Talmo v. Berryhill
Filing
36
MEMORANDUM Opinion and Order: Signed by the Honorable M. David Weisman on 8/23/2018. Mailed notice (ao,)
Case: 1:17-cv-01755 Document #: 36 Filed: 08/23/18 Page 1 of 6 PageID #:1532
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTHONY JOSEPH TALMO,
Plaintiff,
v.
NANCY A. BERRYHILL, Deputy
Commissioner for Operations,
performing the duties and functions
not reserved to the Commissioner of
Social Security
Defendant.
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No. 17 C 1755
Magistrate Judge M. David Weisman
MEMORANDUM OPINION AND ORDER
Anthony Joseph Talmo brings this action pursuant to 42 U.S.C. § 405(g) for judicial review
of the Social Security Administration’s (“SSA’s”) decision denying his application for benefits.
For the reasons set forth below, the Court affirms the SSA’s decision.
Background
Plaintiff filed an application for disability benefits on March 9, 2007, alleging a disability
onset date of January 20, 2005. (R. 340, 387.) Plaintiff’s application was denied initially on July
3, 2007 and on reconsideration on September 27, 2007. (R. 337-40.) An Administrative Law
Judge (“ALJ”) held a hearing on plaintiff’s application on April 13, 2009. (See R. 310-36.) On
May 14, 2009, the ALJ granted plaintiff’s application in part. (See R. 345-53.) The Appeals
Council denied plaintiff’s request for review (R. 1-3), and plaintiff appealed to this Court.
On May 30, 2012, Judge Dow remanded the case to the SSA for further proceedings. (R.
912-30.) On July 29, 2013, and October 29, 2013, an ALJ conducted additional hearings on
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plaintiff’s claim. (R. 830-908.) On March 28, 2014, the ALJ issued a decision finding that plaintiff
was disabled from January 20, 2005 through May 26, 2006 and became disabled again on June 15,
2012 but was not disabled from May 27, 2006 through June 14, 2012. (R. 810, 818, 820-21.) The
Appeals Council declined to review the decision (R. 783-86), leaving the ALJ’s March 28, 2014
as the final decision of the SSA, reviewable by this Court pursuant to 42 U.S.C. § 405(g). See
Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).
Discussion
The Court reviews the ALJ’s decision deferentially, affirming if it is supported by
“substantial evidence in the record,” i.e., “‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” White v. Sullivan, 965 F.2d 133, 136 (7th Cir. 1992)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although this standard is generous,
it is not entirely uncritical,” and the case must be remanded if the “decision lacks evidentiary
support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002) (citation omitted).
Under the Social Security Act, disability is defined as the “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). The regulations
prescribe a five-part sequential test for determining whether a claimant is disabled. See 20 C.F.R.
§ 404.1520(a). The SSA must consider whether: (1) the claimant has performed any substantial
gainful activity during the period for which she claims disability; (2) the claimant has a severe
impairment or combination of impairments; (3) the claimant’s impairment meets or equals any
listed impairment; (4) the claimant retains the residual functional capacity to perform her past
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relevant work; and (5) the claimant is able to perform any other work existing in significant
numbers in the national economy. Id.; Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001). The
claimant bears the burden of proof at steps one through four. Zurawski, 245 F.3d at 886. If that
burden is met, at step five, the burden shifts to the SSA to establish that the claimant is capable of
performing work existing in significant numbers in the national economy.
20 C.F.R.
§ 404.1560(c)(2).
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
since the alleged onset date. (R. 808.) At step two, the ALJ determined that plaintiff has the severe
impairments of “degenerative disc disease of the lumbar spine, with right L4 and left S1
radiculopathy; obesity; and right eye blindness.” (R. 808, 812.) At step three, the ALJ found that
plaintiff’s impairments medically equaled the severity of a listed impairment from January 20,
2005 through May 26, 2006 and after June 14, 2012, and thus he was disabled for those periods,
but not from May 27, 2006 through June 14, 2012. (R. 810, 812, 818.) At step four, the ALJ
found that from May 27, 2006 through June 14, 2012, plaintiff was unable to perform his past
relevant work but had the residual functional capacity (“RFC”) to perform sedentary work with
certain exceptions. (R. 813, 816.) At step five, the ALJ determined that from May 27, 2006
through June 14, 2012 there were a significant number of jobs in the national economy that plaintiff
could have performed, and thus he was not disabled for that period of time. (R. 817, 820)
Plaintiff argues that the ALJ erroneously found that plaintiff had the RFC to perform
sedentary work during the period from May 27, 2006 through June 14, 2012. The ALJ based this
conclusion primarily on the testimony of medical expert (“ME”) Dr. Jilhewar, who testified that
plaintiff’s condition improved sufficiently during that time period to enable him to perform
sedentary work with various restrictions. (See R. 815-16, 834-42, 846-52.) Plaintiff contends that
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the ME’s, and thus the ALJ’s, conclusion ignores the report of a June 30, 2009 MRI (R. 1239-40),
a June 13, 2012 treatment note (R. 1124), and the fact that the findings of consultative exams on
May 2007 and December 2012 were essentially the same. 1
The 2009 MRI report states that at L3-L4 there is “a generalized disc bulge with a shallow
central protrusion that indents the thecal sac, 2 ligamentum flavum 3 thickening and facet
hypertrophic degenerative changes,” which result in “mild stenosis,” i.e., a narrowing of spaces
within the spine, https://www.mayoclinic.org/diseases-conditions/spinal-stenosis/symptomscauses/syc-20352961 (last visited Aug. 23, 2018). (R. 1239-40.) At L4-L5, there is “loss of disc
height and disc desiccation” and a “generalized disc bulge” but “no significant canal or foraminal
stenosis,”
i.e.,
“narrowing
of
the
cervical
disc
space,”
https://www.spine-
health.com/glossary/foraminal-stenosis (last visited Aug. 23, 2018), and the left L5 nerve root
“[was] unremarkable.” (R. 1240.) The doctor’s overall impression was:
1.
Evidence for previous laminectomies (“surger[ies] that create[] space by
removing the . . . back part of the vertebra that covers [the] spinal canal,”
https://www.mayoclinic.org/tests-procedures/laminectomy/basics/definition/prc20009521 (last visited Aug. 23, 2018)) at L4-L5 and L5-S1 with epidural fibrosis,
(“formation of scar tissue near the nerve root,” https://www.spinehealth.com/treatment/back-surgery/scar-tissue-and-pain-after-back-surgery (last
visited Aug. 23, 2018)), but no greater than typically seen. The fibrosis on the right
is encircling the descending right L5 nerve root but does not appear to displace or
tether to the root.
2.
Left subarticular stenosis by an asymmetric disc bulge and encroachment
upon but no clear compression of the descending left S1 nerve root.
3.
No MRI evidence of arachnoiditis (“a pain disorder caused by the
inflammation of . . . one of the membranes that surround and protect the nerves of
the spinal cord,” https://my.clevelandclinic.org/health/articles/arachnoiditis (last
visited Aug. 23, 2018)).
1
Plaintiff also argues that a December 19, 2012 treatment note supports a finding of disability for the May 27, 2006
to June 14, 2012 period. (Pl.’s Mem., ECF 25 at 8.) That note, however, post-dates the relevant period and does
not suggest that the observations in it apply retroactively. (See R. 1117.)
2
The thecal sac is the “enclosing case” of the spinal cord.” thecal, Dorland’s Illustrated Medical Dictionary (32d
ed).
3
Ligamentum flavum is a spinal ligament. ligamenta flava, Dorland’s Illustrated Medical Dictionary (32d ed).
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4.
Mild spinal stenosis at L3-L4 as detailed.
(Id.) These findings do not show that a nerve root is compromised, and thus do not meet the listing
for disorders of the spine. See Listing 1.04 (“Disorders of the spine . . . resulting in compromise
of
a
nerve
root
.
.
.
or
the
spinal
cord.”),
available
https://www.ssa.gov/disability/professionals/bluebook/1.00-Musculoskeletal-Adult.htm
at
(last
visited Aug. 23, 2018). Moreover, plaintiff does not explain how these findings, which the doctor
characterized as mild, undermine the ME’s testimony that plaintiff was capable of performing
sedentary work.
Plaintiff’s reliance on a treatment note from June 13, 2012 is similarly misplaced. The note
indicates that plaintiff sought medical treatment because he had a “severe exacerbation of pain,”
and that he would receive an epidural steroid injection the next day. (R. 1124-25.) The next day
was June 14, 2012, the day the ME said plaintiff’s disability resumed. This note therefore supports
the ME’s testimony about the start date of plaintiff’s second period of disability but does not
suggest that plaintiff was disabled during the May 27, 2006 to June 14, 2012 period.
Plaintiff’s last argument is that the results of the two consultative exams (“CEs”) on May
2007 and December 2012 are essentially the same, and thus the conclusion that plaintiff was
disabled in 2012 should apply equally to the earlier period. Though the narratives of the two CE
reports are similar (see R. 749-53, 1093-96), the 2012 CE includes specific findings about
plaintiff’s ability (and lack thereof) to perform work-related activities (see R. 1097-1102), findings
that are absent from the May 2007 CE (see 749-53). Further, there is contemporaneous evidence
from plaintiff’s treaters that supports the findings of the 2012 CE (see, e.g., R. 1117-22, 1108-12,
1134-35, 1183-89, 1257-59), but no such evidence for the 2007 CE.
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In short, there is substantial support in the record for the ALJ’s conclusion that plaintiff
was not disabled during the period May 27, 2006 through June 14, 2012. Accordingly, there is no
basis for reversing the SSA’s decision.
Conclusion
For the reasons set forth above, the Court denies plaintiff’s motion for summary judgment
[24], grants the SSA’s motion for summary judgment [32], and affirms the decision of the SSA.
This case is terminated.
SO ORDERED.
ENTERED: August 23, 2018
M. David Weisman
United States Magistrate Judge
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