours in an 8-hour day (Id.). At the time of completing this impairment questionnaire, Dr.
Rerri explained that Plaintiff was not working, so he could not say if the patient would
need a job that permits movement changes (Tr. 970). Dr. Rerri noted that Plaintiff would
be off task for 40% of the workday and requires a back brace (Id.). Dr. Rerri explained
Plaintiff’s postural limitations, which included crouching, squatting, stooping, bending,
climbing stairs, and climbing ladders due to his ailments (Id.). Dr. Rerri outlined that
Plaintiff would miss approximately 2 days of work a week due to his impairments (Id.).
About five months after the accident, Plaintiff had an MRI on July 15, 2015, which
showed L5-S1 10 level disc degeneration with broad-based left paracentral and
https://www.mayoclinic.org/tests-procedures/laminectomy/about/pac-20394533 (last visited March 15,
2022).
8 Thoracic spondylosis refers to the wear and tear that happens to vertebrae (spinal bones) over time,
resulting (at times) in bony disks and joints cracking. See HEALTHLINE, Thoracic Spondylosis Symptoms and
Treatment, https://www.healthline.com/health/thoracic-spondylosis (last visited March 15, 2022).
9 A herniated disk refers to a problem with one of the rubbery cushions (disks) that sit between the bones
(vertebrae) that stack to make your spine. See MAYO CLINIC, Herniated Disk,
https://www.mayoclinic.org/diseases-conditions/herniated-disk/symptoms-causes/syc-20354095 (last
visited March 15, 2022). A lumbar herniated disk refers to a herniated disk in the lower part of the back,
comprised of five vertebral bodies (L1-L5) that extend from the lower thoracic spine (the chest) to the
sacrum (bottom of the spine). See SPINE-HEALTH, Lumbar Spine Definition, https://www.spine-
health.com/glossary/lumbar-spine (last visited March 15, 2022).
10 The L5-S1 spinal motion segment is the transition region between the lumbar spine and the sacral spine
in the lower back. Because of its position and distinctive anatomy, it receives a higher degree of mechanical
stress and loads compares to the segments above it. These characteristics make the L5-S1 susceptible to
traumatic injuries, degeneration, disk herniation, and/or nerve pain. See SPINE-HEALTH, All about L5-S1
posterolateral disk protrusion and a small disk extrusion which obliterate the left lateral
recess and also causes moderate narrowing of the left neural foramen and moderate
central canal stenosis11 (Tr. 668-69). Dr. Rerri performed lumbar surgery on June 2, 2016,
which consisted of a hemilaminectomy and diskectomy12 at L5-S1 (Tr. 654-55). Almost
one year later, Plaintiff had an MRI that demonstrated post-surgical findings of fluid
collection adjacent to the laminectomy site, which was causing Plaintiff significant pain
(Tr. 615-616). On August 22, 2016, due to Plaintiff’s complaints of pain, Dr. Rerri
performed a second surgery at the L5-S1 level, during which he drained a subfascial
seroma and addressed residual stenosis at L5-S1 left lateral recess and performed a left
L5-S1 hemilaminectomy and decompression (Tr. 599-600). Plaintiff was seen for physical
therapy two days later, at which time he was given the goals of improving trunk
flexibility to 75% of normal, display increased trunk rotational movements with his gait,
and demonstrate a less guarded posture in 8 weeks (Tr. 567-568). Plaintiff attended
physical therapy as scheduled, which occurred through mid-October 2016 (Tr. 571-579).
(Lumbosacral Joint), https://www.spine-health.com/conditions/spine-anatomy/all-about-l5-s1-
lumbosacral-joint (last visited March 15, 2022).
11 Stenosis is a narrowing of the spaces within your spine, which can put pressure on the nerves that
travel through the spine. See MAYO CLINIC, Spinal Stenosis, https://www.mayoclinic.org/diseases-
conditions/spinal-stenosis/symptoms-causes/syc-20352961 (last visited March 15, 2022).
12 A laminectomy is a surgery that creates space by removing parts of the vertebra that cover the spinal
canal. It is also known as a decompression surgery, as it enlarges the spinal canal to relieve pressure on the
spinal cord and nerves. See MAYO CLINIC, Laminectomy, https://www.mayoclinic.org/tests-
procedures/laminectomy/about/pac-20394533 (last visited March 15, 2022). A diskectomy is a surgical
procedure to remove the damaged portion of a herniated disk in the spine. A herniated disk can irritate or
compress nearby nerves, so a diskectomy is effective for treating pain that radiates down arms/legs. See
MAYO CLINIC, Diskectomy, https://www.mayoclinic.org/tests-procedures/diskectomy/about/pac-
20393837 (last visited March 15, 2022).
During Plaintiff’s September 23, 2016 physical therapy session, the therapist noted
that Plaintiff was holding his body in a “guarded position,” likely due to pinched nerves
in his neck (Tr. 576). Plaintiff had an MRI on September 19, 2016 of his cervical spine (as
ordered by Dr. Rerri (Tr. 580). The MRI revealed that Plaintiff had degenerative disk
disease with a small left paracentral herniated nucleus pulsus at the C5-C6 level13 which
indented the ventral aspect of the thecal sac and impinged on the ventral aspect of the
cervical cord and ipsilateral nerve root and also borderline central canal stenosis at C6-
C7 (Id.).
Plaintiff’s last physical therapy session was on October 3, 2016. The physical
therapist noted that while Plaintiff was improving, he does need breaks for pain in his
neck (Tr. 574). The note also indicates that Plaintiff was discharged from physical therapy
by his doctor so that Plaintiff could try shots to address his pain (Id.). The physical
therapist indicated that Plaintiff would benefit from more physical therapy, as he had not
met any of the goals at that time, and he was still experiencing numbness and tingling in
his left lower extremity (Tr. 582).
On October 25, 2016, Shane Fancher, MD, a pain clinic physician, evaluated
Plaintiff for complaints of neck pain (Tr. 564-565). Dr. Fancher described that Plaintiff was
experiencing “severe” pain across his shoulder area and had herniated disks at both C5-
13 The C5-C6 spinal motion segment (located in the lower cervical spine just above the C7 vertebra)
provides flexibility and support to much of the neck and the head above. See SPINE-HEALTH, All About the
C5-C6 Spinal Motion Segment, https://www.spine-health.com/conditions/spine-anatomy/all-about-c5-
c6-spinal-motion-segment (last visited March 15, 2022).
6 and C6-7, which caused some spinal stenosis. The pain prevented Plaintiff from
sleeping since it was a constant burning and throbbing feeling, which Plaintiff described
as a “7/10” on the day of the examination and, on average, a “5/10” most days (Tr. 564).
While medication helped the pain, Plaintiff reported that the pain is constant and is worse
with sitting, standing, driving, sneezing, lifting, bending, and sex (Id.). Dr. Fancher noted
that Plaintiff could not raise his arms overhead or look up without pain, and that he had
tenderness in his neck around the C6-C7 level (Tr. 565). Dr. Fancher recommended a low
volume epidural steroid injection at the left C6-7 as treatment (Id.). Dr. Fancher
performed the injection at Plaintiff’s C5-C6 level on November 15, 2016 (Tr. 563). He then
performed a second epidural steroid injection at the C6-C7 level on December 16, 2016
(Tr. 559). Dr. Fancher advised it would be better to operate and fix the issues in Plaintiff’s
neck rather than continue to do injections (Tr. 934).
Plaintiff returned to Dr. Rerri on August 10, 2017 for the same constant neck pain
affecting his left arm (Tr. 859). Plaintiff also explained experiencing pain affecting his left
leg. Dr. Rerri and Plaintiff decided to move forward with surgery - an anterior cervical
decompression and fusion of the neck, which Dr. Rerri performed on November 16, 2017
(Tr. 720; 722-724). Dr. Rerri noted prior to surgery that the MRI of Plaintiff’s cervical spine
showed cord compression at C5-6 and C6-7 consistent with Plaintiff’s complaints (Tr.
720). Plaintiff had a post-operative visit on December 1, 2017, during which he said he
was “overall better,” but complained of right shoulder pain and numbness to the left
forearm and fingers (Tr. 865). Plaintiff returned for a second follow-up appointment on
December 21, 2017, during which he complained of lower back pain, left leg numbness,
and continued numbness of the forearm and fingers of his left arm (Tr. 866).
Dr. Rerri referred Plaintiff back to physical therapy and an evaluation was
performed on January 5, 2018 (Tr. 867-871). At the time, Plaintiff reported that his neck
pain had improved from the surgery and ranges from a 0/10 (when resting comfortably)
to a 4/10 when doing activities (Tr. 867). Overall, Plaintiff reported that his neck is 70%
better, but his back pain is significant and the “primary limiter” at the time (Tr. 870).
Plaintiff returned to Dr. Rerri’s office on March 22, 2018 and complained of
thoracolumbar pain with forward radiation (Tr. 895). Dr. Rerri noted that Plaintiff is in
“stable chronic pain on narcotics” (Id.). Plaintiff returned for an appointment with Dr.
Rerri on May 4, 2018 and explained that he was having more trouble with his back and
leg (Tr. 896). The issues with Plaintiff’s back pain and left leg numbness continued
throughout Plaintiff’s follow-up appointments on August 3 and August 8, 2018 (Tr. 898,
900). Therefore, Dr. Rerri ordered an MRI of Plaintiff’s thoracic spine, which occurred on
August 20, 2018 (Tr. 900). The MRI revealed that Plaintiff had a disk bulge at T6-T714 and
no significant spinal stenosis or neural foraminal stenosis (Tr. 900). Because Plaintiff was
still exhibiting persistent mid-thoracic back pain that was not helped by the epidurals or
medications, Dr. Rerri prescribed a thoracic lumbar sacral orthosis brace (TLSO) (Tr. 899;
1023). Additionally, Dr. Rerri instructed Plaintiff to see his primary care physician to
exclude non-spinal causes for this chronic pain (Tr. 1024).
14 The thoracic spine has 12 nerve roots (T1-T12) on each side of the spine that branch from the spinal
cord and control motor and sensory signals for the upper back, chest, and abdomen. See SPINE-HEALTH,
Thoracic Spinal Nerves, https://www.spine-health.com/conditions/upper-back-pain/thoracic-spinal-
nerves (last visited March 15, 2022).
In December 2018, Dr. Rerri ordered a CT scan of Plaintiff’s cervical spine (Tr.
1015). The CT scan demonstrated that Plaintiff had mild cervical disk degeneration and
mild spinal canal stenosis at C6-7, with foraminal narrowing at C3-C4, C5-C6, and C6-C7
(Tr. 987-988).
Dr. Rerri ordered another MRI in April 2019, after seeing Plaintiff on April 19 and
hearing his complaints of new onset low back pain and bilateral leg pains that were worse
on the right side (Tr. 1026). The MRI occurred on May 7, 2019 and showed that Plaintiff
had broad-based disk herniation with severe left foraminal encroachment, which caused
compression on the nerve at L5-S1 (Tr. 1018). At the L4-L5 level, the MRI showed that
Plaintiff has a midline protrusion of disk material and a midline small disk herniation
with moderate central canal stenosis (Tr. 1018-1019). The radiologist explained that
Plaintiff’s symptoms may be extending from a left S2 nerve root sleave (Tr. 1019).
After reviewing this MRI, Dr. Rerri ordered a left L4 and L5 epidural steroid
injection as treatment based on the MRI on June 13, 2019 (Tr. 1020; 1027). Plaintiff testified
at the hearing before the ALJ that this June injection was unsuccessful and he did not get
relief from it so Dr. Rerri was discussing whether to do a third surgery (fourth overall)
on Plaintiff (Tr. 276).
On January 16, 2020, Dr. Rerri performed a left L5-S1 revision hemilaminectomy
and decompression (Tr. 237-238).
4. Agency Forms
In a Function Report submitted on April 19, 2018, Plaintiff detailed that he cannot
lift, squat, stand for long periods of time, sit for long periods of time, and cannot put on
his own socks (Tr. 451). He further explains that his wife takes care of him and prior to
his injury, he could do “everything” (Tr. 452). He explains that he cannot do chores or
cook anymore, but he will go to the grocery store with his wife for 20-30 minutes
maximum and only when needed (Tr. 452-454). Prior to his injury, he liked to fish and
watch races at the track, but cannot do those activities anymore due to his injury (Tr. 455).
Plaintiff’s wife also submitted a Function Report, dated on or around April 19,
2018 (Tr. 429), in which she described that Plaintiff cannot “do anything” without being
in pain (Tr. 430). She further explains that she has to do everything for the family because
all Plaintiff can do is recline in the recliner or lay down due to his pain (Tr. 430-431). She
described that Plaintiff cannot cook, do yard work, play with their kids, or even have any
hobbies due to the severe pain (Tr. 429-434). She said his depression makes it difficult for
him to get motivated, but he is able to cook his own meals (Tr. 204-205).
Plaintiff filled out another Function Report, dated September 7, 2018, in which he
detailed that he cannot lift more than 15 lbs. and is unable to stand, sit, or walk for long
periods of time (Tr. 472). In fact, he has to switch positions from sitting to standing and
vice versa every 30 minutes. Id. He explained that his wife takes care of everything and
he cannot put socks or shoes on by himself (Tr. 473). He explains he isn’t able to do any
chores, like the laundry or yard work, due to pain (Tr. 474-475).
5. State Agency Consultants’ Opinions
In connection with Plaintiff’s application for benefits, the ALJ also considered
evidence and opinions from State Agency Consultants.
Dr. Michael Nenaber, MD (an internal medicine physician) completed an RFC
report dated June 19, 2018 at the request of the State agency (Tr. 301). Dr. Nenaber
determined that Plaintiff could complete light work; sit and stand for approximately 6
hours in an 8-hour workday; and could frequently lift 10 pounds while occasionally
lifting 20 pounds (Tr. 301-302). Additionally, Dr. Nenaber determined that Plaintiff had
no postural, manipulative, visual, communicative, or environmental limitations (Tr. 302).
Dr. Marion Panepinto, MD (an internal medicine physician), also completed an
RFC report dated September 26, 2018 at the request of the State agency (Tr. 315). Dr.
Panepinto also determined that Plaintiff could occasionally climb ramps and stairs (as
well as balance), but never climb ladders, ropes, or scaffolds (Tr. 314). Dr. Panepinto
determined that Plaintiff’s ability to stoop, kneel, crawl, and crouch was “unlimited” (Tr.
314). Additionally, in the section in which Dr. Panepinto was to explain the postural
limitations and what evidence was used to determine those limitations, Dr. Panepinto
simply stated “see above” (Tr. 314).
6. Worker’s Compensation Consulting Medical Examiners
Plaintiff submitted records from his worker’s compensation application. Dr. Peter
Mirkin, MD (an orthopedic spine surgeon) conducted a medical examination of Plaintiff
on September 23, 2015 at the request of the worker’s compensation carrier for Plaintiff’s
employer (Tr. 902). Dr. Mirkin reviewed medical records as well as conducted a physical
examination of Plaintiff, and determined he could return to work without restrictions and
there was no rationale for Plaintiff to have taken off work in August 2015 (Tr. 905). Dr.
Mirkin reviewed additional medical records not previously reviewed, and issued two
separate opinions on January 17, 2017 and April 25, 2017 stating that his opinion was
unchanged from his original September 23, 2015 report (Tr. 909-911; 912-914).
Plaintiff was also seen by David T. Volarich, DO, who completed a report dated
August 14, 2019 (Tr. 1032). Dr. Volarich reviewed Plaintiff’s medical records and
conducted a physical examination. Dr. Volarich determined that Plaintiff had reached the
maximum medical improvement based on the treatment provided up until the date of
the report (Tr. 1041). Additionally, Dr. Volarich determined that Plaintiff should perform
work-related activities “to tolerance” (including both standing and sitting) and Plaintiff
should “change positions frequently to maximize comfort and rest when needed” (Tr.
1041-42).
Analysis
In this appeal, Plaintiff advances two main arguments in support of his contention
that remand is appropriate. He asserts that the ALJ erred in the course of making his RFC
determination by independently interpreting radiographic evidence regarding Plaintiff’s
spine (Doc. 21-1, p. 9). Second, he asserts that the ALJ erred in formulating his RFC by
not obtaining missing records from Dr. Rerri (Id. at p. 11).
Defendant argues that the ALJ’s decision is supported by substantial evidence, as
he based the RFC determination on the record as a whole. Additionally, Defendant
argues that Plaintiff has the burden of production and persuasion for steps one through
four of the analysis, with the burden shifting to Defendant only at step five (Doc. 22, p.
8). Ultimately, the ALJ was not required to recontact Dr. Rerri for additional treatment
notes (Id. at p. 6). Finally, Defendant argues that Plaintiff was represented by counsel at
the hearing and did not produce an opinion for an examining medical provider that
would support further or greater limitations than those found by the ALJ; therefore,
Plaintiff’s arguments fail and remand would be improper.
Plaintiff’s main argument is that the ALJ did not properly develop the RFC. The
RFC is a measure of what an individual can do despite his limitations. Young v. Barnhart,
362 F.3d 995, 1000–01 (7th Cir. 2004); 20 C.F.R. §§ 404.1545(a), 416.945(a). The
determination of a claimant's RFC is a legal decision rather than a medical one. Diaz v.
Chater, 55 F.3d 300, 306 n.2 (7th Cir. 1995); see also Thomas v. Colvin, 745 F.3d 802, 808 (7th
Cir. 2014). “RFC is an assessment of an individual's ability to do sustained work-related
physical and mental activities in a work setting on a regular and continuing basis. A
‘regular and continuing’ basis means 8 hours a day, for 5 days a week, or an equivalent
work schedule.” SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). “The RFC assessment is
a function-by-function assessment based upon all of the relevant evidence of an
individual's ability to do work-related activities.” Id. at *3.
The ALJ determined that while Plaintiff’s medically determinable impairments
could reasonably be expected to cause the alleged symptoms, the intensity, persistence,
and limiting effect described by Plaintiff was not consistent with the evidence in the
record as a whole, including the medical evidence (Tr. 251). To reach this determination,
the ALJ relied on Plaintiff’s medical records, but ultimately found that Plaintiff could still
work because his allegations of debilitating physical impairments were contradicted by
the “generally stable, physicians’ interpretations of objective findings from imaging,
physicians’ interpretations of objective findings on physical examinations, and
conservative treatment with medications” (Tr. 253). The ALJ noted that Dr. Rerri did not
increase Plaintiff’s pain medication and that Plaintiff was not in “acute distress” when
seeking treatment from Dr. Frost. Additionally, the ALJ noted that while Plaintiff
underwent surgeries, which indicates that his symptoms were “genuine,” the course of
his surgeries had concluded and his course of treatment is stable (Tr. 251; 253).15 As such,
the RFC was appropriate.
Plaintiff argues that the ALJ impermissibly interpreted two MRI results on his
own, including one from May 2019 and one from July 2015. It is well established that “an
ALJ may not ‘play[ ] doctor’ and interpret ‘new and potentially decisive medical
evidence’ without medical scrutiny.” Randall R. L. v. Comm'r of Soc. Sec., No. 1:19-CV-141-
MGG, 2021 WL 717529, at *3 (N.D. Ind. Feb. 23, 2021) (citing McHenry v. Berryhill, 911 F.3d
866, 871 (7th Cir. 2018)) (alteration in original)
(quoting Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014)); see also Moon v. Colvin, 763
F.3d 718, 722 (7th Cir. 2014); Akin v. Berryhill, 887 F.3d 314, 317–18 (7th Cir. 2018); Whitney
v. Schweiker, 695 F.2d 784, 788 (7th Cir. 1982). Courts give ALJs some freedom to
determine exactly “how much evidence is sufficient to develop the record fully and what
measures (including additional consultative examinations) are needed in order to
accomplish that goal.” Id., quoting Poyck v. Astrue, 414 F. App'x 859, 861 (7th Cir. 2011).
“An ALJ need recontact medical sources only when the evidence received is inadequate
15 The Court notes that the ALJ determined that Plaintiff’s treatment was stable despite Plaintiff’s
testimony that his doctor wanted to conduct another surgery (Tr. 274, 276-277), which was performed on
January 16, 2020 (Tr. 237-238), after the ALJ’s decision was issued.
to determine whether the claimant is disabled.” Id. (quoting Skarbek v. Barnhart, 390 F.3d
500, 504 (7th Cir. 2004)).
The Court will focus its examination on Plaintiff’s May 2019 MRI results.16 These
results appear in the ALJ’s decision when he explains why he believes Plaintiff is only
capable of sedentary work, as opposed to light work (Tr. 254). He explains that while the
light exertional level was consistent with the record prior to May 2019, the new treatment
records support finding he is capable of a sedentary exertional level. In support, the ALJ
cites to two exhibits—13F/26 and 13F/19—and explains he is modifying the
determination by the State agency physicians that Plaintiff could perform light work
based on Plaintiff’s symptoms as presented to his providers and at the hearing (Tr. 254-
255). Additionally, the ALJ determined that this modification of the state agency
physicians’ recommendations is based on “a commonsense consideration that a person
with left leg numbness and back pain would likely have difficulty with the standing and
walking requirements associated with light work” (Tr. 255).
A close look at exhibit 13F/19 shows that the ALJ is citing to Plaintiff’s MRI results
from May 7, 2019 (Tr. 1018). The MRI results indicate that Plaintiff has a far left lateral
protrusion of his disk and mild stenosis at L5-S1; midline protrusion of his disk at L4-L5
midline broad-based small disk herniation with moderate central canal stenosis; and mild
posterior protrusion of his disk at L2-L3 (Tr. 1018). Exhibit 13F/26 is a patient log from
16 The Court is not convinced that the ALJ impermissibly interpreted the July 2015 MRI results, as it appears
the ALJ simply summarized the MRI results, which is allowable and will be explained further in this Order
(See Tr. 251).
Plaintiff’s March 15, 2019 visit to Dr. Rerri’s office (Tr. 1025). In this medical note, Dr.
Rerri indicates that Plaintiff is in “stable chronic pain,” and, “uses thoracic brace” (Tr.
1025). The note also indicates that Plaintiff is prescribed Norco 10-325mg every 6-8 hours.
Based on the ALJ’s decision, it appears he disagrees with the state agency physicians who
determined that Plaintiff actually needed more limited work based on two medical
records that were not before the state agency physicians when they conducted their
reviews on June 19, 208 and September 26, 2018 (Tr. 301, 315).
Plaintiff argues the ALJ impermissibly interpreted this MRI result to reach this
decision. In support, Plaintiff cites to a series of cases. In response, Defendant does not
directly address Plaintiff’s argument; rather, Defendant cites to other portions of the
ALJ’s decision to show that the ALJ relied on a totality of the evidence to reach his
decision, never acknowledging whether the ALJ impermissibly interpreted the MRI
results without a required medical opinion (Doc. 22, p. 4). Plaintiff is correct and remand
is appropriate.
An ALJ is permitted to summarize medical records, of course in the discussion of
medical history in his decision. In fact, “accurate paraphrasing of the ‘impressions’ listed
in x-ray files is not the Court’s concern.” Theresa M. v. Saul, No. 19 C 3135, 2020 WL
7641286, at *5 (N.D. Ill. Dec. 23, 2020)(quoting Brown v. Barnhart, 298 F. Supp. 2d 773, 791
(E.D. Wis. 2004)) (holding ALJ did not play doctor by rephrasing the impression of a
physician who reviewed the MRI); Michael B. v. Berryhill, No. 18 C 236, 2019 WL 2269962,
at *7 (N.D. Ill. May 28, 2019) (finding ALJ did not play doctor by citing to an MRI and
summarizing the radiologist's conclusions). That isn’t the case here with the May 2019
MRI. The ALJ modified the recommendations of the state agency physicians based on the
May 2019 MRI. Plaintiff cited to three cases in support of his argument—Lambert v.
Berryhill; Akin v. Berryhill; and McHenry v. Berryhill—and the Court agrees they are
analogous.
The ALJ and the Commissioner are not medical experts qualified to interpret MRI
reports. “ALJs must rely on expert opinions instead of determining the significance of
particular medical findings themselves.” Crystal D. H. v. Comm'r of Soc. Sec., No. 20-CV-
742-RJD, 2022 WL 488142, at *4 (S.D. Ill. Feb. 17, 2022) (citing Lambert v. Berryhill, 896 F.3d
768, 774 (7th Cir. 2018)). In Akin, the ALJ interpreted MRI results that became part of the
record after the state agency physicians had completed their review, like in this case. Akin
v. Berryhill, 887 F.3d 314, 317 (7th Cir. 2018). How the ALJ interpreted the MRI results was
also similar, as the Akin ALJ determined, on his own, that the MRI results were consistent
with the plaintiff’s complaints and used this determination to formulate the RFC. Id. The
Seventh Circuit determined that “without an expert opinion interpreting the MRI results
in the record, the ALJ was not qualified to conclude that the MRI results were ‘consistent’
with his assessment.” Id. Explaining further, the MRI results “may [have] corroborate[d]
Akin's complaints, or they may [have] len[t] support to the ALJ's original interpretation,
but either way the ALJ was not qualified to make his own determination without the
benefit of an expert opinion.” Id. at 317-18. The Seventh Circuit consequently remanded
the case “because the ALJ impermissibly interpreted the MRI results himself.” Id. at 318.
Even Defendant’s tangential argument that the ALJ relied on other evidence does
not save the Commissioner’s case. Defendants in similar cases have made this argument
and courts have determined that it is not an appropriate defense. See Crystal D. H., 2022
WL 488142 at *4 (“The imaging evidence in both Akin and McHenry also did not “stand
alone in a vacuum” and the ALJs in those cases also considered the testimony of the
plaintiffs as well as other medical evidence and medical opinions in arriving at their
conclusion. Akin is clear that “without an expert opinion interpreting the MRI results in
the record, the ALJ was not qualified to conclude that the MRI results were ‘consistent’
with his assessment.”) (internal citation omitted). In fact, the Seventh Circuit is explicit
that MRIs, which consist of technical language, do not lend themselves to summary
conclusions made by lawyers and judges unfamiliar with medical documentation and
reports, and MRI results must be evaluated by a doctor. Israel v. Colvin, 840 F.3d 432, 439
(7th Cir. 2016).
The remedy for a situation like this touches on Plaintiff’s second argument in favor
of remand, which is that the ALJ erred in not obtaining missing records from Dr. Rerri.
The Seventh Circuit has made it clear that in these situations, the ALJ should seek
additional records. For example, in Akin v. Berryhill, after determining the ALJ was
unqualified to make his own determination as to medical records without an expert
opinion, the Seventh Circuit held, “The ALJ had many options to avoid this error; for
example, he could have sought an updated medical opinion.” Akin, 887 F.3d at 317-18,
quoting Green v. Apfel, 204 F.3d 780, 782 (7th Cir. 2000). District Courts have found
similarly. See Theresa M. v. Saul, No. 19 C 3135, 2020 WL 7641286, at *4 (N.D. Ill. Dec. 23,
2020), citing Hughes v. Berryhill, No. 17 C 5468, 2018 WL 3647112, at *8 (N.D. Ill. Aug. 1,
2018) (“The Hughes Court determined that, ‘[w]ithout an expert opinion from a medical
source,’ the ALJ was ‘not qualified to conclude that mild bilateral patellofemoral joint
space narrowing [was] inconsistent with [the claimant's] complaints of knee pain and
limitation’.”). In both of these cases, the courts remanded the decision and ordered the
ALJ on remand to seek expert medical opinions to review and interpret the medical
records to assist the ALJ in formulating the RFC.
Ultimately, the purpose of the ALJ is to “build an accurate and logical bridge
between the evidence and the result.” Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014).
Here, the ALJ failed to meet that burden by improperly interpreting Plaintiff’s MRI
results to modify the RFC. Additionally, the ALJ erred in not seeking out additional
medical information to review and interpret the medical records. As such, remand is
proper.
The Court wishes to stress that this Memorandum and Order should not be
construed as an indication that the Court believes that plaintiff was disabled during the
relevant period or that he 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: March 18, 2022
s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge