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Lucio v. Barnhart

United States District Court, N.D. Illinois, Eastern Division
Jun 22, 2004
Case No. 03 C 7078 (N.D. Ill. Jun. 22, 2004)

Opinion

Case No. 03 C 7078.

June 22, 2004


REPORT AND RECOMMENDATION


Plaintiff Rafael Lucio (hereinafter "Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration denying his applications for Disability Insurance Benefits (hereinafter "DIB") under Title II of the Social Security Act (the "Act") and Supplemental Security Income (hereinafter "SSI") benefits under Title XVI of the Act. Before the Court are Plaintiff's motions for summary judgment and remand and Defendant's motion for summary judgment in the cause. For the reasons set forth below, the Court recommends that the cause be remanded for further proceedings consistent with this opinion.

PROCEDURAL HISTORY

On January 23, 2001, Plaintiff applied for DIB and SSI benefits alleging he became disabled as of July 20, 1998. (R. 98-100, 310-14.) Plaintiff's applications for benefits were initially denied and, denied again, upon reconsideration. (R. 69-77, 318-21, 323-26, 328-30.) Plaintiff then filed a timely request for an administrative hearing and, on October 22, 2002, Plaintiff appeared with counsel and testified at a hearing before an Administrative Law Judge ("ALJ"). (R. 26-66, 78.)

References are to the certified administrative record prepared by the Commissioner and filed with this Court pursuant to 42 U.S.C. § 405(g).

On January 6, 2003, the ALJ issued his decision finding that Plaintiff was not disabled. (R. 10-20.) Plaintiff then filed a request for review of the ALJ's decision, and, on August 8, 2003, the Appeals Council denied Plaintiff's request for review making the ALJ's decision the final decision of the Commissioner. (R. 6-9.) Pursuant to 42 U.S.C. § 405(g), Plaintiff initiated this civil action for judicial review of the Commissioner's final decision.

BACKGROUND FACTS

I. PLAINTIFF'S BACKGROUND

Plaintiff was born in Mexico on December 3, 1952 and became a United States citizen in 1995. (R. 32.) He completed elementary and secondary school in Mexico which is equivalent to approximately a ninth grade education. (R. 32-33.) Plaintiff can speak some English, but he is not fluent and has difficulty understanding oral instructions. (R. 28, 138.) He can read and write, but he has limited proficiency because English is his second language. (R. 33, 138.)

He was forty-nine years old at the time of the administrative hearing and was fifty years old when the ALJ rendered his decision. (R. 19, 32.)

Plaintiff worked inter alia as a material handler in a denim mill, a twister operator in a carpet mill, a service helper for an appliance company, a cook and dishwasher in a restaurant, and as a farm laborer. (R. 37-46, 124-32.) These jobs entailed inter alia constant standing, lifting substantial amounts of weight (in some instances), climbing, and bending. (R. 37-46.)

In 1998, Plaintiff stopped working after he was injured in an automobile accident. (R. 38.)

Plaintiff moved from Georgia to Illinois in late May or early June of 2002. (R. 57.) He lived with his brother and nephew. (R. 31.)

II. MEDICAL EVIDENCE

A. Hearing Evidence

On July 20, 1998, Plaintiff sustained a head-on automobile collision. (R. 167.) As a result of the accident, he suffered chest wall trauma and a retrosternal (behind the sternum) hematoma (blood clot). ( Id.)

After the accident, Plaintiff experienced persistent lower back and right lower extremity pain. (R. 185.) Initially, he was treated with medications and advised to change his activities. ( Id.) Plaintiff also underwent physical therapy to help relieve his pain. (R. 189.)

Plaintiff underwent thirty physical therapy sessions between October 28, 1998 and January of 1999. (R. 189.)

In January of 1999, Dr. Larry M. Kjeldgaard, D.O. (orthopedic specialist/surgeon), examined Plaintiff for complaints of lower back pain. (R. 189-90.) Dr. Kjeldgaard diagnosed degenerative disc disease that was asymptomatic before the July 20, 1998 accident, but had become symptomatic as a result of the trauma from the accident. (R. 189.) An X-ray evaluation at the time showed "disc space collapse [at] L5-S1 with some facet arthrosis of the bottom segment." ( Id.) Dr. Kjeldgaard noted that Plaintiff had some pain "about the lumbosacral junction centrally and pain about the right sided paravertebral musculature in the lower thoracic mid upper and lower lumbar region." ( Id.) Dr. Kjeldgaard further indicated that physical therapy had been of some help to Plaintiff, but he still had "nagging discomfort" and "pain about the lumbosacral junction." ( Id.) Dr. Kjeldgaard noted that Plaintiff was not working at that time, but he was scheduled to return to work on February 5, 1999. ( Id.)

Dr. Kjeldgaard is an orthopedic specialist who performs orthopedic and spine surgery. (R. 185.) He is board-certified and a fellow of the American Osteopathic Academy of Orthopedics. (R. 185.)

Dr. Kjeldgaard's examination of Plaintiff revealed that his spinal extension was limited from zero to ten degrees out of a possible thirty degrees (with increased pain throughout the lumbosacral junction) and his left and right side bending was limited at about zero to twenty degrees out of a possible thirty degrees (with increased pain). (R. 189.) Moreover, Dr. Kjeldgaard's examination showed that when Plaintiff bent over he could bring his fingertips halfway between his knees and the floor. ( Id.) Dr. Kjeldgaard noted that while Plaintiff would probably have to return to work in his job as a material handler "in order to put food on the table" he advised Plaintiff "to try and get out of [his] line of work because lifting, pushing, or pulling with his back [was] going to exacerbate the problem . . . and slow down the healing process." (R. 190.) Dr. Kjeldgaard recommended that Plaintiff have lumbar epidural steroid injections and undergo a threaded cage fusion at L5-S1, if he did not get better. ( Id.) To help alleviate his pain, Dr. Kjeldgaard prescribed hydrocodone (narcotic pain medication) and Motrin (nonsteroidal anti-inflammatory pain medication). ( Id.)

Medications containing hydrocodone (a mild narcotic similar to codeine) are prescribed to treat moderate to moderately severe pain. The PDR Family Guide to Prescription Drugs (hereinafter " PDR Family Guide") 709, 732 (9th ed. 2002).

On February 4, 1999, Dr. Kjeldgaard indicated that Plaintiff should not work for a month. (R. 184, 185.)

Plaintiff underwent a magnetic resonance imaging (hereinafter "MRI") scan of his lumbar spine on February 24, 1999. (R. 181.) The MRI indicated that Plaintiff has severe disc space narrowing at the L5-S1 disc and symmetrical bulging of the disc with associated vertebral osteophyte. ( Id.) The MRI further showed a small left lateral disc protrusion at the L4-5 level (which could cause some nerve root impingement) and secondary bone degenerative changes adjacent to the L5-S1 degenerative disc. ( Id.) Plaintiff's MRI therefore indicated that he has advanced degenerative disc disease (disc changes) without significant foraminal or spinal stenosis. ( Id.)

As recommended by Dr. Kjeldgaard, Plaintiff began a series of lumbar epidural steroid injections. (R. 180, 190.) On February 26, 1999, Plaintiff had his first injection and, on March 10, 1999, he reported he had about a twenty-five to thirty percent improvement in his painful symptoms as a result of the injection. (R. 180.) Plaintiff also indicated, at the time, that his pain was exacerbated while sitting for long periods of time, but it was improving. ( Id.) He further reported that he had increased pain while performing two of his physical therapy exercises, but he was able to walk and do other physical therapy exercises without a great deal of discomfort. ( Id.)

On March 10, 1999, Plaintiff underwent a second lumbar epidural steroid injection. (R. 180.) At the time of his second injection, Plaintiff's physical condition remained the same except for the fact that he had fewer muscles spasms in his "cervical and lumbar paravertebrals." ( Id.)

Dr. Kjeldgaard examined Plaintiff on March 17, 1999. (R. 177.) As of that date, Dr. Kjeldgaard reported that Plaintiff's injections had only given him minimal relief and as soon as the medication from the injections wore off, his symptoms returned. ( Id.) Dr. Kjeldgaard noted that Plaintiff had increased pain on spinal extension and when Plaintiff bent over he could bring his fingertips about two feet away from the floor. ( Id.) In addition, Dr. Kjeldgaard observed that Plaintiff's straight-leg raising of his right leg caused him pain and there were some limitations in his range of motion. ( Id.) He concluded that Plaintiff would not obtain significant relief from additional physical therapy or injections and recommended that he have surgery. ( Id.) Dr. Kjeldgaard referred Plaintiff to Dr. Anthony Martino (orthopedic surgeon) M.D. for surgery because he was taking a new position out of the state. ( Id.) Furthermore, Dr. Kjeldgaard, again, indicated that Plaintiff should not work for another month. (R. 176.)

On April 14, 1999, Dr. Martino examined Plaintiff. (R. 213.) At that time, Dr. Martino reported that Plaintiff has pain that goes down both his lower extremities to below his posterior thigh and calf, just below his knee, but not into his foot. ( Id.) Dr. Martino noted that Plaintiff had a restricted range of motion secondary to pain and his straight-leg raising was negative. ( Id.) He indicated that Plaintiff had failed to improve with conservative treatment and he discussed surgery with him. ( Id.) Dr. Martino also recommended that Plaintiff have a bone scan to determine if there was any movement at the L5-S1 disc level. ( Id.)

Plaintiff saw Dr. Martino for an office visit on April 27, 1999. (R. 212.) At that office visit, Dr. Martino noted that Plaintiff's bone scan, which had been performed on April 20, 1999, was within normal limits. (R. 212, 249.) Dr. Martino indicated, however, that Plaintiff's physical examination showed that he could not perform significantly increased activities due to his pain. (R. 212.) Dr. Martino recommended that Plaintiff undergo a transverse facet block procedure to improve his pain symptoms. ( Id.)

On May 6, 1999, Dr. Martino performed a transverse facet block procedure (at L5-S1). (R. 202.) After the procedure, Plaintiff continued to have about the same amount of pain, particularly when he stood or sat for prolonged periods of time. (R. 210-11.) Dr. Martino subsequently recommended that Plaintiff undergo anterior lumbar interbody fusion (at L5-S1) surgery. ( Id.)

Dr. Martino performed Plaintiff's anterior lumbar interbody fusion surgery on July 9, 1999. (R. 194.) Plaintiff was discharged from the hospital on July 14, 1999 and he was given a prescription for Loreet. ( Id.)

An interbody case fusion involves the use of a hollow threaded titanium or carbon fiber cylinder to fuse two vertebrae together. The diseased disc is removed and two interbody cages are placed in the opening where the diseased disc has been removed. The cages are then filled with bone graft and, subsequently, the bone grows through the holes in the cages fusing the vertebrae. See http://www.nlm.nih.gov/medlineplus/ency/presentations/100121_5.htm.

Lorcet is a narcotic pain medication prescribed to treat moderate to moderately severe pain. PDR Family Guide, at 732.

On August 3, 1999, Plaintiff saw Dr. Martino for a post-operative follow-up visit. (R. 209.) As of that date, Dr. Martino noted that Plaintiff was going reasonably well. ( Id.) Dr. Martino further indicated that Plaintiff had various aches and pains, but overall his back was better than it had been before the surgery. ( Id.)

Plaintiff saw Dr. Martino on September 7, 1999 for an office visit. (R. 208.) At this visit, Dr. Martino noted that Plaintiff was doing well, his pain had improved, and he was neurologically intact. ( Id.)

On October, 19, 1999, Dr. Martino examined Plaintiff. (R. 207.) At that time, Dr. Martino reported that Plaintiff was doing reasonably well after his surgery. ( Id.) He noted that Plaintiff still had some pain, but it had significantly improved. ( Id.) Dr. Martino indicated that Plaintiff should begin a work-hardening program and should switch medications from Darvocet to Ultram. ( Id.)

Darvocet is a narcotic pain medication prescribed to treat mild to moderate pain. PDR Family Guide, at 184.

Ultram is a narcotic pain medication prescribed to treat moderate to moderately severe pain. PDR Family Guide, at 716.

A radiologist report from November 19, 1999 indicated that Plaintiff's lumbar fusion alignment was normal and the remaining disc spaces were unremarkable except for some small anterior traction spurs in his mid and lower lumbar spine. (R. 242.)

The X-ray evaluation showed "two paired bone plugs . . . in the mid and anterior aspect of the L5-S1 disc space" and the "SI joints and sacral struts [were] unremarkable." (R. 242.)

On November 23, 1999, Plaintiff saw Dr. Martino and reported he continued to have some pain that was on and off. (R. 206.) Dr. Martino examined Plaintiff and found that he was neurologically intact and had negative mechanical signs. ( Id.) He determined that Plaintiff should not return to work until February of 2000. (R.221-22.)

Plaintiff saw Dr. Martino for another office visit on February 29, 2000. (R. 205.) Plaintiff reported that he was having some back pain and was taking Ultram to relieve the pain. ( Id.) Dr. Martino noted that Plaintiff was neurologically intact and was ambulating without difficulty. ( Id.) He further indicated that Plaintiff had good range of motion and had improved overall since his surgery. ( Id.) Dr. Martino determined that Plaintiff could return to work, but he would be limited to performing medium level work (which included some lifting and carrying restrictions, but no significant sitting and standing restrictions). (R. 205, 218-20.) Dr. Martino recommended that Plaintiff follow-up with his internist, Dr. Lee Battle, M.D. (R. 205.)

On March 21, 2000, Dr. Martino completed a work status report diagnosing Plaintiff with lumbar spondylosis (degenerative disease of the spine) and indicating that he could perform light (duty) work which was a permanent restriction. (R. 217.) As part of Plaintiff's permanent light duty restriction, Dr. Martino opined that he could bend forward from a sitting position about thirty-four to sixty-six percent of the time in an eight-hour workday and he could bend forward from a standing position about sixty-seven to one hundred percent of the time in an eight-hour workday. (R. 219.) Moreover, Dr. Martino noted that Plaintiff was working on completing a treatment program and he would be capable of improving his work capacity so that he could return to work after a period of physical conditioning. (R. 217.)

In May of 2000, treatment records indicate that Plaintiff was unable to work due to his back surgery and back pain and that his work as a laborer made his symptoms even worse. (R. 236.) In addition, treatment records since that time further reflect Plaintiff's continuing complaints of lower back pain as well as the types of medications he took to relieve his pain including Ultram and Celebrex (nonsteroidal anti-inflammatory medication). (R. 256-57, 296-97.)

Dr. Tammy Thaggert, M.D., performed a consultative examination of Plaintiff on June 2, 2001. (R. 261-64.) Plaintiff reported to Dr. Thaggert that he had chronic back pain that occurs both at rest and with movement, headaches that do not respond to medication, and dizziness. (R. 261.) Upon examination, Dr. Thaggert found that Plaintiff's range of motion was reduced in his back, hips, and knees. (R. 263, 265-66.) Specifically, with respect to his back, Plaintiff was unable to bend (flex) from his waist due to his severe pain, his back flexion was forty degrees out of a possible ninety degrees and his extension as well as his right lateral and left lateral bending and rotation were ten degrees out of a possible thirty degrees. (R. 263, 265.) Plaintiff's hip joints also had decreased abduction, flexion, and internal and external rotation. ( Id.) His knee joints had decreased flexion of one hundred degrees out of a possible one hundred and fifty degrees. (R. 263, 266.) Dr. Thaggert noted that Plaintiff's straight-leg raising was positive for pain at twenty degrees (out of a possible ninety degrees) in his lumbosacral spine. (R. 263.) Dr. Thaggert opined that Plaintiff should be limited to standing or walking about six hours in an eight-hour day, but he had no restrictions in sitting. ( Id.) She further indicated that Plaintiff should be limited to lifting and carrying up to twenty pounds occasionally and should avoid any bending, stooping, or crouching positions (to avoid lower back pain). (R. 263-64.)

Plaintiff saw Dr. Battle on June 25, 2001, at which time, he noted that Plaintiff's straight leg raising test was negative. (R. 297.)

On July 6, 2001, Dr. Russell W. Wallace, Jr., M.D., a state agency physician, reviewed Plaintiff's medical record and completed a Physical Residual Functional Capacity Assessment form. (R. 278-85.) Dr. Wallace opined that Plaintiff has the capacity to lift and/or carry fifty pounds occasionally and twenty-five pounds frequently. (R. 279.) He indicated that Plaintiff could stand, walk, and sit for a total of about six hours in an eight-hour workday and had unlimited pushing and pulling abilities. ( Id.) Dr. Wallace further noted that Plaintiff could frequently climb, balance, kneel, crouch and crawl as well as occasionally stoop. (R. 280.) He found Plaintiff's allegations regarding his limitations (i.e., his inability to move around a lot, twist, and put pressure on his back as well as his pain) partially credible because the medical evidence did not support such limitations. (R. 283.) Furthermore, Dr. Wallace opined that the medical evidence did not support a lifting restriction of twenty pounds (occasionally). (R. 284.)

Dr. Wallace noted that Plaintiff's back flexion was forty degrees (out of a possible ninety degrees). (R. 280.)

Dr. Robert Willingham, Jr., M.D. (orthopedic consultant), a state agency physician, reviewed Plaintiff's medical record and completed a Physical Residual Functional Capacity Assessment form on October 2, 2001. (R. 286-93.) Dr. Willingham opined that Plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently. (R. 287.) He noted that Plaintiff could stand, walk, and sit for a total of about six hours in an eight-hour workday and had unlimited pushing and pulling abilities. ( Id.) Dr. Willingham indicated that Plaintiff could occasionally climb, balance, stoop, kneel, crouch and crawl. (R. 288.) He found Plaintiff's allegations regarding his limitations credible and gave significant weight to the treating physician's opinions indicating that Plaintiff's activities should be restricted. (R. 291-92.)

In May of 2002, Plaintiff fell and further injured his back. (R. 300.)

Dr. Diana Jaime, M.D. (internist), performed a consultative examination of Plaintiff on August 15, 2002. (R. 300-02.) Upon examination, Dr. Jaime determined that Plaintiff had a limited range of motion in his back (e.g., his flexion was limited to thirty degrees out of a possible ninety degrees) and tender para-spinal muscles. (R. 302.) Dr. Jaime prescribed pain medication, including Vicodin, and ordered an X-ray evaluation of Plaintiff's thoracic and lumbar spines. (R. 298, 302.)

Vicodin is a narcotic pain medication prescribed to treat moderate to moderately severe pain. PDR Family Guide, at 732.

On August 19, 2002, Plaintiff underwent an X-ray evaluation of his thoracic and lumbar spines. (R. 298.) The results of Plaintiff's X-ray evaluation of his thoracic spine showed "some mild degenerative osteophytes projecting from the disc spaces in the lower thoracic region but otherwise [there were] no other abnormalities [i.e., no fractures, disc narrowing or malalignment] . . . seen." ( Id.) The results of Plaintiff's X-ray evaluation of his lumbar spine indicated that "[t]he disc spaces were normal down to the L-5 level" and "[a]t [the] L5-S1 [level] there is evidence of a bony fusion . . . and some clips . . . from [the] previous surgery." ( Id.) Moreover, with regard to Plaintiff's lumbar spine, the evaluation revealed that there was "some slight disc narrowing" at the L5-S1 level; however, "the rest of the lumbar spine showed no fractures, disc narrowing, . . . malalignment or any other abnormalities." ( Id.)

Dr. Jaime completed a physician's report for the Illinois Department of Human Services on August 20, 2002. (R. 303-06.) Dr. Jaime reported that Plaintiff exhibited back pain that radiated to his buttocks and had constant aching that worsened with walking and activities. (R. 304.) She noted that Plaintiff had significant limitations with regard to his range of motion in both his neck and back. ( Id.) Specifically, Dr. Jaime found that Plaintiff's back flexion was thirty degrees (out of a possible ninety degrees) and his flexion and rotation in his neck were less than fifty percent. ( Id.) Dr. Jaime opined that Plaintiff was limited to lifting no more than ten pounds at a time during an eight-hour day (five days a week) and had significant limitations in walking, bending, standing, stooping, sitting, turning, climbing, pushing, pulling and traveling (i.e. use of public transportation). (R. 306.) Moreover, Dr. Jaime noted that Plaintiff's X-ray evaluation indicated he has degenerative osteophytes in his lower thoracic region. (R. 304.)

Dr. Jaime indicated that Plaintiff had more than a fifty percent reduction in bending, stooping, turning, and climbing and had a twenty to fifty percent reduction in walking, standing, sitting, pushing, pulling, and traveling (i.e., use of public transportation). (R. 306.)

Plaintiff also received treatment at the Will County Community Health Center in August of 2002 for chronic back pain. (R. 307-08.) Plaintiff was prescribed Ultram and Celebrex for his pain. (R. 308.)

B. Post-Hearing Evidence

On September 19, 2003, Dr. B. Nulman, M.D. examined Plaintiff on a consultative basis. (Nulman Report, attached to Pl.'s Motion for Remand). At that time, Plaintiff reported that since his anterior lumbar interbody fusion (and bone graft) surgery, he had been having significant left leg and low back pain. (Nulman Report at 1.) He indicated that his pain was worse with repetitive activities and that prolonged standing and walking exacerbated his pain. ( Id.) Plaintiff reported that the only time he had relief from his pain was when he was lying down on his side. ( Id.) He stated he had difficulty falling asleep and slept about six to seven hours each day. ( Id.) Plaintiff indicated that he underwent physical therapy and six lumbar epidural steroid injections; however, these treatments did not provide him with any relief. ( Id.) He stated he was taking Vioxx (nonsteroidal anti-inflammatory medication), Celebrex, Ultram and ibuprofen (nonsteroidal anti-inflammatory medication) but these medications did not help him much. ( Id.)

In his consultative report, Dr. Nulman noted that a recent MRI of Plaintiff's spine showed an abnormal signal within the space at L5-S1 as well as chronic disc changes. (Nulman Report at 1.) There was no evidence of stenosis or any type of herniation in the other areas of his thoracic and lumbar spines. ( Id.)

Upon examination, Dr. Nulman noted mild myofascial tenderness in Plaintiff's lower back with the left side being more tender than the right side. (Nulman Report at 1.) Dr. Nulman observed that Plaintiff had increased paraspinal muscle tone at L4 through L5, but there were no obvious trigger points. ( Id.) Plaintiff's straight-leg raising on the left was positive at forty degrees (out of a possible ninety degrees) and, on the right, his contralateral straight-leg raising was also positive. ( Id.) He had a negative femoral stretch test and his Lasègue test was positive on the left. ( Id.) Dr. Nulman also noted that Plaintiff's pelvic rock and Patrick tests were negative and, moreover, he had no gross sensorimotor deficits. ( Id.)

Dr. Nulman diagnosed Plaintiff as having failed back syndrome which was likely related to his previous spine surgery. (Nulman Report at 1.) He determined that Plaintiff had developed scar tissue from his surgery that was irritating his left sciatic nerve at the L5-S1 nerve root. ( Id.) Dr. Nulman opined that Plaintiff might benefit from a low-dose tricyclic antidepressant and prescribed Elavil (twenty-five milligrams per day). ( Id.) He also prescribed 100 milligrams of Neurontin per day and indicated that if Plaintiff's pain was still significant he could slowly increase his dosage to 900 milligrams per day. ( Id.) Dr. Nulman noted that if Neurontin was not effective then Topamax could be substituted. ( Id.) He indicated that Plaintiff should continue with low-level physical therapy because lumbar epidural steroid injections and trigger point injections would not provide him with long-term pain relief. ( Id.) Dr. Nulman recommended that Plaintiff use a TENS unit on a trial basis to help provide some symptomatic relief. ( Id.) He concluded that Plaintiff would not be a candidate for additional surgery because of the high risk of complications and recurrence of pain given the significant number of adhesions that form following a spinal fusion. ( Id. at 1-2.)

Failed back surgery syndrome (also called FBSS, or failed back syndrome) is a misnomer since it is not actually a syndrome but rather a very generalized term often used to describe the condition of patients who have not had a successful result with spine surgery. There is no equivalent term for this in any other type of surgery. Edwards v. Barnhart, ___ F. Supp.2d ___, 2004 WL 1175784, at *6 n. 19 (N.D. Ala. May 24, 2004).

Elavil is medication typically prescribed to treat depression; however, as is the case herein, this medication is also prescribed to control chronic pain. PDR Family Guide, at 245; Nulman Report at 1.

Neurontin is medication typically prescribed to treat epilepsy; however, as is the case herein, this medication is also prescribed to control chronic pain. PDR Family Guide, at 451; Nulman Report at 1.

Topamax is medication typically prescribed to treat epilepsy; however, as is the case herein, this medication is also prescribed to control chronic pain. PDR Family Guide, at 692; Nulman Report at 1.

For individuals with chronic back pain, a type of electrical stimulation that uses a low current, called transcutancous electrical nerve stimulation (TENS) can be helpful in controlling pain. Robert Berkow et al., The Merck Manual of Medical Information-Home Edition (hereinafter " Merck Manual — Home Edition"), 37-38 (2d. ed. 2003). TENS may be applied several times a day for twenty minutes to several hours, depending on the severity of the pain. ( Id. at 38.) Most individuals tolerate the TENS therapy well, but its effectiveness varies greatly. ( Id.)

III. PLAINTIFF'S TESTIMONY

At the administrative hearing, Plaintiff testified that, after his automobile accident, he experienced pain in his lower back every day. (R. 47.) He described the pain as being mild to severe sharp pain that radiated from his lower back down to his legs and feet. (R. 48.) Plaintiff stated that, over time, his pain is becoming worse both in frequency and intensity. (R. 50.) He indicated that his pain was worse during the evenings and on cold days. (R. 49.) Plaintiff further testified that prescription pain medications as well as lying down and resting helped relief some of his pain. (R. 47-48.)

Plaintiff stated that standing was hard for him, his pain was aggravated by walking and his pain is severe when he moves around. (R. 48-49, 51.) He estimated that he could stand about a half an hour or an hour at a time. (R. 54.) Plaintiff indicated that he could walk about four or five blocks, but if he walked that distance he would experience fatigue in his legs. (R. 53.) He also stated that he had difficulty with stairs and could not climb ladders. (R. 53-54.)

Plaintiff testified that he had a hard time sitting in a certain position and he was able to sit in a straight chair for about an hour, but he had to change positions. (R. 48-49, 54-55.) He also indicated that he could not bend forward or twist from the waist because of his surgery and his physician told him to avoid bending or twisting too much. (R. 54.) Plaintiff further stated that he could lift about five pounds (i.e., he could lift a case of soda if it were on a table), (R. 55.)

Plaintiff indicated that he took several pain medications which included Ultram, Celebrex, ibuprofen, and hydrocodone. (R. 50.) Plaintiff testified that hydrocodone made him sleepy and the sleepiness from the medication lasted a couple of hours. (R. 50-51.)

Plaintiff stated that his pain interfered with his sleep and he only slept an average of five to six hours a night. (R. 63-64.) He also indicated he napped a couple of hours every day. (R. 64.)

Plaintiff testified he had headaches that occurred every two or three days that lasted for several hours. (R. 61.) He indicated that he took medication for the pain which provided him with relief. ( Id.)

Plaintiff stated he had left elbow pain which his physicians attributed to arthritis. (R. 60-61.) Moreover, Plaintiff indicated he had lost much of the pigment in his skin; therefore, he could not be in the sun for prolonged periods of time because he would blister. (R. 61-63.)

With regard to Plaintiff's daily activities, he stated that he did some household tasks which included washing dishes, vacuuming once a week, doing occasional laundry, making his bed, and taking care of his personal hygiene. (R. 56-57.) He, however, did not do any grocery shopping or yard work. (R. 56, 58.) Plaintiff testified that if he accompanied his brother to the store, he typically had to sit down while his brother looked around. (R.57-58.) Plaintiff also indicated he had a driver's license; however, he rarely drove. (R. 34-35.)

IV. THE ALJ'S FINDINGS AND DECISION HEREIN

The ALJ determined that Plaintiff had not engaged in any substantial gainful activity at any time since the alleged onset date of his disabling condition. (R. 19.)

The ALJ found that Plaintiff had a limited education and was an individual who was closely approaching advanced age because he was almost fifty years of age. (R. 19.)

The ALJ determined that the medical evidence established that Plaintiff suffers from a back impairment or disorder which significantly limits his ability to perform basic work activities; consequently, his impairment is severe. (R. 19.) The ALJ, however, determined that Plaintiff does not have an impairment or combination of impairments listed in, or medically equal to one listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, Regulations No. 4. ( Id.)

Because the ALJ found that Plaintiff's impairments did not meet or equal a listed impairment, the ALJ assessed Plaintiff's residual functional capacity (hereinafter "RFC") to determine what he could do despite his limitations. (R. 17-18.) The ALJ concluded that Plaintiff has the RFC to perform substantially all of the full range of unskilled light work with occasional bending. (R. 19.) The ALJ also found that Plaintiff was unable to perform his past relevant work and had no transferable skills from any of his past relevant work. ( Id.)

The ALJ determined that, in view of Plaintiff's age, education, work experience and RFC, Rules 202.11 and 202.16 of the Medical-Vocational Guidelines (the "grid") applied in this case. (R. 20.) 20 C.F.R. Pt. 404, Subpt. P, App. 2 §§ 202.11, 202.16 (2002). Therefore, using the grid as a framework for decision-making, the ALJ concluded that Plaintiff was not disabled. ( Id.)

The ALJ further concluded, without any elaboration, that "[Plaintiff's] allegations regarding his limitations are not fully substantiated by the record . . ." (R. 19.)

Accordingly, the ALJ determined that Plaintiff was not disabled under the terms of the Act. (R. 20.)

LEGAL STANDARDS

I. STANDARD OF REVIEW

Judicial review of the Commissioner's final decision is limited. The Act at 42 U.S.C. § 405(g) establishes that the Commissioner's findings as to any fact are conclusive if they are supported by substantial evidence. See also Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir. 1997). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Pearles, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Brewer, 103 F.3d at 1390. The court may not reevaluate the facts, reweigh the evidence, or substitute its own judgment for that of the Commissioner. See Brewer, 103 F.3d at 1390. Conclusions of law, however, are not entitled to deference. Therefore, if the Commissioner commits an error of law, reversal is required without regard to the volume of evidence in support of the factual findings. See Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997).

II. STATUTORY AND REGULATORY FRAMEWORK

To receive disability benefits, SSI and DIB claimants must be "disabled" as defined by the Act. See 42 U.S.C. § 423(a)(1)(D); 42 U.S.C. § 1382(a); Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993). An individual is "disabled" if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than [twelve] months." See 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). See also Jones v. Shalala, 10 F.3d 522, 523-24 (7th Cir. 1993). To satisfy this definition, an individual must have a severe impairment that renders him unable to do his previous work or any other substantial gainful activity that exists in the national economy. See 20 C.F.R. § 404.1505(a).

The Social Security regulations delineate a five-step process for determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. § 404.1520. The ALJ first considers whether the claimant is presently employed or "engaged in substantial gainful activity." 20 C.F.R. § 404.1520(b). If he is, the claimant is not disabled and the evaluation process is over; if he is not, the ALJ next addresses whether the claimant has a severe impairment or combination of impairments which "significantly limits [his] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). Third, the ALJ determines whether that severe impairment meets any of the impairments listed in the regulations. 20 C.F.R. Pt. 404, Subpt. P, App. 1. If it does, then the impairment is acknowledged by the Commissioner to be conclusively disabling. See Brewer, 103 F.3d at 1391.

If the impairment does not so limit the claimant's remaining capabilities, the fourth step is that the ALJ reviews the claimant's RFC and the physical and mental demands of his past work. RFC is a measure of what an individual can do despite the limitations imposed by his impairments. See 20 C.F.R. § 404.1545(a), 416.945(a). See also Social Security Ruling 96-8p (1996). If the claimant can perform his past relevant work, he will be found not disabled. See 20 C.F.R. § 404.1520(e).

For the fifth step, if the claimant shows that his impairment is so severe that he is unable to engage in his past relevant work, then the burden of proof shifts to the Commissioner to establish that the claimant — in light of his age, education, job experience and functional capacity to work — is capable of performing other work and that such work exists in the national economy. See 42 U.S.C. § 423(d)(2); 20 C.F.R. § 404.1520(f). See also Brewer, 103 F.3d at 1391.

ANALYSIS

Plaintiff seeks reversal or remand of the ALJ's decision finding that he is not disabled.

Upon review of the record and applying the applicable legal standard(s), the Court finds that an outright reversal is not warranted. Separately, as it relates to remand, Plaintiff alleges inter alia that: (1) the ALJ erred in failing to consider all of the evidence; (2) the evidence does not support the ALJ's decision that Plaintiff can perform light work with occasional bending; (3) the ALJ failed to articulate his credibility determination; and (4) new and material medical evidence; namely, the consultative report of Dr. B. Nulman, M.D. should be considered by the ALJ. (Pl.'s Mot. for Remand; Pl.'s Mem. at 11-15; Pl.'s Reply at 4-11.)

I. THE ALJ IMPROPERLY FAILED TO ADDRESS RELEVANT MEDICAL EVIDENCE IN DETERMINING THAT PLAINTIFF WAS CAPABLE OF PERFORMING UNSKILLED LIGHT WORK WITH OCCASIONAL BENDING.

Plaintiff argues that the ALJ erred in disregarding or failing to consider and explain significant medical evidence when determining that he could perform unskilled light work with occasional bending. (Pl.'s Mem. at 11-13, Pl.'s Reply at 4-10.) Specifically, Plaintiff avers inter alia that the ALJ disregarded and did not address significant portions of Dr. Thaggert's (consultative examiner) medical findings and never considered or addressed Dr. Jaime's (consultative examiner) medical report and assessment. (Def.'s Mem. at 12-13; Def's Reply at 5-9; R. 17-18.) Defendant, on the other hand, avers that Dr. Martino (treating surgeon/physician) opined that Plaintiff was capable of performing light work with bending up to two-thirds of a workday. (Def.'s Mem. at 7.) Defendant also contends that the ALJ relied on three out of four physicians; namely, Drs. Thaggert, Wallace (state reviewing physician), and Willingham (state reviewing physician) who concluded that Plaintiff could perform at least light work. ( Id.) Defendant further argues that the ALJ could reasonably decline to give significant weight to Dr. Jaime's opinion because she only examined Plaintiff on one occasion and her opinion was inconsistent with the ALJ's RFC and credibility findings. ( Id.)

"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities." 20 C.F.R. § 404.1567(b); 416.967(b). Social Security Ruling (hereinafter "SSR") 83-10 further provides that the full range of light work requires standing or walking, off and on, for a total of approximately six hours of an eight-hour workday when frequent lifting or carrying is involved. SSR 83-10, 1983 WL 31251, at *6 (S.S.A. 1983). Moreover, SSR 83-14 states that in order for an individual to perform light work, he must be able to stoop (defined as bending a the waist) for up to one-third of a work day. SSR 83-14, 1983 WL 31254, at *2 (S.S.A. 1983).

The Court initially finds that the ALJ erred in ignoring or failing to address significant medical evidence. Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001) ("[A]n ALJ may not ignore an entire line of evidence that is contrary to her findings, . . . rather she must `articulate at some minimal level [her] analysis of the evidence.'"); Golembiewski v. Barnhart, 322 F.3d 912, 917 (7th Cir. 2003) ("[A]lthough the ALJ need not discuss every piece of evidence in the record, . . . the ALJ may not ignore an entire line of evidence that is contrary to the ruling.") The ALJ, however, omitted mentioning or discussing significant medical evidence in his decision. For example, the ALJ failed to mention many of Dr. Thaggert's medical findings which included the fact that Plaintiff was unable to bend (flex) from his waist due to his severe pain, his back flexion was forty degrees out of a possible ninety degrees, and his back extension as well as his right lateral and left lateral bending and rotation were ten degrees out of a possible thirty degrees. (R. 263, 265.) She also noted that Plaintiff's hip joints had decreased abduction, flexion, and internal and external rotation. ( Id.) Dr. Thaggert furthered observed that Plaintiff's knee joints had decreased flexion of one hundred degrees out of a possible one hundred and fifty degrees and his straight-leg raising was positive for pain at twenty degrees out of a possible ninety degrees in his lumbosacral spine. (R. 263, 266.) Dr. Thaggert concluded that Plaintiff should avoid any bending, stooping, or crouching positions (to avoid lower back pain). (R. 264.)

The ALJ, in his decision, mentions Dr. Thaggert's medical determination that Plaintiff should avoid any bending, stooping, or crouching position, but in arriving at his decision the ALJ fails to articulate why he rejects this determination. (R. 17.)
It bears noting also that the ALJ erred in stating that Dr. Thaggert assessed Plaintiff as being capable of performing light work. (R. 17.) Dr. Thaggert never stated that. Rather, because Dr. Thaggert opined that Plaintiff should avoid any bending, stooping or crouching positions, it would implicitly and necessarily follow from this that Plaintiff would not be able to perform light work. See SSR 83-14 (for an individual to perform light work, he must be able to stoop (defined as bending a the waist) for up to one-third of a work day.) SSR 83-14, 1983 WL 31254, at *2 (S.S.A. 1983).

The Court further notes that the ALJ does not address or even mention Dr. Jaime's consultative report and assessment in his decision. (R. 18.) Dr. Jaime, who prepared a physician's report for the Illinois Department of Human Services, indicated that Plaintiff had significant limitations with regard to his range of motion in his neck and back. (R. 304.) Specifically, Dr. Jaime determined that Plaintiff's back flexion was thirty degrees out of a possible ninety degrees and his neck flexion and rotation were less than fifty percent. ( Id.) Dr. Jaime indicated that Plaintiff had significant limitations in walking, bending, standing, stooping, sitting, turning, climbing, pushing, pulling and traveling (i.e., use of public transportation). (R. 306.) Dr. Jaime therefore opined that Plaintiff had more than a fifty percent reduction in bending, stooping, turning, and climbing and had a twenty to fifty percent reduction in walking, standing, sitting, pushing, pulling, and traveling. ( Id.) Even though the ALJ mentions the results of Dr. Jaime's X-ray evaluation of Plaintiff, he never addresses or mentions the aforementioned significant physical limitations she identified.

Thus, while Defendant contends that ALJ could reasonably decline to give significant weight to Dr. Jaime's opinion because she only examined Plaintiff on one occasion and her opinion was inconsistent with the ALJ's RFC and credibility findings, the Court finds Defendant's argument unavailing because the ALJ is required to consider a consultative examiner's opinion and explain the weight given to such an opinion in his decision. Specifically, 20 C.F.R. § 404.1527(f)(2)(i) and (ii); 416.927(f)(2)(i) and (ii) provides:

(2) Administrative law judges are responsible for reviewing the evidence and making findings of fact and conclusions of law. They will consider opinions of State agency medical or psychological consultants, other program physicians and psychologists, and medical experts as follows:
(i) Administrative law judges are not bound by any findings made by State agency medical or psychological consultants, or other program physicians or psychologists. However, State agency medical and psychological consultants and other program physicians and psychologists are highly qualified physicians and psychologists who are also experts in Social Security disability evaluation. Therefore, administrative law judges must consider findings of State agency medical and psychological consultants or other program physicians or psychologists as opinion evidence, except for the ultimate determination about whether you are disabled. See § 416.912(b)(6). (emphasis added.)
(ii) When an administrative law judge considers findings of a State agency medical or psychological consultant or other program physician or psychologist, the administrative law judge will evaluate the findings using relevant factors in paragraphs (a) through (e) of this section, such as the physician's or psychologist's medical speciality and expertise in our rules, the supporting evidence in the case record, supporting explanations provided by the physician or psychologist, and any other factors relevant to the weighing of the opinions. Unless the treating source's opinion is given controlling weight, the administrative law judge must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant or other program physician or psychologist, as the administrative law judge must do for any opinions from treating sources, nontreating sources, and other nonexamining sources who do not work for us. (emphasis added.)
See also SSR 96-6p, 1996 WL 374180, at *1 (S.S.A. July 2, 1996) ("Administrative law judges and the Appeals Council may not ignore [State agency medical and psychological consultants and other program physicians and psychologists] opinions and must explain the weight given to these opinions in their decisions.") As will be discussed, there is no indication in the ALJ's decision that the ALJ gave controlling weight to the treating physician's opinion. Accordingly, the ALJ erred in failing to fully consider and explain the weight he gave to Dr. Jaime's medical findings.

It bears noting, too, that while Defendant assumes that the ALJ gave controlling weight to Dr. Martino's opinion, the ALJ actually failed to articulate the weight he gave to Dr. Martino's opinion. In fact, the ALJ never explained the weight he gave to any of the six physician's opinions who made medical assessments in this case. For instance, in the decision, the ALJ states: "Based upon the assessments of [Plaintiff's] treating physicians and consultative examiner, Dr. Thaggert, and State Agency physician reviewers . . ., [the] claimant retains the residual functional capacity to perform unskilled light work with occasional bending." (R. 18.) Therefore, the ALJ erred because, as noted supra, he was required to explain the weight he gave to Drs. Thaggert, Jaime, Wallace and Willingham's opinions. See 20 C.F.R. § 404.1527(f)(2)(ii); 416.927(f)(2)(ii). ("Unless the treating source's opinion is given controlling weight, the administrative law judge must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant or other program physician or psychologist, as the administrative law judge must do for any opinions from treating sources, nontreating sources, and other nonexamining sources who do not work for us.") Moreover, given the significant bending limitations and other physical limitations found by Drs. Thaggert and Jaime, as well as the length of time that has passed since Dr. Martino treated Plaintiff and assessed him as being able to perform light work, it is possible upon remand that Drs. Thaggert's and Jaime's opinion may be entitled to greater weight than that of Dr. Martino. See e.g., SSR 96-6p ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.") (emphasis added.)

The Court notes that the ALJ's decision does not contain a discussion of Plaintiff's ability to bend. For example, Drs. Thaggert and Jaime essentially found that Plaintiff had a limited ability to bend whereas Drs. Wallace and Willingham opined that he could bend occasionally. More notably, the ALJ never mentions Dr. Martino's bending restrictions. (R. 219.)
The case of Golembiewski v. Barnhart, 322 F.3d 912 (7th Cir. 2003), is instructive on this point. In Golembiewski, the Seventh Circuit inter alia remanded the cause for further consideration because:

[T]he ALJ's decision contains no discussion of Golembiewski's limited ability to bend on account of his bad back. After an examination in August 1997, Dr. Schroeder reported that Golembiewski could rotate his neck only 60 degrees and that motion in his lower back was reduced to 40 degrees of flexion, 15 degrees of extension, and 10 degrees of tilting. In contrast, Dr. Davis opined in his July 1999 report for the State of Indiana that Golembiewski could "stoop occasionally," meaning that he could bend at the waist for up to a third of an eight-hour day. See SSR 83-14. The reports of Dr. Schroeder and Dr. Davis thus establish potentially conflicting assessments of Golembiewski's bending ability. Yet despite this obligation to resolve such conflicts, e.g., Scott, 297 F.3d at 596; see also Godbey v. Apfel, 238 F.3d 803, 808 (7th Cir. 2000), the ALJ did not address either doctor's assessment-a significant omission since Golembiewski would have to bend at the waist occasionally in order to perform light work, SSR 83-10, see Lauer v. Apfel, 169 F.3d 489, 492 (7th Cir. 1999). 322 F.3d at 917.

Accordingly, the ALJ erred in not resolving the potential conflict between Drs. Thaggert's and Jaime's (consultative examiners) and Drs. Wallace's and Willingham's (state agency reviewing physicians) medical assessments regarding Plaintiff's ability to bend. Moreover, it bears noting that Drs. Wallace and Willingham did not examine Plaintiff; rather, they merely reviewed Plaintiff's medical record. See e.g., 20 C.F.R. § 404.1527(d)(1); 416.927(d)(1) (more weight is given to the opinion of a physician who has examined the claimant than one who did not examine the claimant); Allen v. Weinberger, 552 F.2d 781, 786 (7th Cir. 1977) (regarding the conclusions of the physicians who merely reviewed the plaintiff's medical file and performed no examinations, the court noted, ". . . the weight to be attached to the reports must be considered in light of the fact that neither physician examined the plaintiff . . . Their reports, without personal examination of the claimant, deserve little weight in the overall evaluation of disability. The (medical) advisers' assessment of what other doctors find is hardly a basis for competent evaluation.")

In view of the foregoing, as the ALJ failed to address or ignored relevant medical evidence on the question of Plaintiff's ability to perform light work, a remand is warranted. See e.g., Golembiewski, 322 F.3d at 917 ("A remand is required here because the ALJ improperly ignored . . . lines of evidence.")

II. THE ALJ'S CREDIBILITY FINDING AS TO PLAINTIFF IS INSUFFICIENT AS A MATTER OF LAW.

Plaintiff avers that the ALJ disregarded his testimony with respect to his symptoms of pain, his drowsiness which was a side-effect caused by his medication (i.e., hydrocodone), and his limitations regarding the length of time he could sit, stand and walk. (Pl.'s Mem. at 11.) Plaintiff further asserts that the ALJ's credibility determination is insufficient as a matter of law because he did not articulate his basis for the determination. ( Id. at 11-12.) Accordingly, Plaintiff contends that the ALJ failed to follow the mandates of Social Security Ruling (hereinafter "SSR") 96-7p and regulatory requirements in assessing Plaintiff's credibility. ( Id. at 12.)

Defendant, on the other hand, does not specifically respond to Plaintiff's credibility argument, but instead appears to address Plaintiff's testimony and credibility with respect to the drowsiness he alleges he experiences from his medication. (Def.'s Mem. at 9-10.) Defendant thus initially argues that Plaintiff's testimony regarding his drowsiness is less credible because he did not complain about this side-effect of his medication to any of his treating physicians. ( Id. at 9.) Defendant further avers that even if Plaintiff experiences some drowsiness or sleepiness, the fact that he experiences drowsiness or sleepiness would not be inconsistent with the performance of unskilled jobs. ( Id.) For example, Defendant, in its memorandum, points to the fact that "[u]nskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time" ( 20 C.F.R. § 404.1568(a)) and unskilled work generally does not involve a "high degree of interaction with others." Zalewski v. Halter, 760 F.2d 160, 165 n. 5 (7th Cir. 1985) (citation omitted); see also 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.00(g) (recognizing that "the primary work functions in the bulk of unskilled work relate to working with things (rather than with data or people)"). Accordingly, Defendant contends that the ALJ adequately accounted for Plaintiff's drowsiness side-effect when finding that he could perform unskilled light work. (Def.'s Mem. at 9-10.)

An ALJ's credibility determination will not be overturned by a court unless it is "patently wrong." Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). It is well-established, however, and it need be emphasized that the ALJ's written decision "must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." Brindisi v. Barnhart, 315 F.3d 783, 787 (7th Cir. 2003) ( quoting SSR 96-7p, 1996 WL 374186, at *4 (S.S.A. July 2, 1996)). See also Steele v. Barnhart, 290 F.3d 936, 941-42 (7th Cir. 2002); Golembiewski v. Barnhart, 322 F.3d 912, 915 (7th Cir. 2003). In this regard, it is not sufficient for the adjudicator to make a single, conclusory statement that "the individual's allegations have been considered" or that "the allegations are (or are not credible)." Brindisi, 315 F.3d at 787 ( quoting SSR 96-7p, 1996 WL 374186, at *4). Thus, without an adequate explanation, neither the claimant nor subsequent reviewers will have a fair sense of how the claimant's testimony is weighed. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001).

The Court finds that the ALJ's credibility determination is insufficient as a matter of law because he did not articulate the basis for his determination. Rather, the ALJ disregarded or discounted Plaintiff's allegations regarding his physical limitations, with a single conclusory statement, as follows: "Claimant's allegations regarding his limitations are not fully substantiated by the record in this case." (R. 19.) The ALJ thus improperly failed to give specific reasons for his credibility determination beyond simply stating that Plaintiff's allegations are not credible. This is precisely the type of conclusory credibility determination that is prohibited by SSR 96-7p. See e.g., Brindisi, 315 F.3d at 787; Steele, 290 F.3d at 941-42; Golembiewski, 322 F.3d at 915. Specifically, the ALJ failed to explain the weight given to Plaintiff's statements and, moreover, he does not support his determination with any evidence in the record. The ALJ's credibility determination also failed to apply the factors for evaluating symptoms set forth in SSR 96-7p, such as the degree to which Plaintiff's stated limitations were consistent with the medical evidence or the ALJ's own observations. Steele, 290 F.3d at 942; Zurawski, 245 F.3d at 887. Therefore, the ALJ's credibility determination is legally and wholly insufficient because it lacks any type of explanation, or specific reasons, that would allow the Court to understand or discern the weight given to Plaintiff's statements or the reasons for that credibility determination.

At the administrative hearing, Plaintiff provided extensive testimony regarding his severe pain and physical limitations.

SSR 96-7p provides that when an adjudicator is assessing the credibility of a claimant's statements, he must consider, in addition to the objective medical evidence, the following factors:
1. The individual's daily activities;

2. The location, duration, frequency, and intensity of the individual's pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for [fifteen] or [twenty] minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. SSR 96-7p, 1996 WL 374186, at *3.

SSR 96-7p also provides that an ALJ carefully consider "the intensity, persistence, and functionally limiting effects of the [claimant's] symptoms," when evaluating the credibility of the claimant's complaints of disabling pain. SSR 96-7p, 1996 WL 374186, at *1. In his decision, however, the ALJ's only reference to Plaintiff's pain is contained in the following essentially conclusory statement: "In making this [RFC] assessment, I consider all symptoms, including pain, and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence . . ." (R. 17.)

It also bears noting, respectfully, that Defendant's counsel is attempting to inappropriately provide the Court with a post hoc rationalization for the ALJ's credibility determination by asserting that Plaintiff's testimony regarding the alleged drowsiness he experiences from taking his medication is not credible because he did not report this side-effect to his treating physicians and, moreover, the ALJ appropriately considered this medication side-effect when determining that Plaintiff could perform unskilled light work. The Court, however, finds Defendant's arguments unmeritorious because the ALJ never even mentions, let alone discusses or relies on Plaintiff's statements regarding his alleged medication side-effect in either the body or findings sections of his decision. Accordingly, Defendant's arguments cannot be considered herein. See e.g., Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir. 2003) ("[G]eneral principles of administrative law preclude the Commissioner's lawyers from advancing grounds in support of the agency's decision that were not given by the ALJ.") See also Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002) ("[R]egardless of whether there is enough evidence in the record to support the ALJ's decision, principles of administrative law require the ALJ to rationally articulate the grounds for [his] decision and [we] confine our review to the reasons supplied by the ALJ.").

Therefore, for the aforesaid reasons, the Court finds that the ALJ erred because he provided no explanation for his credibility determination. Accordingly, a remand on this issue is warranted.

III. DR. NULMAN'S CONSULTATIVE MEDICAL REPORT CONSTITUTES ADDITIONAL MATERIAL EVIDENCE.

Plaintiff avers that the cause should be remanded for consideration of additional material medical evidence; namely, the consultative report of Dr. B. Nulman, M.D. (Pl.'s Mot. for Remand; Pl'.s Mem. at 13-15; Pl.'s Reply at 10-11.) Specifically, Plaintiff argues that there is a reasonable possibility that the ALJ would have reached a different conclusion regarding his disability claim(s) if Dr. Nulman's consultative report had been available to the ALJ at the administrative hearing. (Pl.'s Mem. at 14-15; Pl.'s Reply at 10-11.) Defendant, on the other hand, argues that a remand for consideration of Dr. Nulman's report is not warranted because his report would not have changed the ALJ's finding that Plaintiff is not disabled. (Def.'s Mem. at 10.) Thus, Dr. Nulman's report which indicates that Plaintiff has failed back syndrome and would need continued conservative treatment was medical information that was already in the record before the ALJ. ( Id.)

Dr. Nulman examined Plaintiff (at Silver Cross Hospital in Joliet, Illinois) on a consultative basis at the request of treating physicians at the Will-Grundy Medical Clinic.

Pursuant to sentence six of 42 U.S.C. § 405(g), a court may remand a case upon a "showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g); Sample v. Shalala, 999 F.2d 1138, 1144 (7th Cir. 1993). Evidence is "new" if it is "not in existence or available to the claimant at the time of the administrative proceeding." Sample, 999 F.2d at 1144 ( quoting Sullivan v. Finkelstein, 496 U.S. 617, 626, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990)). It has been expressed that "materiality" is established when there is a "`reasonable probability' that the Commissioner would have reached a different conclusion had the [new] evidence been considered." Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir. 1997). The Seventh Circuit has also ruled that evidence is material if there is a "reasonable possibility" that it would have changed the outcome of the ALJ's determination. Sears v. Bowen, 840 F.3d 394, 400 (7th Cir. 1993). The Supreme Court has expressed that a sentence six remand of § 405(g) is appropriate when the subject evidence "might have changed the outcome of that proceeding." Sullivan v. Finkelstein, 496 U.S. 617, 626, 110 L.Ed.2d 563, 110 S.Ct. 2658 (1990). Moreover, a claimant has meet the "good cause" requirement when he demonstrates a sufficient reason for failing to incorporate the evidence into the record during the administrative proceeding. Sample, 999 F.2d at 1144. Thus, in order to prevail on this issue, a plaintiff must "meet the requirements of newness, materiality, and good cause." Id.

Initially, the Court notes that the parties do not dispute that Dr. Nulman's consultative report constitutes "new" evidence or that the "good cause" requirement have been met herein. Next, with regard to the issue of materiality, the Court finds that Dr. Nulman's report is material because it calls into question Plaintiff's recovery after his spinal surgery and his post-surgery ability to perform work.

First, it bears noting that, in his September 19, 2003 consultative report, Dr. Nulman diagnosed Plaintiff as having failed back syndrome which was the result of unsuccessful spine surgery (on July 9, 1999) and, moreover, he indicated that Plaintiff had developed sear tissue from his surgery which was irritating his left sciatic nerve at the L5-S1 nerve root. (Nulman Report at 1.) At that time, Dr. Nulman's physical examination of Plaintiff showed inter alia myofascial tenderness in his lower back (with his left side being more tender than his right side), increased paraspinal muscle tone at L4 through L5, straight leg raising on the left was positive at forty degrees (out of a possible ninety degrees), contralateral straight leg raising on the right was positive as well as other abnormal findings. ( Id.) Dr. Nulman noted Plaintiff's continuing pain symptoms and prescribed Elavil and Neurontin (and indicated Topamax could be used) for his pain and noted that a TENS unit treatment should be used on a trial basis to provide Plaintiff with some symptomatic relief. ( Id.) Thus, in assessing Plaintiff's condition, Dr. Nulman recommended that Plaintiff continue with low-level physical therapy because other types of treatment including lumbar epidural steroid injections, trigger point injections, and additional surgery would not benefit him. ( Id. at 1-2.) Moreover, Dr. Nulman indicated that an MRI of Plaintiff's spine indicated an abnormal signal at L5-S1 as well as chronic disc changes. ( Id. at 1.)

For individuals with chronic back pain, a type of electrical stimulation that uses a low current, called transcutaneous electrical nerve stimulation (TENS) can be helpful in controlling pain. Merck Manual — Home Edition, at 37-38. Most individuals tolerate the TENS therapy well, but its effectiveness varies greatly. ( Id. at 38.)

In his decision, the ALJ relies on Dr. Martino's (treating surgeon/physician) opinion as well as those of the state agency reviewing physicians (Drs. Wallace and Willingham) and one consultative examiners (Dr. Thaggert) in assessing Plaintiff's RFC and ultimately determining that he could perform unskilled light work (with occasional bending). (R. 17-18.) For example, the ALJ relies on the fact that in February of 2000, Dr. Martino indicated that Plaintiff was much better overall than before his surgery, had good range of motion, was neurologically intact, and was ambulating without difficulty. (R. 17, 205.) Moreover, the ALJ relied on the fact that, in March of 2000, Dr. Martino completed a work status report noting that Plaintiff could performing light (duty) work; however, he was permanently restricted to this level of work (R. 17, 205, 217.) The ALJ also based his decision that Plaintiff could perform light work on Dr. Thaggert's opinion that Plaintiff was capable of performing light work (R. 17) and the state agency reviewing physicians who reviewed Plaintiff's medical file and opined that Plaintiff could perform at least light work. (R. 18, 278-93; Def.'s Mem. at 7.)

The Court finds that Dr. Nulman's September 19, 2003 consultative report contains material evidence under the materiality standard of 42 U.S.C. § 405(g). See Willis v. Apfel, 116 F. Supp.2d 971, 976 (N.D. Ill. 2000). Specifically, Dr. Nulman's assessment, which was performed more than four years after Plaintiff's surgery (and more than three year and one-half years after Dr. Martino, the only physician who treated Plaintiff, opined that he could perform light work), indicates that Plaintiff has failed back syndrome (an unsuccessful surgical result), has specific functional limitations (e.g., straight leg raising on the left which is positive at forty degrees), should take various medications (e.g., Elavil and Neurontin) to control his severe pain, use a TENS unit on a trial basis to alleviate his pain symptoms and has relatively few treatment options available to him (e.g., lumbar epidural steroid injections, trigger point injections and additional surgery would not benefit him) other than low-level physical therapy (which in the past has proven to be ineffective). (Nulman Report at 1-2.) Accordingly, because inter alia Dr. Nulman's report casts doubt on the degree to which Plaintiff recovered after his surgery and on his ability to perform post-surgery work, Dr. Nulman's report constitutes material evidence which should be considered by the ALJ.

It also bears noting that, as asserted by Defendant, Dr. Nulman's consultative report does not provide a functional assessment of Plaintiff's physical condition. (Def.'s Mem. at 10.) Specifically, 20 C.F.R. § 404.1512(e)(1); 416.912(e)(1) provide, in pertinent part:

We will first recontact your treating physician or psychologist or other medical source to determine whether the additional information we need is readily available. We will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. § 404.1512(e)(1); 416.912(c)(1). (emphasis added).

Moreover, if the relevant information cannot be obtained from Dr. Nulman, the ALJ shall follow the mandate established in 20 C.F.R. § 404.1512(f); 416.912(f) in determining Plaintiff's ability to perform work. As specified in 20 C.F.R. § 404.1512(f); 416.912(f), if ". . . we are unable to seek clarification from your medical source, we will ask you to attend one or more consultative examinations at our expense." 20 C.F.R. § 404.1512(f); 416.912(f).

The ALJ is therefore directed to contact Dr. Nulman to obtain any additional information needed to assess Plaintiff's functional capacity and/or his ability to perform work activity.

In light of the foregoing, a remand for consideration of Dr. Nulman's consultative report and related information is warranted.

CONCLUSION

On remand, the ALJ should also obtain testimony from a Vocational Expert. See e.g., Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) ("where a nonexertional limitation might substantially reduce a range of work an individual can perform, the use of the grids would be inappropriate and the ALJ must consult a vocational expert.") The ALJ's use of the grid rules was inappropriate, where, as here, the clamant's nonexertional impairments are so severe as to limit the range of work he can perform. Allen v. Sullivan, 977 F.2d 385, 389 (7th Cir. 1992).
Finally, in view of the Court's ruling herein, it is deemed unnecessary to consider any other of Plaintiff's and Defendant's other arguments raised herein.

Accordingly, the Court recommends that Plaintiff's motions for summary judgment and remand be granted insofar as they request a remand and recommends that Defendant's motion for summary judgment be denied. Accordingly, it is recommended that the cause be remanded, pursuant to sentences four and six of 42 U.S.C. § 405, to the Commissioner for further proceedings consistent with this opinion.


Summaries of

Lucio v. Barnhart

United States District Court, N.D. Illinois, Eastern Division
Jun 22, 2004
Case No. 03 C 7078 (N.D. Ill. Jun. 22, 2004)
Case details for

Lucio v. Barnhart

Case Details

Full title:RAFAEL LUCIO, Plaintiff, v. JO ANNE B. BARNHART, Commissioner of the…

Court:United States District Court, N.D. Illinois, Eastern Division

Date published: Jun 22, 2004

Citations

Case No. 03 C 7078 (N.D. Ill. Jun. 22, 2004)

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