Peden v. Commissioner of Social Security

Filing 23

MEMORANDUM AND OPINION. The Commissioner's final decision is REVERSED and REMANDED 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 Magistrate Judge Clifford J. Proud on 7/10/2018. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PHILLIP W. P., 1
Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Case No. 17-cv-889-CJP 2

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff, 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 disability benefits in November 2013, alleging disability
as of December 21, 2011. After holding an evidentiary hearing, ALJ Lisa Leslie
denied the application on August 11, 2016. (Tr. 11-24). 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.

The Court will not use plaintiff’s full name in this Memorandum and Order in order to protect her
privacy. 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. 22.
1

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Issue Raised by Plaintiff
Plaintiff raises the following point:
1.

The ALJ erroneously found that plaintiff’s course of treatment and
daily living activities detracted from the credibility of his allegations,
and failed to consider plaintiff’s medications.
Applicable Legal Standards

To qualify for DIB, a claimant must be disabled within the meaning of the
applicable statutes and regulations. 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
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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.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (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, 512-513 (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).
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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 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). 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. Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003). 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 Leslie followed the five-step analytical framework described above. She
determined that plaintiff had not worked at the level of substantial gainful activity
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since the alleged onset date and that he was insured for DIB through December 31,
2016. She found that plaintiff had severe impairments of lumbar radiculopathy,
post-laminectomy syndrome, meralgia paresthetica, and obesity. 3
The ALJ found that plaintiff had the residual functional capacity (RFC) to
perform work at the sedentary exertional level limited to occasional climbing of
ramps and stairs; no climbing of ladders, ropes, or scaffolds; occasional balancing
and stooping; no kneeling, crouching, or crawling; and no work at unprotected
heights or around moving mechanical parts or other such hazards.

Based on the

testimony of a vocational expert, the ALJ concluded that plaintiff could not do his
past work, but he was not disabled because he was able to do other jobs which exist
in significant numbers in the national and regional economies.
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 point raised by plaintiff.
1.

Agency Forms

Plaintiff was born in 1974 and was 37 years old on the alleged date of onset.
(Tr. 191). He had a ninth grade education and had worked as a truck driver.
(Tr. 194-195).

3

“Meralgia paresthetica is a condition characterized by tingling, numbness and burning pain in your outer thigh. The
cause of meralgia paresthetica is compression of the nerve that supplies sensation to the skin surface of your thigh.”
https://www.mayoclinic.org/diseases-conditions/meralgia-paresthetica/symptoms-causes/syc-20355635, visited on
June 28, 2018.

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In December 2013, plaintiff reported that he could not sit, stand, lie, or walk
for a long period of time. He said he could not do anything without severe pain
going through his back and down his right leg.

He took Hydrocodone and

Fentanyl, which caused dizziness. He cooked three or four times a week when his
wife was at work, and sometimes picked his ten year old son up from school. He
did dishes once in a while. He did no yardwork. (Tr. 227-234). In February
2014, he reported that his back was getting worse, he had “grinding” in his spine,
and he was in a lot of pain. (Tr. 238).
2.

Evidentiary Hearing

Plaintiff was represented by an attorney at the evidentiary hearing in May
2016.

(Tr. 43). Counsel stated that plaintiff hurt his back in an accident while

driving a truck in December 2011; he had surgery in 2013, but continued to have
problems. He had been diagnosed with post-laminectomy syndrome. (Tr. 46).
Plaintiff testified that he had not worked since December 21, 2011. He said
he had a lot of pain in his back and his right leg. He could sit in a regular chair for
10 to 15 minutes and could stand for 10 to 15 minutes. He shifted positons back
and forth. (Tr. 49-50).
Plaintiff’s surgery made his problems worse. He had a lot more back pain
and issues with his right leg that he did not have before. He had physical therapy
and injections after the surgery. The injections did not give him any long term
relief. He was taking morphine every 12 hours and Norco pain pills every 6 hours.
The medications made him feel “really tired, like I’m high.” He had been on a
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Fentanyl patch, but was switched to morphine because it was stronger.

(Tr.

50-51). His medication sometimes made him doze off. (Tr. 55).
On a typical day, plaintiff sat in a recliner with a heating pad until his
medication got going. He took his son to school and spent most of the rest of the
day in his recliner. He did not do laundry because the washer and dryer were
downstairs and the steps were too much for him. He tried to run the vacuum,
which took only 5 or 10 minutes. He used a cane when he had to do any amount of
walking, like at a store. (Tr. 52-53).
His doctor talked about doing additional surgery which would involve putting
in a cage. The doctor said he was not sure it would help, so plaintiff had “put it on
hold.” (Tr. 55).
A vocational expert (VE) also testified. The ALJ asked her a hypothetical
question which corresponded to the ultimate RFC findings. The VE testified that
this person could not do plaintiff’s past work, but he could do other jobs such as
telemarketer, sedentary cashier, and surveillance monitor. (Tr. 59-62).
3.

Medical Records

In January 2012, an MRI of the lumbar spine showed degenerative disc
change at L5-S1, degenerative disc change at L4-5 with central disc herniation,
bilateral foraminal narrowing at L4-5, and degenerative facet joint changes at
L5-S1.

(Tr. 272-273).

Plaintiff was treated with series of epidural steroid

injections in March 2012 which provided relief only until the anesthetic wore off.
He was referred to Dr. Todd Stewart for surgical evaluation. (Tr. 275-283).
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Dr. Stewart, a neurosurgeon, performed surgery consisting of laminectomy,
decompression, and fusion at L4-S1 in April 2013. (Tr. 339-340).
In June 2013, Dr. Stewart referred plaintiff to Dr. Barry Feinberg for
evaluation and possible injection of the L4 nerve root. (Tr. 299). He had mid low
back pain and pain down his right leg. Dr. Feinberg diagnosed post-laminectomy
syndrome. 4 He administered an epidural injection. In July, he told Dr. Feinberg
the relief lasted only until the anesthetic wore off. Dr. Feinberg administered a
sacroiliac joint injection. (322-324).
In August 2013, plaintiff told Dr. Stewart he had only about 45 minutes of
relief after the injections. He complained of increasing back pain and leg pain.
(Tr. 307).
A CT scan in September 2013 showed no evidence of solid fusion. (Tr. 315).
In October 2013, Dr. Stewart noted that plaintiff still had low back and right
leg pain. He had trouble tolerating Neurontin and Lyrica. He referred plaintiff for
an EMG and noted that, if there were no signs of active denervation, he would not
benefit from further surgery. Plaintiff said that he did “extremely well” with a
TENS unit which distracted him from his pain and made it much more tolerable.
(Tr. 291).
In November 2013, an EMG and nerve conduction study was done to
investigate numbness and burning in plaintiff’s right thigh. This showed meralgia

Post-laminectomy syndrome is also called failed back surgery syndrome. See,
http://neurosurgicalassociatespc.com/post-laminectomy-syndrome/, visited on June 29, 2018.
4

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paresthetica rather than lumbar radiculopathy. (Tr. 308-309).
Dr. Feinberg administered a right femoral nerve block in December 2013.
(Tr. 348).

The next month, plaintiff told him his pain returned a few hours after

the nerve block. He had low back pain into the right leg. He sat “left slump” and
his gait was minimally antalgic. He had some difficulty transferring from sitting to
standing. Straight leg raising gave him pain in the right thigh down to the knee.
(Tr. 414-415).
In March 2014, plaintiff reported to Dr. Stewart that the he got only two
hours of relief after the latest injection by Dr. Feinberg. On exam, he had some
4+/5 weakness of the right quadriceps associated with pain, and increased
sensitivity in the right lateral thigh. Dr. Stewart noted that plaintiff had adjacent
level disease at L3-4 with a broad-based disc bulge, and he may benefit from
extension of the fusion up to L3-4. (Tr. 437).
In January 2015, a CT study of the lumbar spine showed a fusion at L4-S1
“without obvious solid contiguous fusion.” There was multilevel stenosis most
prominent at L3-4, “perhaps a little bit worse in comparison with 2013.” (Tr.
534-535). In February 2015, Dr. Stewart noted that the etiology of plaintiff’s right
thigh pain was unclear. The EMG results were consistent with neuralgia
paresthetica. He also noted that there had been a progression of the stenosis at
L3-4 and there was a “paucity of bone material in the posterior lateral recess from
L4-S1.” He discussed with plaintiff the possibility of additional surgery to extend
the fusion up to the L3 level, and putting more bone graft from L4-S1 to “buffer the
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existing fusion.”

Dr. Stewart noted that “he may or may not get relief of his

symptoms with this.” (Tr. 526).
In June 2015, Dr. Stewart noted that plaintiff had been using a bone growth
stimulator for about 3 months and had experienced burning in his legs and heat in
his right leg.

These symptoms had decreased since he stopped using the

stimulator about a week prior. Dr. Stewart directed him to refrain from using the
stimulator for 3 weeks and then to restart it. (Tr. 523).
Plaintiff last saw Dr. Stewart in August 2015. Dr. Stewart reviewed recent
x-rays and remarked “There is not a robust fusion seen.” He noted that plaintiff
had symptoms in his posterior buttocks consistent with piriformis syndrome,
symptoms of meralgia paresthetica, and ongoing issues with stenosis at L3-4 which
may require additional surgery in the future. He had reached maximum medical
improvement with his lumbar spine. (Tr. 520).
Analysis
ALJ Leslie denied plaintiff’s claim in August 2016. She did not cite SSR
16-3p, which supersedes the previous SSR on assessing a claimant’s credibility.
SSR 16-3p was republished in October 2017 and can be found at 2017 WL
5180304. SSR 16-3p became effective on March 28, 2016, and should be applied
by the ALJ in any case decided on or after that date.

2017 WL 5180304, at *1.

SR 16-3p eliminates the use of the term “credibility,” and clarifies that
symptom evaluation is “not an examination of an individual’s character.” Ibid., at
*2. “Adjudicators must limit their evaluation to the individual's statements about
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his or her symptoms and the evidence in the record that is relevant to the
individual's impairments. In evaluating an individual's symptoms, our adjudicators
will not assess an individual's overall character or truthfulness in the manner
typically used during an adversarial court litigation. The focus of the evaluation of
an individual's symptoms should not be to determine whether he or she is a truthful
person.” Ibid., at *11. SSR 16-3p continues to require the ALJ to consider the
factors set forth in the applicable regulation, 20 C.F.R. § 404.1529. In addition,
the ALJ is required to explain the rationale for her conclusion: “The determination
or decision must contain specific reasons for the weight given to the individual's
symptoms, be consistent with and supported by the evidence, and be clearly
articulated so the individual and any subsequent reviewer can assess how the
adjudicator evaluated the individual's symptoms.” Ibid., at *10.
The new SSR does not purport to change the standard for evaluating the
claimant’s allegations regarding his symptoms.

Thus, prior Seventh Circuit

precedents continue to apply.
The credibility findings of the ALJ are to be accorded deference, particularly
in view of the ALJ’s opportunity to observe the witness. Powers v. Apfel, 207 F.3d
431, 435 (7th Cir. 2000).

However, Social Security regulations and Seventh

Circuit cases “taken together, require an ALJ to articulate specific reasons for
discounting a claimant's testimony as being less than credible, and preclude an
ALJ from ‘merely ignoring’ the testimony or relying solely on a conflict between the
objective medical evidence and the claimant's testimony as a basis for a negative
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credibility finding.” Schmidt v. Barnhart, 395 F.3d 737, 746-747 (7th Cir. 2005),
and cases cited therein.
The ALJ is required to give “specific reasons” for her credibility findings.
Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). It is not enough just to
describe the plaintiff’s testimony; the ALJ must analyze the evidence. Ibid. See
also, Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009)(The ALJ “must justify the
credibility finding with specific reasons supported by the record.”) If the adverse
credibility finding is premised on inconsistencies between plaintiff’s statements and
other evidence in the record, the ALJ must identify and explain those
inconsistencies. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001).
Here, the ALJ made the usual boilerplate statement 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 consistent with
the medical evidence and other evidence in the record for the reasons explained in
this decision.” (Tr. 16). This statement is nonsensical: if plaintiff’s impairments
could reasonably be expected to cause the symptoms that he alleges, why does the
ALJ doubt the accuracy of his claims? See, Goins v. Colvin, 764 F.3d 677, 681–82
(7th Cir. 2014), making the point regarding a very similar boilerplate statement.
The ALJ failed to give specific reasons supported by the evidence for
doubting the veracity of plaintiff’s claims.
The ALJ suggested that the medical evidence did not support his allegations.
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She said, “Also persuasive is the claimant’s level of treatment, which has been
routine.” (Tr. 18). The meaning of this statement is far from clear. It does not
follow that “routine” treatment detracts from a claimant’s allegations about ongoing
symptoms. In any event, it is a stretch to call plaintiff’s treatment routine. He had
fusion surgery from L4 to S1 which has not been successful.

He has been

diagnosed with post-laminectomy syndrome, and the most recent CT study shows
there is not “obvious solid contiguous fusion.” Dr. Stewart, who did the surgery,
acknowledges that there is not a “robust fusion.”
Plaintiff is correct that the ALJ misconstrued some of the medical evidence.
She said that “Despite his allegations that he got limited relief from treatment, the
record suggests otherwise.” (Tr. 18). She then cited to medical records which
show, contrary to her suggestion, that injections and a nerve block relieved
plaintiff’s pain for only a short time, until the anesthetic wore off. She noted that
plaintiff had only a “slight progression” of facet arthropathy and stenosis at L3-4.
That the progression was “slight” does not detract from plaintiff’s claims. The
condition was serious enough that Dr. Stewart was willing to do another surgery to
fuse that level as well. The ALJ concluded from plaintiff’s refusal of additional
surgery that his symptoms are not as serious as he claims, but, as he explained at
the hearing, his doctor told him he was not sure it would help. That testimony is
substantiated by Dr. Stewart’s note from August 2015.
The ALJ also remarked that Dr. Stewart said plaintiff had reached maximum
medical improvement with regard to his lumbar spine. Plaintiff injured his back
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on the job and made a workers’ compensation claim. Dr. Stewart sent copies of
his office notes to the workers’ compensation insurance carrier, Missouri
Employer’s Mutual.

See, e.g., Tr. 520.

The concept of “maximum medical

improvement” is relevant to a workers’ compensation claim and relates to an
injured employee’s entitlement to temporary total disability payments; that
entitlement ends when the employee reaches maximum medical improvement,
meaning the employee’s condition has stabilized and is not expected to improve.
See, e.g., Westin Hotel v. Industrial Commission of Illinois, 865 N.E.2d 342, 356
(Ill. App. 1st Dist. 2007). It does not mean, as the ALJ seems to think, that the
patient has recovered or is symptom-free.
The ALJ’s reference to plaintiff’s daily activities does not support her
conclusion either. She pointed out that plaintiff drove his son to school, vacuumed
for a few minutes, sometimes went to the grocery store, prepared meals,
occasionally did dishes, and occasionally walked outside. Although an ALJ should
consider activities, this must be done with care.

These meager and sporadic

activities do not demonstrate that plaintiff was exaggerating his pain and they
hardly suggest an ability to work fulltime. Childress v. Colvin, 845 F.3d 789, 792
(7th Cir. 2017); Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir. 2013).
The ALJ failed to give good reasons grounded in the evidence for her decision
not to credit plaintiff’s allegations. This was error. Ghiselli v. Colvin, 837 F.3d
771, 778 (7th Cir. 2016)
The erroneous credibility determination requires remand. “An erroneous
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credibility finding requires remand unless the claimant's testimony is incredible on
its face or the ALJ explains that the decision did not depend on the credibility
finding.” Pierce v. Colvin, 739 F.3d 1046, 1051 (7th Cir. 2014).
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.
DATE:

July 10, 2018.

s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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