Pruiett v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ABRAHAM M. P.,1 )

)

Plaintiff, )

)

vs. ) Case No. 21-cv-1713-DWD

)

COMMISSIONER OF SOCIAL )

SECURITY, )

)

Defendant. )

MEMORANDUM AND ORDER

DUGAN, District 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) and

Supplemental Security Income (SSI) pursuant to 42 U.S.C. § 423 and 42 U.S.C. § 1383(c).

For the reasons discussed below, the final agency decision is due to be affirmed.

Procedural History

Plaintiff applied for DIB and SSI on August 22, 2019, alleging a disability onset

date of April 17, 2019 (Tr. 49). After holding an evidentiary hearing, an Administrative

Law Judge (“ALJ”) denied his application on May 27, 2021 (Tr. 61). The Appeals Council

denied Plaintiff’s request for review on October 20, 2021, making the ALJ’s decision the

final agency decision subject to judicial review. See 20 C.F.R. § 404.981. Plaintiff exhausted

administrative remedies and filed a timely complaint for judicial review.

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.

Applicable Legal Standards

To qualify for DIB and SSI, a claimant must be disabled within the meaning of the

applicable statutes.2 Under the Social Security Act, a person is disabled if he 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 12

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

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

her 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).

2 The statutes and regulations pertaining to Disability Insurance Benefits (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.

See Craft v. Astrue, 539 F.3d 668, 647, n.6 (7th Cir. 2008). For convenience, most citations herein are to the

DIB regulations.

Here, 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, the 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, 203 L. Ed. 2d 504 (Apr. 1, 2019)

(internal citations omitted). In reviewing for “substantial evidence,” the Court takes the

entire administrative record into consideration but 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; the Court does not act as a rubber stamp for the

Commissioner. See Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010).

The Decision of the ALJ

The ALJ followed the five-step analytical framework described above. At step one,

he determined that Plaintiff had not engaged in substantial gainful activity since the

alleged disability onset date and meet the insured status requirements of SSA through

December 31, 2020 (Tr. 51). At step two, the ALJ found that Plaintiff has the following

severe impairments: multiple injuries sustained in a car accident, headaches, and

insomnia (Tr. 52). The ALJ also found that Plaintiff has mental impairments of

dysthymia, bipolar disorder, and generalized anxiety disorder (Tr. 52). The ALJ

determined that Plaintiff had mild limitations in all four functional areas of mental

disorders in the Listings of Impairments, 20 CFR, Part 404, Subpart P, Appendix 1

(“Paragraph B criteria”) (Tr. 52-53), and were thus non-severe (Tr. 53).

At step three, the ALJ found that Plaintiff does not have any impairments or

combination of impairments that meet any of the listings set forth in the Listing of

Impairments (Tr. 53). The ALJ specifically referenced Listing 1.15 (Disorders of the

skeletal spine resulting in a compromise of a nerve root), Listing 1.16 (Lumbar spinal

stenosis resulting in a compromise of the cauda equine), Listing 1.17 (Reconstructive

surgery or surgical arthrodesis of a major weight-bearing joint), Listing 1.18

(Abnormality of a major joint in any extremity), along with guidance on headaches and

Listing 11.02 for epilepsy (Tr. 53-55).

Before proceeding to step four, the ALJ found that Plaintiff has the residual

functional capacity (“RFC”) to perform a range of light work (20 C.F.R. § 404.1567(b)),

defined as:

Sitting up to fifteen minutes at one time and four hours during an eight-

hour workday; standing and walking up to fifteen minutes at one time and

four hours during an eight-hour workday; lifting, carrying, pushing, and

pulling ten pounds occasionally and five pounds frequently; occasionally

climbing ramps and stairs, stooping, kneeling, crouching, and crawling; no

climbing ladders, ropes, or scaffolds; frequent reaching bilaterally; and

simple routine tasks with the ability to sustain the attention, concentration,

persistence, and pace needed to complete these tasks.

(Tr. 55).

At step four, the ALJ relied on the testimony of a vocational expert (“VE”) to find

that Plaintiff was unable to perform his past relevant work as a construction laborer and

car detailer (Tr. 60). However, the ALJ concluded that based on Plaintiff’s RFC, age,

education, and work experience, that Plaintiff could make a successful adjustment to

other work that exists in significant numbers in the national economy, including

unskilled (SVP-2) sedentary occupations of sorter, laminator, and order clerk (Tr. 61).

Accordingly, at step five, the ALJ found that Plaintiff was not disabled from the alleged

disability onset date through the date of his decision on May 27, 2021 (Tr. 61).

The Evidentiary Record

Plaintiff seeks disability based on the injuries he sustained after a car accident on

or about April 17, 2019. These injuries include back pain, left leg pain, memory loss,

sleeping issues, knee issues, pelvic issues, and constipation issues (Tr. 229). Plaintiff was

17 years old at the time of his accident (Tr. 205, 212). Plaintiff has completed high school,

and prior to his accident, Plaintiff worked as a custodian, and in construction and car

sales (Tr. 70, 230).

Relevant Medical Records

On April 18, 2019, Plaintiff presented to Hughston Trauma Department following

a motor vehicle accident (Tr. 361-362). Plaintiff sustained a fracture to his left knee, pelvis,

and back (Tr. 362, 354). Plaintiff immediately underwent back and knee surgery (Tr. 361-

362). John A. Mansour, D.O. performed Plaintiff’s knee surgery (Tr. 361). Dr. Mansour

cleaned and removed debris from the knee laceration and confirmed no penetration of

the knee joint (Tr. 362). Dr. Mansour closed the surgical site and indicated that Plaintiff’s

right pelvic fracture was nonoperative (Tr. 362). Timothy Hopkins, M.D. conducted

Plaintiff’s spine surgery (Tr. 362), performing an open reduction internal fixation of L1

burst fracture (Tr. 380). Following his surgeries, Plaintiff continued to be treated by Dr.

Mansour and Dr. Hopkins. He was also treated by his primary care physician, David

Davis, M.D. (Tr. 334-347, 382-390, 404-498).

A. Dr. Mansour

Plaintiff presented to Dr. Mansour for follow-up appointments on June 4, 2019 (Tr.

356), July 16, 2019 (Tr. 354), and October 22, 2019 (Tr. 359). On June 4, 2019, Plaintiff

reported no pain in his pelvis, with mild pain along the incision of his left knee (Tr. 357).

Dr. Mansour indicated that Plaintiff’s vital signs were stable, and his knee incision was

healing well without signs of infection (Tr. 357). Plaintiff had full range of motion in his

knee, active range of motion in his hip, and normal swelling (Tr. 357). Plaintiff was

“weight bearing as tolerated” with a cane and with no antalgic gait and advancing well

with physical therapy (Tr. 357). Plaintiff’s follow-up imaging showed progressive

healing in near anatomical alignment. By July 16, 2019, Plaintiff was weight bearing

without his cane or antalgic gait, and he had full range of motion in his knee, normal

swelling, no calf tenderness, active range of motion in his hip, and his balance had

returned (Tr. 355).

On October 22, 2019, Plaintiff returned for a final visit with Dr. Mansour. He again

reported no pain in his pelvis, but mild pain along his thigh. Plaintiff reported having a

recent CT which showed “ball of scar tissue in his thigh.” Plaintiff also reported seeing

a chiropractor for stretching and massage, which he reported gave some relief. Plaintiff

reported muscle aches, nervousness, irritability, depression, sleep disturbances, and

paranoia (Tr. 360). Dr. Mansour examined Plaintiff and found full range of motion in

Plaintiff’s knee, normal swelling, no calf tenderness, active range of motion in his hip,

muscle strength testing 5/5, and ability to weight bear without an assistive device or

antalgic gait. Plaintiff’s imaging continued to demonstrate progressive healing of the

fractures, and the fracture lines were no longer visible (Tr. 360). Dr. Mansour discussed

that he would normally release Plaintiff for a final physical therapy visit to help build his

endurance to return to work, but instead instructed Plaintiff to follow his neurosurgeon’s

recommendations due to the continued weight and bending restrictions for his back (Tr.

360). Dr. Mansour discussed waiting until after Plaintiff’s rods were removed from his

L1 bust fracture and his neurosurgeon’s restrictions were lifted before considering going

back to work (Tr. 360).

B. Dr. Hopkins

Plaintiff presented to Dr. Hopkins for follow-up appointments on July 16, 2019,

September 17, 2019, September 26, 2019, October 22, 2019, November 14, 2019, December

17, 2019, and June 2, 2020. On July 16, 2019, Plaintiff reported that he was doing “very

well” and not taking pain medication (Tr. 380). Plaintiff denied back pain and paresthesia

(Tr. 380). On examination, Dr. Hopkins indicated that Plaintiff has good bilateral strength

and sensation, erect posture, normal sagittal alignment, and that his incisions were well

healed (Tr. 380). Imaging revealed stability of the alignment and interval increase in

density of the fractured L1 vertebra indicating healing (Tr. 380). Dr. Hopkins assessed

that Plaintiff’s fracture was healing and recommended that Plaintiff discontinue use of

his back brace to begin increasing his level of activity (Tr. 380).

On September 17, 2019, Plaintiff reported pain in his left buttock and posterior hip,

occasionally extending down the back of his thigh (Tr. 378). Plaintiff reported that the

pain is worse with activity such as standing, walking and prolonged immobilization, but

he gets some relieve by lying down (Tr. 378). Dr. Hopkins observed that Plaintiff’s

wounds were well-healed, and his surgery site was nontender, but that he had tenderness

over the SI joint on the left superiority (Tr. 378). Plaintiff’s reflexes were 2+ symmetric

and his straight leg raise test elicits some pain in the left buttock at the same point (Tr.

378). Dr. Hopkins recommended proceeding with an MRI of the lumbar spine to

determine whether Plaintiff has any nerve root compression (Tr. 378). Plaintiff’s imaging

demonstrated stable appearance of his fused L1 segment, and Dr. Hopkins found no

evidence of any disc herniation, canal stenosis, foraminal stenosis or other compressive

pathology to explain Plaintiff’s hip symptoms (Tr. 376). Dr. Hopkins also observed good

bilateral strength and sensation, and normal gait and posture (Tr. 376).

On October 22, 2019, Plaintiff reported that his left hip was better after chiropractic

care and denied any new symptoms (Tr. 374). Dr. Hopkins observed mostly normal

findings on exam but indicated that Plaintiff was very thin, and the instrumentation was

palpable under his skin (Tr. 374). Dr. Hopkins reported that Plaintiff’s incisions were

well healed, and he had normal gait, motor strength in his upper and lower extremities

(Tr. 374). After assessing positive findings from Plaintiff’s CT imaging, Dr. Hopkins

recommended removing Plaintiff’s instrumentation to alleviate pain and reestablish

motion segments (Tr. 374-375). Plaintiff underwent the surgery to remove his

instrumentation, and by November 14, 2019, Dr. Hopkins indicated that his incisions

were well healed, and his back has a normal configuration with no kyphosis and normal

lumbar lordosis (Tr. 370). Plaintiff reported that his pain was gradually improving, and

he was doing quite well, but he still reported pain in his left thigh. Dr. Hopkins

recommended that Plaintiff continue wearing his back brace to assist in preventing

kyphosis (Tr. 370, 374).

On December 17, 2019, Plaintiff denied any new symptoms and reported that his

back felt good without pain (Tr. 367). Plaintiff denied any paresthesia or weakness (Tr.

367). On examination, Dr. Hopkins observed that Plaintiff’s back was nontender, and

had multiple well-healed abrasions (Tr. 367). Dr. Hopkins observed some prominence of

the spinous process of T12, and Plaintiff’s imagining demonstrated evidence of additional

settling of the T12-L1 level, with a slight degree of increase in kyphosis (Tr. 367). Dr.

Hopkins indicated that the T12-L1 segment was essentially stable and recommended no

further treatment (Tr. 367). Dr. Hopkins discontinued Plaintiff’s back brace and advised

Plaintiff to gradually increase his level of activity (Tr. 367). Dr. Hopkins stated that

Plaintiff could return to driving and normal function and advised Plaintiff to return in 3

months for another x-ray, or if he developed any recurrence of back pain s (Tr. 367).

On June 2, 2020, Plaintiff reported that he was doing well, but had some pain in

the mornings (Tr. 365). Plaintiff denied any weakness in his lower extremities but

complained of pain in his right buttock and posterior thigh (Tr. 365). Plaintiff’s prior

imaging demonstrated no evidence of nerve root compression, and his follow-up x-rays

demonstrated no change in the slight kyphosis at the level of the fracture. Dr. Hopkins

stated that the T11 had settled nicely onto the T12 and the complex appeared “very

stable” (Tr. 365). Dr. Hopkins’s exam revealed palpable mid deformity at his fracture site

and stated that Plaintiff was very thin with his T12 spinous process prominent, but that

it was nontender (Tr. 365). Dr. Hopkins observed good bilateral strength and normal gait

and posture, and his assessment revealed moderate chronic pain (Tr. 365). Dr. Hopkins

recommended that Plaintiff continued to advance his level of activity and opined that

over time his tolerance for activity would increase and he “should be able to work in any

capacity” (Tr. 365). Dr. Hopkins removed all of Plaintiff’s restrictions and suggested

waiting six months to determine if he would improve (Tr. 365). He also recommended

against narcotic pain medication (Tr. 365).

At some point in time, Dr. Hopkins submitted a Treating Source Statement which

is undated (Tr. 363). In this statement, Dr. Hopkins reported that Plaintiff should not lift

over 25 pounds, and should only bend, twist, and squat in small amounts (Tr. 363). He

also stated that Plaintiff should site and stand as tolerated (Tr. 363).

C. Dr. Davis

From May 2019 to March 2021, Plaintiff was treated by his primary care physician,

Dr. Davis (Tr. 334-347, 382-390, 404-498). On May 14, 2019, Plaintiff presented to Dr.

Davis for a follow up appointment following his accident (Tr. 340). Plaintiff reported that

he was walking with a walker, had begun physical therapy, and stated that his pain was

“fairly well controlled” (Tr. 340). Dr. Davis examined Plaintiff and indicated that

Plaintiff’s surgical wounds were healing and reported no abnormal findings (Tr. 340).

On June 21, 2019, Plaintiff reported insomnia and constipation (Tr. 338-339). Dr.

Davis examined Plaintiff and his notes indicate that Plaintiff continued to wear a back

brace and has seen good improvement with his mobility and strength with physical

therapy although he has limited flexion extension in his thoracic and lumbar spine (Tr.

338-339). Dr. Davis’s findings were normal, and he prescribed medication for Plaintiff’s

insomnia and constipation (Tr. 339). On August 3, 2019, Plaintiff reported that he was

doing better with his sleep and no longer having recurrent thoughts of the accident (Tr.

337). Plaintiff was also released from physical therapy (Tr. 337). On August 23, 2019,

Plaintiff reported a lot of pain in his left buttock from the accident, in addition to

increased worrying and anxiety (Tr. 336). Plaintiff described his anxiety as “relatively

mild” and Dr. Davis indicated that he would continue to monitor symptoms (Tr. 337).

On November 19, 2019, Plaintiff reported pain following his rod removal surgery

(Tr. 389). Dr. Davis reported relatively normal exam findings but noted that Plaintiff was

wearing a rigid back brace (Tr. 389). Dr. Davis prescribed a brief narcotic pain medication

for his back pain and recommended a follow-up if his pain persists (Tr. 390). On January

13, 2020, Plaintiff reported significant anxiety and difficulty sleeping, and intermittent

pain from his accident (Tr. 387). Dr. Davis reported normal exam findings and diagnosed

Plaintiff with a generalized anxiety disorder (Tr. 388). Dr. Davis started Plaintiff on

medication for anxiety and recommended ibuprofen as needed for his back pain (Tr. 388).

On February 3, 2020, Plaintiff reported that his anxiety problems were “markedly

improved”, and he was sleeping better, however, he continued to have chronic mid back

pain (Tr. 386). Dr. Davis reported mostly normal findings on Plaintiff’s physical

examination but indicated mid back tenderness (Tr. 386). Dr. Davis continued Plaintiff’s

anxiety medications and recommended that Plaintiff follow-up with his surgeon about

his back pain (Tr. 387).

Dr. Davis examined Plaintiff again on May 28, 2020, June 26, 2020, July 24, 2020,

September 4, 2020, November 24, 2020, March 3, 2021, and March 10, 2021. At these

appointments, Plaintiff reported continued chronic back pain problems and continued

dysthymia and anxiety (Tr. 383-385). Dr. Davis observed mostly normal findings on his

exam but indicated diffuse tenderness in Plaintiff’s back on May 28, 2020, June 26, 2020,

and September 4, 2020 (Tr. 383, 385, 409, 424, 436). He also observed limited range of

motion in Plaintiff’s back on most exams after June 26, 2020 (Tr. 383, 385, 409, 424, 464,

488). Dr. Davis continued or increased Plaintiff’s pain medications and dysthymia and

anxiety medications (Tr. 383-384, 409, 423, 436, 464, 489). On November 24, 2020, Dr.

Davis suggested a trial of medications for Plaintiff’s insomnia and instructed him to

follow-up with his back specialist for his chronic pain (Tr. 437).

On March 24, 2021, Dr. Davis completed a Treating Source Statement (Tr. 404-407).

In this statement, Dr. Davis reported that Plaintiff had approximately 28 bad days out of

28 days because of his back pain (Tr. 405). Dr. Davis opined that Plaintiff has postural

limitations and could not work due to his continued back pain (Tr. 406). He stated that

Plaintiff would be off task most of the day, and that he did not believe Plaintiff would

benefit from laying down or reclining during working hours (Tr. 405-406). Dr. Davis did

not evaluate Plaintiff for potential restrictions on lifting or carrying items (Tr. 406). Dr.

Davis reported that Plaintiff has tried working but was unable to tolerate a full work

schedule (Tr. 406).

Function Reports

In October 2019, Plaintiff and his stepmom, Connie Pruiett, completed Function

Reports for Plaintiff (Tr. 250, Tr. 239). Plaintiff reported that his injuries affected his ability

to lift, squat, bend, stand, reach, walk, sit, kneel, complete tasks, concentrate, and

remember (Tr. 255). Plaintiff’s stepmom reported similarly, indicating that Plaintiff did

not have full range of motion, could not stand or sit for long periods of time, or bend over

or twist repeatedly (Tr. 239).

Plaintiff estimated that he could lift 25 pounds and walk one-half mile before

needing a 10-minute rest (Tr. 255). He stated that he gets sore easily which prevents him

from finishing some tasks (Tr. 255). He also forgets instructions and dates, but he can

pay attention for 5-10 minutes, finish what he starts, and can follow written and spoken

instructions (Tr. 255). Plaintiff’s stepmom also reported that Plaintiff has issues with short

term memory, making it hard to stay on task (Tr. 239-245). She also stated that Plaintiff

suffers from stress and anxiety and has trouble sleeping due to pain and bad thoughts

(Tr. 239-245). Plaintiff was not taking any medications for his injuries or conditions when

he completed the report in October 2019 (Tr. 257). However, by January 6, 2021, Plaintiff

reported that he was taking medication for depression, anxiety, sleep, and pain in his

back, nerves, joints, and sciatic (Tr. 289, Tr. 309). Plaintiff stated that these medications

caused him to be drowsy and dizzy (Tr. 289).

In March 2021, Plaintiff’s mother, Rischa Proffitt, and Plaintiff’s wife, Rachel

Pruiett, completed Third-Party Function Reports (Tr. 304, 313). Plaintiff’s wife reported

that Plaintiff’s sciatica pain prohibits Plaintiff from sitting or standing longer than 15-20

minutes at a time, and he cannot bend, twist, or lift anything over 20-25 pounds without

extreme and prolonged pain (Tr. 313-314). She also stated that Plaintiff suffers from a

loss of smell and touch, and has diminished cognitive function, short- and long-term

memory loss, understanding, thought processing, decision making, reasoning, ability to

process emotions, processing emotions, and planning (Tr. 313).

Plaintiff’s mother reported similarly and indicated that Plaintiff could not work

more than 2 days in a row before being bedridden by the pain in his back, neck, head,

nerves, and left side (Tr. 304). She also reported that Plaintiff vomits and has mental

anguish from the pain, along with shakes and difficulty walking (Tr. 304). Ms. Proffitt

estimated that Plaintiff can stand for approximately five-minutes but is unable to walk a

block or go up and down stairs (Tr. 304). He can also complete short trips to the store for

an item or two and prepare simple meals. However, he has difficulties performing

housework such as sweeping, laundry, washing windows, climbing ladders, or doing

anything that requires repetitive motions longer than five minutes on his feet. He also

has difficulties bending and dressing himself (Tr. 304). Plaintiff can sit in a car for

approximately 90 minutes before needing to stop and lay down because of the pain (Tr.

305). Plaintiff also struggles with short term memory, PTSD, depression, stress, and can

be come agitated and worried (Tr. 305).

State Agency Reports

On September 5, 2020, Plaintiff presented to Anna Stapleton, PSYD for a

psychology consult (Tr. 391-395). Plaintiff reported his history with depression and

anxiety (Tr. 393). He reported that he had difficulty sleeping, erratic appetite, increased

irritability and agitation, tensions due to chronic pain, and feelings of discouragement,

worry, guilty, worthlessness, hopelessness, poor energy and motivation, social

withdrawal, and isolation from others (Tr. 393). Plaintiff denied recent suicidal thoughts

(Tr. 393). He reported anger issues and nightmares (Tr. 393).

Dr. Stapleton observed that Plaintiff’s appearance was clean and well-kempt, and

he was dressed appropriately. Plaintiff had no observable difficulties with speech, and

he presented no signs of physical or emotional distress (Tr. 392). Plaintiff’s thought

process was logical and coherent, and thought content was appropriate, but his mood

was saddened, and affect was congruent (Tr. 392). Dr. Stapleton described Plaintiff as

pleasant, cooperative, and willing to participate in the evaluation and respond to

questions and inquiries (Tr. 392). Plaintiff denied thoughts of harm (Tr. 392). Plaintiff

was also alert and oriented and had appropriate ability to sustain adequate concentration

and focus throughout the evaluation, which lasted 30 minutes (Tr. 391-392). Plaintiff’s

short-term and long-term memory was intact, and correctly identified Dr. Stapleton’s

mental status inquiries (Tr. 392). Dr. Stapleton opined that Plaintiff was equipped to

handle his own funds (Tr. 393). Dr. Stapleton also diagnosed Plaintiff with an unspecified

bipolar and related disorder (Tr. 394).

On September 26, 2020, Plaintiff presented to Peter Sorokin, M.D. (Tr. 397-403).

Plaintiff reported continued back pain and his left leg due to sciatica, especially when he

bends, twists, or lifts (Tr. 397). He takes pain medications at night and lies down to relieve

pain (Tr. 397-398). Plaintiff reported that he can walk one-half a mile, stand for one hour,

sit for two and one-half hours, and lift, pull and push up to thirty pounds (Tr. 398).

Plaintiff cannot cook because coordination in his hands is sometimes off, but he can feed

himself, clean using a broom only, bathe and dress himself, use buttons or zippers, open

a door and jar, pick up a pen and coin, drive, and shop (Tr. 398).

Dr. Sorokin reported normal exam findings (Tr. 402). Dr. Sorokin observed that

Plaintiff could get on and off the exam table with no difficulty, could walk greater than

50 feet without support, had non-antalgic gait without the use of assistive devices, was

able to perform toe/heel walk, had 5/5 grip strength in both hands, normal ability to

grasp and manipulate objects, could fully extend his hands, and make fists (Tr. 399).

Plaintiff had full range of motion in his shoulders, elbows, wrists, hips, knees, ankles, and

cervical spine, but a lower range of mobility in his lumbar spine (Tr. 399, 402). Plaintiff’s

straight leg raise test supine and seated were negative bilaterally (Tr. 399).

In November 2019, state agency medical consultant, Kathleen Treanor, M.D.

completed a Disability Determination Explanation (Tr. 89-94), indicating that Plaintiff

had no physical restrictions and did not meet the listing qualifications for 1.02

Dysfunction – Major Joints (Tr. 92-93). In October 2020, consultants Vidya Madala, M.D.

and Joseph Mehr, PHD, examined Plaintiff’s claim on reconsideration (Tr. 105-123). Dr.

Madala evaluated impairments of dysfunction – major joints, spine disorders depressive,

bipolar and related disorders, anxiety, and obsessive-compulsive (Tr. 113).

Dr. Merh assessed Plaintiff’s psychiatric review and found that Plaintiff had no

limitations in his ability to understand, remember, or apply information, but mild

limitations in his ability to interact with others, concentrate, persist, or maintain pace, and

adapt or manage oneself (Tr. 114). Dr. Madala concluded that Plaintiff had both

exertional and postural limitations because of the decreased range of motion in his lateral

spine (Tr. 117-118). Dr. Madala found that Plaintiff could occasionally lift or carry 50

pounds and frequently lift or carry 25 pounds, could stand, walk, or sit for a total of 6

hours in an 8-hour workday, and was unlimited in his ability to push or pull, including

operating hand or foot controls (Tr. 117). Dr. Madala further found that Plaintiff could

only frequently climb ladders, ropes, scaffolds, stoop, and crouch, but was otherwise

unlimited in his ability to climb ramps/stairs, balance, kneel, and crawl (Tr. 117-118).

Evidentiary Hearing

On April 14, 2021, Plaintiff testified at an evidentiary hearing (Tr. 66). Plaintiff was

represented by an attorney at the hearing (Tr. 66). Plaintiff testified that he could sit and

stand for 15-20 minutes on a good day before hurting and could not lift anything over 15-

20 pounds (Tr. 73-74). He speculated that he might be able to grocery shop, but only if

he was grabbing one or two items (Tr. 74). Plaintiff cannot do laundry or dishes because

of the repetitive motion and strain on his back (Tr. 74). Plaintiff also testified that he gets

headaches almost daily, and once or twice a week the headaches are so bad he throws up

from the pain (Tr. 75-76). Plaintiff takes pain medications for his headaches, but reports

that they do not help (Tr. 77). Plaintiff is not undergoing psychological treatment related

to the accident, but he began taking medications for depression and anxiety in June 2019

(Tr. 76). Plaintiff reported that these medications help (Tr. 77).

Carrie Anderson, a Vocational Expert (“VE”) also testified at the hearing (Tr. 66).

She considered two hypothetical individuals. The first, with Plaintiff’s age, education,

and work experience, and the following limitations:

sit six hours during an eight hour work day, stand and walk six hours

during an eight hour work day, lift, carry, push and pull 20 pounds

occasionally, 10 pounds frequently, can occasionally climb ramps and

stairs, stoop, kneel, crouch, and crawl, no climbing ladders, ropes, or

scaffolds, frequent reaching bilaterally, and can perform simple, routine

tasks and sustain the attention, concentration, persistence, and pace needed

to complete those tasks.

(Tr. 83). The VE testified that this hypothetical person would not be able to perform

Plaintiff’s past work as a construction laborer or car detailer (Tr. 82-83). However, the

hypothetical person could perform light, SVP positions such as ticket seller, parking lot

attendant, and mail room clerk which exist in sufficient number in the national economy

(Tr. 84).

Next, the VE considered the same hypothetical person but with further limitations

requiring the individual to sit “up to 30 minutes at one time and four hours during an

eight hour work day, [ ] stand and walk up to 30 minutes at one time and four hours

during an eight hour work day, lift, carry, push, and pull 10 pounds occasionally and 5

pounds frequently” (Tr. 84). The VE testified that this hypothetical person would be able

to perform sedentary, SVP 2, employment with positions such as sorter, laminator, and

order clerk, which exist in sufficient number in the national economy (Tr. 84-85). The ALJ

ultimately crafted Plaintiff’s RFC with the limitations of the second hypothetical person,

with the additional limitations of only sitting, standing, and walking up to 15 minutes at

one time and four hours during an eight-hour workday (Tr. 55).

Analysis

Judicial review of the ALJ's decision is limited to determining whether the ALJ's

findings are supported by substantial evidence or based upon a legal error. Steele v.

Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). “Substantial evidence is such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Burmester, 920

F.3d at 510 (citing Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010). “Where substantial

evidence supports the ALJ’s disability determination, [the Court] must affirm the

decision even if ‘reasonable minds could differ concerning whether [the claimant] is

disabled.’” Id. (citing Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008)). In reviewing an

ALJ's decision, the Court “will not reweigh the evidence, resolve debatable evidentiary

conflicts, determine credibility, or substitute [its] judgment for the ALJ's

determination.” Reynolds v. Kijakazi, 25 F.4th 470, 473 (7th Cir. 2022) (internal citation

omitted). Nevertheless, where the ALJ's decision “lacks evidentiary support or is so

poorly articulated as to prevent meaningful review, the case must be remanded.” Steele,

290 F.3d at 940.

Here, Plaintiff is proceeding pro se, so his pleadings are entitled to liberal

construction. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007). Mindful of this

construction, the Court construes Plaintiff’s submissions (Doc. 2; Doc. 29; Doc. 30) as

raising two distinct legal arguments. First, Plaintiff argues that the medical opinions of

Dr. PineMattas and Dr. Schneider support a finding of disability (Doc. 29). However,

Plaintiff did not begin treating with Dr. PineMattas and Dr. Schneider until March 2021,

and most of the records he submitted to the Court from these sources are dated after the

ALJ’s decision (Doc. 29). Thus, to the extent Plaintiff argues that this new evidence was

not considered, the Court construes this argument as raising a question of legal error. See

Rita Mary K. v. Kijakazi, No. 21 C 4598, 2022 WL 17583780, at *4 (N.D. Ill. Dec. 12, 2022)

(citing Stepp v. Colvin, 795 F.3d 711, 723 (7th Cir. 2015) and Perkins v. Chater, 107 F.3d 1290,

1294 (7th Cir. 1997)) (the Court retains jurisdiction to review legal conclusions concerning

time-relevant evidence). Second, Plaintiff also argues generally that the ALJ improperly

discredited the opinions of Dr. Davis and Plaintiff’s mother (Doc. 29; Doc. 30-1). These

opinions were presented to the ALJ. Thus, this argument concerns the ALJ’s factual

analysis, and the Court must determine whether the ALJ’s findings were supported by

substantial evidence.

A. Newly Presented Evidence

Plaintiff represents that he began treating with Dr. PineMattas in March 2021, and

Dr. PineMattas later referred Plaintiff to Adam Schneider, CRNA for pain management

(Doc. 29). Plaintiff argues that after he began treating with Dr. PineMattas and Dr.

Schneider, his MRI findings became concerning, requiring Dr. Schneider to perform nine

minor surgeries (Doc. 29). These records also reveal that Plaintiff was hospitalized for

suicidal ideations, PTSD, bipolar with depression, and anxiety in August 2021 (Tr. 23).

Following the hospitalization, Plaintiff started on new medications (Tr. 24), and Dr.

PineMattas ordered an additional MRI scan, therapy, and referred Plaintiff to pain

management for injections for his chronic back pain (Tr. 24-25). Plaintiff argues that Dr.

PineMattas’s assessments and findings of marked limitations support a finding of

disability, and specifically indicate that Plaintiff meets Listings 11.08, 11.18 12.04, 12.06,

and 12.15 (Doc. 29).

With his briefing, Plaintiff submitted over fifty pages of additional medical records

(Doc. 29, p. 6-61), including:

1. Radiology reports from the date of Plaintiff’s car accident, April 18, 2019

(Doc. 29, pp. 6-9);

2. Dr. Hopkins’s surgical notes from Plaintiff’s surgery to repair his L1

burst fracture on April 18, 2019 (Doc. 29, pp. 10-11);

3. Dr. Hopkins’s treatment notes from October 22, 2019 (Doc. 29, pp. 12-

13);

4. Dr. Hopkins’s discharge summary following Plaintiff’s surgery to

remove his instrumentation on October 30, 2019 (Doc. 29, p. 14) and

related x-ray results following the surgery and dated November 14, 2019

(Doc. 29, pp. 15-16);

5. Dr. Davis’s Treating Source Statement, dated May 24, 2021 (Doc. 29, pp.

17-22);

6. Radiology reports and office notes dated March 26-27, 2021, related to

Plaintiff’s complaints of bilateral testicular pain (Doc. 29, pp. 23-25);

7. Clinic Office Records and treatment notes from Dr. PineMattas dated

June 8, 2021 (Doc. 29, pp. 26-29), September 30, 2021 (Doc. 29, pp. 43-44),

and June 22, 2022 (Doc. 29, pp. 45-47);

8. Radiology Reports from an x-ray of Plaintiff’s spine, dated June 8, 2021

(Doc. 29, pp. 30-31);

9. Imaging reports from Plaintiff’s spine, dated June 23, 2021 (Doc. 29, pp.

32-34);

10. Emergency medicine records and related treatment notes dated August

13, 2021 (Doc. 29, pp. 48-53);

11. Hospitalization records, related treatment notes, and communications

dated August 25-26, 2021 (Doc. 29, pp. 35-38);

12. Imaging reports of Plaintiff’s brain MRI dated September 7, 2021, and

related office notes dated September 10, 2021 (Doc. 29, pp. 40-42); and

13. Treatment notes from Dr. Schneider dated April 13, 2022 (Doc. 29, pp.

55-59).

Some of these records, including the records from Dr. Hopkins and Dr. Davis’s Treating

Source Statement are included in the administrative record or referred to in the

administrative record (Doc. 18)3. Plaintiff also submitted some of these records to the

Appeals Council for consideration, including:

1. Lab reports from March 22, 2021 (Tr. 16-18);

2. Treatment notes from Dr. PineMattas dated April 3-5, 2021, related to

3 The Court could not find Dr. Hopkins’s surgical notes from Plaintiff’s surgeries on April 18, 2019, or

October 30, 2019, in the administrative record, or the imagining reports from those dates. However, the

information from those documents were referred to in the administrative record throughout Dr. Hopkins’s

treatment notes.

Plaintiff’s complains of testicular pain and fertility testing (Tr. 19);

3. Radiology reports from an x-ray of Plaintiff’s spine and related

treatment records dated June 8, 2021 (Tr. 9-15, 20-22); and

4. Plaintiff’s treatment records from August 25-30, 2021 concerning his

hospitalization for mental health evaluation (Tr. 23-30).

(Tr. 8-30). The Appeals Council reviewed the records from March 22, 2021 (Tr. 16-18) and

April 3-5, 2021 (Tr. 19) but did not exhibit the evidence because the evidence did “not

show a reasonable probability that it would change the outcome of the decision.” (Tr. 2).

Further, the Appeals Council found that the records dated from June 8-August 30, 2021

(Tr. 9-15, 20-30) were not time-relevant, stating: The Administrative Law Judge decided

your case through May 27, 2021. This additional evidence does not relate to the period at

issue. Therefore, it does not affect the decision about whether you were disabled

beginning on or before May 27, 2021.” (Tr. 2).

The Appeals Council did not err in its decision to not exhibit the additional

evidence submitted. 20 C.F.R. § 404.970(b) states that additional evidence submitted to

the Appeals Council will be evaluated “only if it is ‘new and material’ and ‘relates to the

period on or before the date of the [ALJ] hearing decision.” Stepp, 795 F.3d at 721 (citing

20 C.F.R. § 404.970(b)). If the newly submitted evidence satisfies these conditions, the

Appeals Council incorporates the evidence into the administrative record and evaluates

that evidence with the record. Id. However, if the additional evidence “does not relate

to the period on or before the date of the [ALJ] hearing decision … the Appeals Council

will send … a notice that explain[s] why it did not accept the additional evidence and

advises [the claimant of their] right to file a new application.” 20 C.F.R. § 404.970(c).

In reviewing the Appeals Council’s decision concerning newly submitted

evidence, review is “dependent on the grounds which the Council declined to grant

plenary review.” Stepp, 795 F.3d at 721. If the Council determined that the newly

submitted evidence was “non-qualifying under the regulation”, i.e., not “new and

material” or not “time-relevant”, the Court retains jurisdiction to review the conclusion

for legal error. Stepp, 795 F.3d at 721 (citing Farrell v. Astrue, 692 F.3d 767, 771 (7th Cir.

2012)); see also Rita Mary K., 2022 WL 17583780, at *4 (whether newly submitted evidence

is time-relevant “remains a non-discretionary determination” subject to the Court’s

review). However, if the Council “deemed the evidence new, material, and time-relevant

but denied plenary review of the ALJ’s decision based on its conclusion that record—as

supplemented—does not demonstrate that the ALJ’s decision was ‘contrary to the weight

of the evidence’—the Council’s decision not to engage in plenary review is ‘discretionary

and unreviewable.” Stepp, 795 F.3d at 721 (citing Perkins, 107 F.3d at 1294).

Here, the Council found that the records prior to the ALJ’s decision did “not show

a reasonable probability that it would change the outcome of the decision.” (Tr. 2). As

the Council reviewed this evidence, and weighed it with the rest of the record, this

decision is not subject to the Court’s review. Stepp, 795 F.3d at 721. However, the Council

also declined to exhibit the remaining documents dated from June 8, 2021, to August 30,

2021, because they were time-barred (Tr. 2). This finding is subject to review, but the

Council did not err in its finding because the records all relate to evidence dated after the

ALJ’s decision on May 27, 2021 (Tr. 61) (determining that Plaintiff was not disabled from

April 17, 2019, through the date of his decision on May 27, 2021). See Stepp, 795 F.3d at

723 (newly submitted evidence is not time-relevant if it does not relate to the period on

or before the date of the ALJ hearing decision).

Moreover, the remaining records submitted directly to the Court, which were not

contained in the administrative record or submitted to the ALJ and Appeals Council, are

not subject to review. See Atkins v. Saul, 814 F. App'x 150, 155 (7th Cir. 2020) (“Records

that were not available to the ALJ (or even the Appeal Board) cannot be used to challenge

the ALJ’s decision.”) (citing 42 U.S.C. § 405(g); Stepp, 795 F.3d at 721). Even if they were,

they too are time-barred and do not relate to Plaintiff’s current claim for disability as all

the records were made after the ALJ’s decision.

B. Substantial Evidence

Turning next to the ALJ’s decision, the Court finds that the decision was not

erroneous and was supported by substantial evidence. In reviewing the ALJ’s opinion,

the ALJ ultimately determined that Plaintiff was capable of a reduced range of light work,

and crafted Plaintiff’s RCF after consideration of medical opinions, prior administrative

medical findings in the record, objective test results, treatment records reflecting the

functional limitations associated with Plaintiff’s impairments, and non-medical function

reports (Tr. 55-59). The ALJ fairly summarized the relevant medical evidence. He further

supported his determination with reference to the evidence and considered the evidence

consistent with the applications regulations. See 20 C.F.R. § 404.1520c(c)(2) (governing

consideration of medical source statements); SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25,

2017) (governing consideration of nonmedical sources).

The ALJ’s assessment of Plaintiff’s RFC was supported by the medical opinions of

Plaintiff’s neurosurgeon, Dr. Hopkins, who removed Plaintiff’s work restrictions in June

2020, and further opined that Plaintiff had exertional limitations related to lifting over 25

pounds, bending, twisting, and squatting (Tr. 58-59). The ALJ found Dr. Hopkins’

opinion persuasive, and explained his finding as required by the relevant regulations.

Specifically, the ALJ explained that Dr. Hopkins’ opinion was supported by Dr. Hopkins’

treatment records and prior examination notes and was consistent with the Plaintiff’s

examination findings (Tr. 58). See 20 C.F.R. § 404.1520c (the ALJ is required to explain

how he considered the factors of supportability and consistency of a physician’s opinion,

but is not required to explain how he considered the remaining factors).

The ALJ also found that Plaintiff’s RFC was supported by the opinion of consultant

Dr. Sorokin, who opined that Plaintiff had decreased range of motion in his lumbar spine

(Tr. 57-58). “[I]t is appropriate for the ALJ to rely upon the assessment of a state agency

consultant.” Laymon v. Colvin, No. 14-CV-39-CJP, 2014 WL 5420270, at *6 (S.D. Ill. Oct. 24,

2014) (citing Schmidt v. Barnhart, 395 F.3d 737, 745 (7th Cir. 2005); Cass v. Shalala, 8 F.3d

552, 555 (7th Cir. 1993)); see also SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996) (“State

agency medical and psychological consultants are highly qualified physicians and

psychologists who are experts in the evaluation of the medical issues in disability claims

under the Act.”). The ALJ accounted for these findings in Plaintiff’s RFC by limiting the

claimant to a reduced range of light exertional work with postural and manipulative

limitations (Tr. 58).

Further, the ALJ properly rejected the opinion of Dr. Davis finding that Plaintiff

would not be able to tolerate a full work schedule and would be off task most of the day,

by articulating the reasons for finding the opinion unpersuasive (Tr. 59). Specifically, the

ALJ found that Dr. Davis’s opinion was not consistent with his own treatment notes or

Plaintiff’s examination findings. See, e.g., Pavlicek v. Saul, 994 F.3d 777, 783 (7th Cir. 2021)

(Substantial evidence supported the discrediting of a medical opinion when there was a

“stark contrast” between the provider’s treatment notes and his opinion).

Finally, the ALJ properly evaluated the third-party function reports submitted by

Plaintiff’s mother, stepmother, and wife (Tr. 59). In doing so, the ALJ summarized the

nonmedical opinions and considered them when crafting Plaintiff’s RFC, while also

correctly noting that he was not required to evaluate this evidence using the same

evaluation factors he used for the medical opinions. See 20 C.F.R. § 404.1520c(d) (the ALJ

is not “required to articulate how [he] considered evidence from nonmedical sources

using the requirements of” Section 404.1520c(a)-(c)); Mueller v. Comm'r of Soc. Sec., No. 20-

CV-1244-RJD, 2022 WL 704336, at *3 (S.D. Ill. Mar. 9, 2022) (citing Moore v. Colvin, 743 F.3d

1118, 1123 (7th Cir. 2014)) (While the ALJ is required “grapple with evidence that may

run counter to [his] conclusion”, he is not required to evaluate or discuss every piece of

evidence in the record).

In sum, after careful review of the record and the ALJ’s decision, the Court finds

no legal errors. Further, the medical evidence and the state agency consultants’ opinions

support the ALJ’s RFC. Even if reasonable minds could differ as to whether Plaintiff was

disabled at the relevant time, the ALJ’s decision must be affirmed if it is supported by

substantial evidence, and the Court cannot substitute its judgment for that of the ALJ in

reviewing for substantial evidence. Burmester, 920 F.3d at 510; Shideler v. Astrue, 688 F.3d

306, 310 (7th Cir. 2012). Because the ALJ followed the steps required by the regulations

and supported his findings by pointing to substantial evidence in the record, the Court

will not overturn the ALJ’s decision on this basis.

Conclusion

After careful review of the record as a whole, the Court is convinced that the AL]

committed no errors of law, and 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.

SO ORDERED.

Dated: March 21, 2023 Dr ZL i J

DAVIDW.DUGAN

United States District Judge

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