Buescher v. Commissioner of Social Security
Filing
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MEMORANDUM AND ORDER, 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. Signed by Judge J. Phil Gilbert on 6/19/2017. (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER BUESCHER,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.1
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Case No. 16-cv-616-JPG-CJP
MEMORANDUM and ORDER
In accordance with 42 U.S.C. § 405(g), plaintiff Christopher Buescher, represented by
counsel, seeks judicial review of the final agency decision denying his application for Disability
Insurance Benefits (DIB) pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for DIB on March 26, 2013, alleging disability beginning December 24,
2011. (Tr. 18.) After holding an evidentiary hearing, Administrative Law Judge (ALJ) Bradley
Davis denied the application in a written decision dated December 1, 2014. (Tr. 25.) The
Appeals Council denied review, and the decision of the ALJ became the final agency decision.
(Tr. 1.) Administrative remedies have been exhausted and a timely complaint was filed in this
Court.
Issues Raised by Plaintiff
Plaintiff raises the following points:
1. The ALJ erred in not considering plaintiff’s diagnosis of lumbar failed back surgery
syndrome.
1
Nancy A. Berryhill is now the Acting Commissioner of Social Security. See https://www.ssa.gov/agency/
commissioner.html (visited Feb. 7, 2017). She is automatically substituted as defendant in this case. See Fed. R.
Civ. P. 25(d); 42 U.S.C. § 405(g).
2. The ALJ erred in not considering plaintiff’s cane usage.
3. The ALJ erred in not considering plaintiff’s prescribed pain medication and spinal
cord stimulator.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of the applicable
statutes. For these purposes, “disabled” means 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).
A “physical or mental impairment” is an impairment resulting from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.
42 U.S.C. § 423(d)(3).
“Substantial gainful
activity” is work activity that involves doing significant physical or mental activities and that is
done for pay or profit. 20 C.F.R. § 404.1572.
Social Security regulations set forth a sequential five-step inquiry to determine whether a
claimant is disabled. The Seventh Circuit Court of Appeals has explained this process as
follows:
The first step considers whether the applicant is engaging in substantial gainful
activity. The second step evaluates whether an alleged physical or mental
impairment is severe, medically determinable, and meets a durational
requirement. The third step compares the impairment to a list of impairments that
are considered conclusively disabling. If the impairment meets or equals one of
the listed impairments, then the applicant is considered disabled; if the
impairment does not meet or equal a listed impairment, then the evaluation
continues. The fourth step assesses an applicant’s residual functional capacity
(“RFC”) and ability to engage in past relevant work. If an applicant can engage in
past relevant work, he is not disabled. The fifth step assesses the applicant’s
RFC, as well as his age, education, and work experience to determine whether the
applicant can engage in other work. If the applicant can engage in other work, he
is not disabled.
2
Craft v. Astrue, 539 F.3d 668, 674 (7th Cir. 2008); accord Weatherbee v. Astrue, 649 F.3d 565,
568-69 (7th Cir. 2011).
Stated another way, it must be determined:
(1) whether the claimant is presently
unemployed; (2) whether the claimant has an impairment or combination of impairments that is
serious; (3) whether the impairments meet or equal one of the listed impairments acknowledged
to be conclusively disabling; (4) whether the claimant can perform past relevant work; and (5)
whether the claimant is capable of performing any work within the economy, given his or her
age, education and work experience. 20 C.F.R. § 404.1520; Simila v. Astrue, 573 F.3d 503, 51213 (7th Cir. 2009); Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir. 1992).
If the answer at steps one and two is “yes,” the claimant will automatically be found
disabled if he or she suffers from a listed impairment, determined at step three. If the claimant
does not have a listed impairment at step three and cannot perform his or her past work (step
four), the burden shifts to the Commissioner at step five to show that the claimant can perform
some other job. Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984); see also Zurawski v.
Halter, 245 F.3d 881, 886 (7th Cir. 2001) (Under the five-step evaluation, an “affirmative
answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is
disabled. . . . If a claimant reaches step 5, the burden shifts to the ALJ to establish that the
claimant is capable of performing work in the national economy.”).
This Court reviews the Commissioner’s decision to ensure that the decision is supported
by substantial evidence and that no mistakes of law were made. It is important to recognize that
the scope of review is limited. “The findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). Thus, this
Court must determine not whether plaintiff was, in fact, disabled at the relevant time but whether
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the ALJ’s findings were supported by substantial evidence and whether any errors of law were
made. See Books v. Chater, 91 F.3d 972, 977-78 (7th Cir. 1996) (citing Diaz v. Chater, 55 F.3d
300, 306 (7th Cir. 1995)).
This Court uses the Supreme Court’s definition of substantial
evidence, i.e., “such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
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. Brewer v. Chater, 103 F.3d 1384,
1390 (7th Cir. 1997); Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014). 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
ALJ Davis followed the five-step analytical framework describe above. He determined
that plaintiff had not been engaged in substantial gainful activity since December 24, 2011, and
had a severe impairment of degenerative disc disease status post-operative. (Tr. 20.) The ALJ
further opined that plaintiff had the RFC to perform sedentary work, except that he needed to
alternate between sitting and standing; he could do a job sitting for one hour, then he would
need to shift positions; he could not use his lower extremities for use of foot controls; and he
could not work around occupational hazards such as unprotected heights or dangerous
machinery. (Tr. 21.) The ALJ then found that although plaintiff could not perform any past
relevant work, he was not disabled because he could perform jobs that existed in significant
numbers in the national economy. (Tr. 24.)
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The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in formulating this
Memorandum and Order. The following summary of the record is directed to the points raised
by plaintiff.
1.
Agency Forms
Plaintiff was born on January 9, 1981, and was last insured on December 31, 2016. (Tr.
171.) Plaintiff completed two years of college in 2005 and also graduated from the police
academy that same year. (Tr. 175.) He previously worked as a police officer and in security
from 1999 to December 2011. (Tr. 183.)
Plaintiff alleged that lumbar injuries, the limited use of his left leg, and “hpt” limited his
ability to work. (Tr. 174.) Specifically, he stated that he had not been released to perform any
work and had to lay down most of the day due to pain and numbness in his left leg and pain in
his back. Additionally, he was not supposed to lift anything and he walked with a cane. (Tr.
186.)
From the time he woke up until the time he went to bed, plaintiff reclined or lay down
while watching television. The pain interrupted his sleep. Plaintiff’s wife helped him put on his
socks and shoes, and he had to use a shower chair. He was unable to stoop over the sink to shave
and had difficulty getting up and down from the toilet. (Tr. 187.) He microwaved frozen dinners
each day but could not perform any other household chores. (Tr. 188.) Plaintiff could walk less
than a block with a cane before needing to stop and rest. (Tr. 191.)
In a subsequent disability report from November 2013, plaintiff stated that his pain had
worsened since his previous report. (Tr. 210.) He also stated that his conditions further limited
his ability to care for his personal needs and perform daily activities. (Tr. 213.)
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2.
Evidentiary Hearing
Plaintiff was represented by counsel at the evidentiary hearing, conducted on November
5, 2014. (Tr. 32.)
Plaintiff testified that he lived with his wife and three children, ages six, eight, and ten.
He did not perform any household chores because he could not lift anything without pain and
had to lie down or recline most of the time. (Tr. 37-38.)
Plaintiff last worked on Christmas Eve 2011, when he fell and shattered his L5-S1 disc in
his back. Plaintiff used a spinal stimulator and was instructed not to lift anything weighing more
than a gallon of milk. He was restricted to lying or sitting in a reclined position. (Tr. 38.)
Plaintiff denied any other medical issues. Plaintiff had surgery with instrumentation, a spinal
fusion, injections, and a spinal stimulator placed.
He also attended pain management and
physical therapy. At the time of the hearing, plaintiff received treatment from Dr. Davee.2 (Tr.
39.) Dr. Davee believed that further surgery would exacerbate plaintiff’s nerve damage and
radiculopathy. Plaintiff took Oxycodone, Lisinopril for high blood pressure, and Ativan for
depression and anxiety. (Tr. 40.) He wore a spinal stimulator at all times, beginning two months
prior. He was prescribed a cane and had been using it for three years. Plaintiff could usually
stand for approximately ten to twelve minutes. Plaintiff spent his days either lying in bed,
watching television, or reclining. He tried to walk around the house but that was “too much.”
(Tr. 41.)
Dr. Buchowski told plaintiff he needed a cane following surgery. Plaintiff purchased the
cane from Walgreens. Dr. Davee and Dr. Rudolph also told plaintiff he needed a cane. (Tr. 42.)
The spinal cord stimulator helped alleviate some of plaintiff’s pain. (Tr. 43.)
2
At hearing, plaintiff refers to Dr. Davee and Dr. Rudolph. Based on the medical records, the Court believes these
references should be to Dr. Bukal Dave and Dr. Adele Roth.
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Plaintiff had been recently taken off Dilaudid for his pain and just took Oxycodone.
Plaintiff had a driver’s license and drove twenty minutes to attend the hearing. He was unable to
drive for longer than an hour. (Tr. 43.)
Plaintiff stated that he could not perform a job that consisted primarily of sitting or
standing and did not require heavy lifting or carrying because he was constantly lying down, in a
reclined position, or getting up and down. (Tr. 44.)
Plaintiff most recently worked at a casino as a security officer and supervisor. He
conducted employee evaluations and maintained the scheduling. Prior to this, plaintiff was a
police officer and a security officer at a hospital. (Tr. 46.) Plaintiff worked at the hospital for
three years as a sergeant, which was a supervisory position that entailed hiring and firing
employees. Plaintiff also worked as a patrol officer at a municipal court and as a jailor for
approximately one year. In his position as a jailor, plaintiff booked inmates into custody,
prepared meals, and broke up altercations. (Tr. 47.)
Plaintiff’s primary care physician prescribed him Ativan, but he did not attend counseling
because his insurance did not cover it. (Tr. 47.)
Dr. Jeffrey Magrowski, a vocational expert (VE), also testified. The ALJ posed several
hypothetical questions regarding a person who could perform sedentary work with various
restrictions. The VE testified there were jobs in the national and local economy that such a
person could perform. (Tr. 48-51.)
If the hypothetical person had to be off task for twenty percent of an eight-hour workday,
he would not be able to hold any position. (Tr. 52-53.) Furthermore, if the individual needed to
lie down or recline outside of customary breaks, he would be precluded from holding the
identified positions. If the hypothetical individual were confined to sedentary work except that
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he had to change positions every hour and used a cane to balance, he would be precluded from
holding the identified positions. The VE could not identify any jobs that such a person could
perform. (Tr. 53.)
3.
Medical Records
Throughout the relevant period, plaintiff experienced problems with his pancreatitis,
liver, and gallbladder and had gastrointestinal issues as well.
(Tr. 20.) Plaintiff reported
associated back pain on several instances. (Tr. 236, 267, 270, 405, 700, 719, 733.) The ALJ,
however, found that “claimant did not really allege that these conditions caused him significant
work-related limitations” and that the evidence showed they did not result in limitations that
lasted for twelve months or longer.
Thus, according to the ALJ, these were not severe
impairments. (Tr. 20.) The plaintiff made no objection to this finding, so this medical summary
is accordingly focused.
After falling at work in December 2011, plaintiff began experiencing back pain,
numbness and tingling in his left leg and problems balancing. (Tr. 680, 776-78.) An MRI
showed degenerative disc disease but no acute fracture. (Tr. 682.)
Plaintiff presented to Dr. Buchowski at Washington University Orthopedics in January
2012 with back pain he rated at an eight out of ten in severity. (Tr. 463.) He was diagnosed with
L5 and S1 radiculopathy secondary to a left paracentral disc protrusion at the L5-S1 level. Dr.
Buchowski recommended a non-operative treatment program consisting of physical therapy and
transforaminal epidural steroid injections.
He concluded that plaintiff was temporarily
completely disabled and unable to return to work. (Tr. 465.)
After attempting physical therapy (Tr. 833-36) and receiving a steroid injection (Tr. 775),
plaintiff returned to Dr. Buchowski and reported that his symptoms persisted (Tr. 814.) He also
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told Dr. Buchowski he was walking with a cane and wished to proceed with surgery. (Tr. 817.)
Plaintiff underwent a spinal fusion in May 2012. (Tr. 751-55.) The operative findings
consisted of recurrent left L5-S1 paracentral disc herniation with severe degenerative disc
disease at the L5-S1 level. (Tr. 752.) Plaintiff was discharged with Percocet and Flexeril. He
was instructed not to drive for one month and not to stoop, bend, or twist his hips for six weeks.
He was also instructed not to bend or lift anything weighing more than ten pounds for four
months. (Tr. 757.)
Plaintiff attended several follow-up clinical and radiographic evaluations with Dr.
Buchowski following his fusion. During each evaluation, physical examination demonstrated
that plaintiff walked with a mildly antalgic gait, stood in normal alignment, and had normal
motor strength throughout his lower extremities with some exception, could squat down and rise
back up. (Tr. 262, 349, 381, 385, 402, 831, 863, 907.)
Radiographs generally demonstrated posterior spinal fusion with instrumentation and
TLIF (transforaminal lumbar interbody fusion) at L5-S1 and all implants appeared to be in good
position with no evidence of implant loosening or failure. (Tr. 263, 386, 863.) Dr. Buchowski
noted after each evaluation that plaintiff was temporarily completely disabled. (Tr. 263, 350,
386, 403, 465, 815, 818, 863.)
Plaintiff did “really well” immediately after surgery. His left lower extremity radicular
symptoms were initially resolved, and his low back pain had improved. However, in June 2012
Plaintiff reported an exacerbation of his low back pain with radiation into his right lower
extremity. He was taking Gabapentin, Hydrocodone, and Flexeril for pain relief. He stated that
while his pain was manageable, it was still significant. (Tr. 402.) Dr. Buchowski prescribed
plaintiff a Medrol Dosepak and told plaintiff to increase his dosage of Gabapentin. (Tr. 403.)
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In September 2012, Dr. Buchowski reviewed an MRI of plaintiff’s spine and opined that
his symptoms were due to scarring around the left S1 nerve root. He recommended plaintiff take
Gabapentin or Pregabalin. Dr. Buchowski also recommended injections if symptoms persisted.
(Tr. 381.) Plaintiff eventually received injections on several occasions (Tr. 284, 920, 946.)
Dr. David Lange conducted two independent spine evaluations of plaintiff in 2013. (Tr.
870, 899.) Plaintiff reported using a cane, not being able to walk for any period, and falling
twice during his clinical course. Dr. Lange noted that Waddell testing was somewhat more than
moderately positive. He also found that plaintiff had no overt difficulty ambulating. He opined
plaintiff would likely not test much beyond the sedentary physical demand level, and the best
approach would be for plaintiff to ween off his narcotics. (Tr. 871.)
Upon recommendation from Dr. Buchowski, plaintiff underwent pain and medication
management during 2014. (Tr. 931, 944, 947, 950, 953, 956.) Physicians noted that plaintiff
walked with a cane. (Tr. 933, 956.) He was diagnosed with lumbar DDD,3 lumbar failed back
surgery syndrome, and chronic pain. (Tr. 941.) Plaintiff began using a spinal cord stimulator.
(Tr. 950.)
During pain management, plaintiff stated that remaining in any position for too long or
standing exacerbated his pain. (Tr. 944.) He also stated at various points that the pain interfered
with his sleep, general activity, mood, normal work, relationships with others, enjoyment of life,
and ability to concentrate. (Tr. 931, 944, 947, 950, 953, 956.)
On September 16, 2014, plaintiff attended a pain management evaluation and stated his
left leg numbness was getting worse, but the spinal cord stimulator was helping with pain.
Plaintiff began using his cane again due to numbness and weakness. He rated his pain at a six
3
“DDD” is an acronym for degenerative disc disease. 1 Medical Information System for Lawyers § 6:202 (2d ed.
2016).
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out of ten. His mobility was listed as “Independent and Antalgic.” (Tr. 956.) The physician
noted that plaintiff’s power was decreased in his left lower extremity, and sensations to light
touch were decreased in the left L4, L5 area. (Tr. 958.)
4.
State Agency Consultant RFC Assessment
Dr. Gotway conducted an RFC of plaintiff in May 2013. (Tr. 56-65.) He diagnosed
plaintiff with DDD (Disorder of Back-Discogenic and Degenerative), inflammatory bowel
disease, and essential hypertension. He found plaintiff partially credible, and noted that Dr.
Buchowski “[did] not mention to use of a cane in his records,” but plaintiff reported that he was
prescribed a cane. (Tr. 60.) Dr. Gotway determined that plaintiff could occasionally lift and/or
carry ten pounds; stand and/or walk for a total of two hours; sit for a total of approximately six
hours in an eight-hour workday; and push and/or pull an unlimited amount; and must
periodically alternate sitting and standing to relive pain and discomfort. (Tr. 61.) Furthermore,
plaintiff could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, but
never climb ladders, ropes, or scaffolds. (Tr. 61-62.) He opined that plaintiff should also avoid
even moderate exposure to hazards. (Tr. 62.) Dr. Gotway ultimately found that plaintiff had the
RFC to perform sedentary work. (Tr. 64.)
Analysis
The Court turns first to whether the ALJ erred when he did not instruct the VE to
consider cane usage in the hypothetical RFC. Plaintiff urges this necessitates remand because
the VE testified that dependence on a cane would preclude plaintiff from performing the
sedentary jobs identified at the hearing.
Similar arguments were made in Tripp v. Astrue, 489 F. App’x 951 (7th Cir. 2012), and
Thomas v. Colvin, 534 F. App’x 546 (7th Cir. 2013). In Thomas, the Seventh Circuit Court of
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Appeals held that the ALJ’s failure to address Thomas’s need for a cane required remand
because “the ALJ ignored virtually all the evidence in the record demonstrating Thomas’s need
for a cane” and “did not say more or address the extensive other evidence concerning Thomas’s
need for a cane.” Thomas, 489 F. App’x at 550. The “extensive other evidence” included doctor
notes describing repeated falls, a prescription for a cane, questionnaires the plaintiff submitted to
the agency explaining her need for a cane, doctors’ observations that plaintiff used a cane, and
“most concerning, the presence of the cane at Thomas’s hearing and her testimony about why
she needed it.” Id.
Alternatively, in Tripp, the Seventh Circuit Court of Appeals held that the ALJ was not
required to consider Tripp’s use of crutches because the ALJ never found that they were
medically necessary. Tripp, 489 F. App’x at 955. It was noted that “[a] finding of necessity
must rest on ‘medical documentation establishing the need for a hand-held assistive device to aid
in walking and standing, and describing the circumstances for which it is needed.’” Id. (quoting
SSR-96-9p). The court pointed out that references to Tripp’s use of crutches in the record were
traceable to self-reports and physicians’ observations.
Id.
The court held that absent an
“unambiguous opinion from a physician stating the circumstances in which an assistive device is
medically necessary,” the ALJ’s determination was not error. Id.
Here, the evidence in the record regarding plaintiff’s use of a cane is more akin to the
circumstances in Tripp than in Thomas. As noted by the ALJ, plaintiff reported that “he could
walk less than a block with a cane before he had to rest for several minutes,” and “examiners
observed that the claimant limped and used a cane.” (Tr. 22-23.) The record also includes
instances where plaintiff reported to his physician that he had fallen, although the ALJ makes no
reference to them. Aside from self-reported usage and observations by physicians, the record
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does not contain “extensive” evidence that would necessitate a finding of medical necessity by
the ALJ. There is no prescription for a cane or an “unambiguous” medical opinion that plaintiff
needed a cane. The ALJ determined that, although some examiners observed that plaintiff
limped and used a cane, “most of the time they observed he had only a mildly antalgic gait,” and
“[a]t other times, examiners observed that the claimant’s gait was normal.” (Tr. 23.) Substantial
evidence in the record, in the form of “essentially normal examinations,” supports the ALJ’s
determination to exclude plaintiff’s cane usage from the RFC assessment. (Tr. 23.) Although
the ALJ could have more diligently addressed plaintiff’s cane usage, the ALJ’s determination
need not be flawless, as long as it is supported by “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Thus, the ALJ
did not err by excluding plaintiff’s cane usage in assessing his RFC.
Plaintiff also argues that the ALJ erred by not addressing plaintiff’s diagnosis of failed
back surgery syndrome (FBSS). Although unclear, plaintiff’s argument seemingly has two parts:
(1) the ALJ should have found that plaintiff’s FBSS constituted a severe impairment; and (2) the
ALJ should have considered the diagnosis in assessing plaintiff’s subjective complaints.
The determination of whether a plaintiff suffers from a severe impairment is “merely a
threshold requirement,” and if the ALJ “determines that the claimant has one severe impairment,
the ALJ will proceed to the remaining steps of the evaluation process.” Curvin v. Colvin, 778
F.3d 645, 648 (7th Cir. 2015) (quoting Castile v. Astrue, 617 F.3d 923, 926-27 (7th Cir. 2010)).
Therefore, so long as the ALJ finds at least one severe impairment, continues to the next steps,
and “consider[s] all of [plaintiff’s] severe and non-severe impairments, the objective medical
evidence, [his] symptoms, and [his] credibility when determining [his] RFC immediately after
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step 3,” any mistake in evaluating the plaintiff’s severe impairments is harmless. Id. at 649-50.
Since the ALJ found at least one severe impairment and continued on to assess plaintiff’s
RFC, the ALJ did not commit reversible error so long as he properly addressed plaintiff’s
diagnosis of FBSS in the third step.
FBSS is “a term that refers to persistent back pain after surgery.” Filus v. Astrue, 694
F.3d 863, 865 (7th Cir. 2012). Although the ALJ did not directly refer to FBSS, he took notice
of plaintiff’s fusion and then acknowledged plaintiff’s subsequent back issues. For instance, the
ALJ cited plaintiff’s diagnosis of radiculopathy, abnormal radiographs of plaintiff’s lumbar
spine, plaintiff’s decreased sensation and lower extremity weakness, and plaintiff’s own
complaints of back pain and the resulting limitations. (Tr. 22.) Thus, merely failing to use the
label “FBSS” is not a reversible error because it would not substantively change the ALJ’s
analysis.
Plaintiff next asserts that the ALJ erred by not addressing plaintiff’s pain medications and
spinal cord stimulator (SCS). “[A]lthough an ALJ does not need to discuss every piece of
evidence in the record, the ALJ may not analyze only the evidence supporting her ultimate
conclusion while ignoring the evidence that undermines it.” Moore v. Colvin, 743 F.3d 1118,
1123 (7th Cir. 2014).
The ALJ here held in boilerplate fashion that plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this decision.” (Tr. 22.) The
ALJ mentioned that plaintiff stated his back pain precluded him from working and performing
other activities and required him to lie down most of the day. The ALJ also mentioned plaintiff’s
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steroid injections and fusion surgery. The ALJ ultimately gave less credence to plaintiff’s
subjective complaints because plaintiff “drove short distances . . . which is not quite indicative of
his allegations [of difficulty dressing and bathing],” plaintiff exhibited “essentially normal
examinations,” and Dr. Lange noted, “Waddell testing was somewhat more than moderately
positive.” (Tr. 22-23.)
Throughout this analysis, however, the ALJ wholly failed to acknowledge plaintiff’s
prescriptions for strong pain medications, such as Oxycodone and Gabapentin, and his SCS. The
Seventh Circuit Court of Appeals has noted that this particular evidence may be significant,
given the unlikelihood that a plaintiff would undergo pain treatment involving “heavy doses of
strong drugs” and surgical implantation such as a SCS merely to increase his chances of
obtaining DIB. Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004). Moreover, 20 C.F.R.
§ 404.1529(c)(3) provides that the ALJ will consider the plaintiff’s treatments, as well as “[t]he
type, dosage, effectiveness, and side effects of any medication . . . taken to alleviate [] pain or
other symptoms.” Because the ALJ failed to “confront the evidence that does not support [his]
conclusion and explain why that evidence was rejected,” the ALJ’s determination cannot be
meaningfully reviewed and remand is required. Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir.
2012).
In conclusion, the ALJ erred in assessing plaintiff’s RFC, because he did not address
plaintiff’s pain medication or SCS. However, the ALJ adequately addressed plaintiff’s diagnosis
of FBSS, albeit not by name. Additionally, the ALJ’s decision to exclude plaintiff’s cane usage
from the RFC determination was supported by substantial evidence in the record, and therefore
will not serve as grounds for reversal.
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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.
DATE: June 19, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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