Case 3:16-cv-00425-JPG-CJP Document 33 Filed 07/31/17 Page 1 of 14 Page ID #1175
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ILLINOIS
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`THOMAS E. CAMPBELL,
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`vs.
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`NANCY A. BERRYHILL, Acting
`Commissioner of Social Security,
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`Civil No. 16-cv-425-JPG-CJP
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`Plaintiff,
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`Defendant.1
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`MEMORANDUM and ORDER
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`In accordance with 42 U.S.C. § 405(g), plaintiff Thomas E. Campbell, represented by
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`counsel, seeks review of the final decision of the Commissioner of Social Security denying his
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`application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI)
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`benefits pursuant to 42 U.S.C. § 423.
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`Procedural History
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`Plaintiff applied for disability benefits in November 2012, alleging disability beginning on
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`November 2, 2011. After holding an evidentiary hearing, ALJ Christopher Hunt denied the
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`application in a decision dated November 21, 2014. (Tr. 22-37). The Appeals Council denied
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`plaintiff’s request for review, and the ALJ’s decision became the final agency decision subject to
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`judicial review. (Tr. 1).
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`1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. See, Casey v. Berryhill, 853 F.3d 322 (7th
`Cir. 2017). She is automatically substituted as defendant in this case. See Fed. R. Civ. P. 25(d); 42 U.S.C. §405(g).
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`Case 3:16-cv-00425-JPG-CJP Document 33 Filed 07/31/17 Page 2 of 14 Page ID #1176
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`court.
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`Plaintiff has exhausted his administrative remedies and has filed a timely complaint in this
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`Issues Raised by Plaintiff
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`Plaintiff raises the following issues:
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`1.
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`2.
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`The ALJ failed to consider whether he was entitled to a closed period of disability.
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`The credibility determination was erroneous because the ALJ did not consider the
`interrelationship between plaintiff’s pain and his anxiety.
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`Applicable Legal Standards
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`To qualify for DIB or SSI, a claimant must be disabled within the meaning of the
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`applicable statutes.2 For these purposes, “disabled” means the “inability to engage in any
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`substantial gainful activity by reason of any medically determinable physical or mental
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`impairment which can be expected to result in death or which has lasted or can be expected to last
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`for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A) and
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`1382c(a)(3)(A). A “physical or mental impairment” is an impairment resulting from anatomical,
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`physiological, or psychological abnormalities which are demonstrable by medically acceptable
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`clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3) and 1382c(a)(3)(C).
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`2 The statutes and regulations pertaining to Disability Insurance Benefits (DIB) are found at 42 U.S.C. § 423, et seq.,
`and 20 C.F.R. pt. 404. The statutes and regulations pertaining to SSI are found at 42 U.S.C. §§ 1382 and 1382c, et
`seq., and 20 C.F.R. pt. 416. As is relevant to this case, the DIB and SSI statutes are identical. Furthermore, 20
`C.F.R. § 416.925 detailing medical considerations relevant to an SSI claim, relies on 20 C.F.R. Pt. 404, Subpt. P, the
`DIB regulations. Most citations herein are to the DIB regulations out of convenience.
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`Case 3:16-cv-00425-JPG-CJP Document 33 Filed 07/31/17 Page 3 of 14 Page ID #1177
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`“Substantial gainful activity” is work activity that involves doing significant physical or mental
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`activities, and that is done for pay or profit. 20 C.F.R. §§ 404.1572.
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`Social Security regulations set forth a sequential five-step inquiry to determine whether a
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`claimant is disabled. The Seventh Circuit Court of Appeals has explained this process as follows:
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`The first step considers whether the applicant is engaging in substantial gainful
`activity. The second step evaluates whether an alleged physical or mental
`impairment is severe, medically determinable, and meets a durational requirement.
`The third step compares the impairment to a list of impairments that are considered
`conclusively disabling. If the impairment meets or equals one of the listed
`impairments, then the applicant is considered disabled; if the impairment does not
`meet or equal a listed impairment, then the evaluation continues. The fourth step
`assesses an applicant's residual functional capacity (RFC) and ability to engage in
`past relevant work. If an applicant can engage in past relevant work, he is not
`disabled. The fifth step assesses the applicant's RFC, as well as his age, education,
`and work experience to determine whether the applicant can engage in other work.
`If the applicant can engage in other work, he is not disabled.
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`Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
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`Stated another way, it must be determined: (1) whether the claimant is presently
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`unemployed; (2) whether the claimant has an impairment or combination of impairments that is
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`serious; (3) whether the impairments meet or equal one of the listed impairments acknowledged to
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`be conclusively disabling; (4) whether the claimant can perform past relevant work; and (5)
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`whether the claimant is capable of performing any work within the economy, given his or her age,
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`education and work experience. 20 C.F.R. §§ 404.1520; Simila v. Astrue, 573 F.3d 503, 512-513
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`(7th Cir. 2009); Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir. 1992).
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`Case 3:16-cv-00425-JPG-CJP Document 33 Filed 07/31/17 Page 4 of 14 Page ID #1178
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`This Court reviews the Commissioner’s decision to ensure that the decision is supported by
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`substantial evidence and that no mistakes of law were made. It is important to understand that the
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`scope of judicial review is limited. “The findings of the Commissioner of Social Security as to
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`any fact, if supported by substantial evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus,
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`this Court must determine not whether plaintiff was, in fact, disabled, but whether the ALJ’s
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`findings were supported by substantial evidence and whether any errors of law were made. See,
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`Books v. Chater, 91 F.3d 972, 977-78 (7th Cir. 1996) (citing Diaz v. Chater, 55 F.3d 300, 306 (7th
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`Cir. 1995)). This Court uses the Supreme Court’s definition of substantial evidence, i.e., “such
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`relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
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`Richardson v. Perales, 402 U.S. 389, 401 (1971).
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`In reviewing for “substantial evidence,” the entire administrative record is taken into
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`consideration, but this Court does not reweigh evidence, resolve conflicts, decide questions of
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`credibility, or substitute its own judgment for that of the ALJ. Brewer v. Chater, 103 F.3d 1384,
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`1390 (7th Cir. 1997). However, while judicial review is deferential, it is not abject; this Court
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`does not act as a rubber stamp for the Commissioner. See, Parker v. Astrue, 597 F.3d 920, 921
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`(7th Cir. 2010), and cases cited therein.
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`Case 3:16-cv-00425-JPG-CJP Document 33 Filed 07/31/17 Page 5 of 14 Page ID #1179
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`The Decision of the ALJ
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`ALJ Hunt followed the five-step analytical framework described above. He determined
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`that Mr. Campbell had not worked at the level of substantial gainful activity since the alleged onset
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`date and that he was insured for DIB through March 31, 2014.3
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`The ALJ found that plaintiff had severe impairments of status-post two surgeries to the
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`lumbosacral spine, left hip cyst, and anxiety. He found that these impairments do not meet or
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`equal a listed impairment.
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`ALJ Hunt concluded that plaintiff had the residual functional capacity to perform work at
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`the sedentary exertional level, limited to occasional climbing of ramps and stairs; no climbing of
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`ropes, ladders and scaffolding; occasional balancing, stooping, kneeling, crouching; no crawling;
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`and no concentrated exposure to environmental irritants, temperature extremes or poor ventilation.
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`He should be allowed to stand at the work station for a few minutes every hour without leaving the
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`work station and while remaining on tasks. His mental limitations restricted him to simple,
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`routine and repetitive tasks.
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`Based on the testimony of a vocational expert (VE), the ALJ determined that plaintiff could
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`not do his past work, but he could perform other jobs which exist in significant numbers in the
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`national and local economies, and, therefore, he was not disabled.
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`3 The date last insured is relevant only to the claim for DIB.
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`Case 3:16-cv-00425-JPG-CJP Document 33 Filed 07/31/17 Page 6 of 14 Page ID #1180
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`The Evidentiary Record
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`The Court has reviewed and considered the entire evidentiary record in formulating this
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`Memorandum and Order. The following summary of the record is directed to the points raised by
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`plaintiff.
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`1.
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`Agency Forms.
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`Plaintiff was born in February 1972 and was 39 years old on the alleged date of onset. (Tr.
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`261). He had worked as a laborer in construction and masonry restoration. (Tr. 291).
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`In 2013, plaintiff was trying to work on light duty for Precision Industrial. He took pain
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`medication to make it through the day. He had anxiety attacks. (Tr. 313-319). The agency
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`considered this to be an “unsuccessful work attempt.” (Tr. 336).
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`2.
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`Evidentiary Hearing.
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`Plaintiff was represented by counsel at the evidentiary hearing in October 2014. (Tr. 47).
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`Plaintiff had three children, ages 10, 8 and 5. His wife worked as an LPN. (Tr. 53). He
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`testified that he had back pain beginning in 1995. (Tr. 50). He had a heart attack on the alleged
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`date of onset, November 2, 2011. He had stents placed. He has also been treated for low back
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`pain, anxiety and high blood pressure. He also had pain in his left hip and groin. (Tr. 54-56).
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`He took Alprazolam (Xanax) for anxiety three times a day, prescribed by his primary care
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`physician. The ALJ sked him how anxiety kept him from working. He replied, “I don’t know,
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`your honor, if it’s the anxiety or the mixture of the pain. I can’t pinpoint it.” (Tr. 65-66).
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`Case 3:16-cv-00425-JPG-CJP Document 33 Filed 07/31/17 Page 7 of 14 Page ID #1181
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`A vocational expert (VE) also testified. The ALJ asked the VE to assume a hypothetical
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`question which corresponded to the RFC assessment. The VE testified that this hypothetical
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`person could not do plaintiff’s past work, but he could do sedentary jobs which exist in significant
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`numbers, such as charge account clerk, table worker, and document preparer. (Tr. 70-72).
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`3.
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`Medical Records.
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`Plaintiff was hospitalized following a heart attack on November 2, 2011. He was
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`diagnosed with coronary artery disease. He underwent cardiac catheterization and placement of a
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`stent. (Tr. 534-537). A second stent was placed on December 2, 2011. (Tr. 763). He
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`requested and was prescribed Xanax for anxiety at that time. (Tr. 785). In April 2012, his
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`cardiologist, Dr. Laura Gruen, noted that he was doing well and had no anginal symptoms. His
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`hypertension was adequately controlled. (Tr. 776-777).
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`On October 12, 2012, plaintiff complained to primary care physician Robert Ayres, M.D.,
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`that his back pain had gotten much worse in the last couple of weeks and was radiating down both
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`legs. (Tr. 719). An MRI of the lumbar spine showed a large disc protrusion/extrusion at L3/4
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`causing severe central canal stenosis. (Tr. 511).
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`Nicholas Poulos, M.D., a neurosurgeon, performed a total left laminectomy and
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`discectomy at L3-4 in December 2012. (Tr. 900). In February 2013, plaintiff had completed a
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`course of physical therapy. He still had some pain in his low back and into his left buttock, but
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`not down his leg. He felt like he was “gradually getting worse.” Dr. Poulos prescribed Voltaren
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`and Robaxin and planned to reevaluate him in six weeks. If he were not getting better, the doctor
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`Case 3:16-cv-00425-JPG-CJP Document 33 Filed 07/31/17 Page 8 of 14 Page ID #1182
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`would consider discogenic work-up. Dr. Poulos released him to return to work as a mason. (Tr.
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`877).
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`Plaintiff returned to Dr. Poulos on April 11, 2013. He had not taken Voltaren or Robaxin
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`because of the cost. His primary care physician had prescribed Vicodin and Gabapentin. Dr.
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`Poulos noted that his preoperative left leg pain had resolved, but he was developing progressive
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`spinal pain. Dr. Poulos again recommended trying Voltaren and Robaxin. The note states “full
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`time job postponed to end of the month.” (Tr. 879). On May 9, 2013, plaintiff reported that his
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`primary care physician had
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`instructed him
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`to stop
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`taking Voltaren, a nonsteroidal
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`anti-inflammatory drug, because he had rectal bleeding. He had been taking Vicodin and
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`Flexeril. He had good and bad days with pain in the low back and buttock. Dr. Poulos wrote that
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`“patient cannot work.” He noted that “We need to quickly change the direction of this case.” He
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`recommended a lumbar CT discogram, noting that the disc herniation at L3-4 was “massive” and
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`he suspected that the disc space was mechanically incompetent. (Tr. 882). In July 2013,
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`following the discogram, Dr. Poulos determined that he had a post-discectomy syndrome with
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`mechanically incompetent L3-4 disc space. He recommended decompression and internal
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`fixation at L3-4 and L4-5. (Tr. 885).
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`Plaintiff called Dr. Poulos’ office in August 2013 to schedule the surgery. He was
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`awaiting “his mother’s test results” and did not want to schedule it until the next week. In
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`September, he said he would like to schedule it for November. (Tr. 1017-1018). The surgery
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`was scheduled for November 12, 2013. On October 28, 2013, Dr. Poulos noted that plaintiff had
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`Case 3:16-cv-00425-JPG-CJP Document 33 Filed 07/31/17 Page 9 of 14 Page ID #1183
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`back pain radiating to his left buttock, at a level of 4 out of 10 on that date. Dr. Poulos ordered
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`preoperative labwork and requested medical clearance for surgery from his cardiologist. (Tr.
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`1011-1016).
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`Plaintiff was admitted to the hospital through the emergency room on November 4, 2013,
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`because of recurrent chest pain. Cardiac catheterization showed mild nonobstructive coronary
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`artery disease. His stents were widely patent. Continued aggressive risk factor modification was
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`recommended. (Tr. 1073-1077).
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`On November 7, 2013, Dr. Poulos’ office cancelled the surgery because written medical
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`clearance had not been received from the cardiologist. (Tr. 1009). On November 18, 2013, a
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`member of the staff wrote a note stating that she talked with plaintiff and “surgery will need to be
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`cancelled again …11/22/13…on hold till after new year. He will call when medically ok.” (Tr.
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`1007).
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`Dr. Gruen, the cardiologist, saw plaintiff in January 2014 for medical clearance for his
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`back surgery. She noted that he was under stress at home and took Xanax as needed for anxiety
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`attacks. He was “unable to be active due to his back pain.” (Tr. 1067-1068).
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`Surgery was scheduled for February 4, 2014, but was cancelled because plaintiff had
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`flu-like symptoms. (Tr. 1005).
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`Dr. Poulos performed the second back surgery on February 21, 2014. (Tr. 1026-1028).
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`One week later, plaintiff reported that 80% of his preoperative pain was gone. (Tr. 1002). Dr.
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`Poulos said he was unable to work until he was reevaluated. (Tr. 1004). On March 20, 2014, Dr.
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`Case 3:16-cv-00425-JPG-CJP Document 33 Filed 07/31/17 Page 10 of 14 Page ID #1184
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`Poulos noted he was wearing a back brace and a bone stimulator. He was cleared to come out of
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`the brace but was to continue using the bone stimulator for four hours a day. He had bilateral
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`sacral iliac tenderness. He was to begin physical therapy and was referred to pain management
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`for a left SI injection. (Tr. 999). In June 2014, Dr. Poulos was beginning to see some early bone
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`healing on x-rays. Plaintiff continued to wear an external bone stimulator. (Tr. 993). Dr.
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`Poulos released plaintiff form his care on September 4, 2014. He noted that plaintiff had received
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`two injections in his hip from another doctor and had much less pain in his groin. His spinal pain
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`was 70% better and he was smiling and “looks like a completely different person compared to his
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`preop persona.” (Tr. 990).
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`During the period October 12, 2012, to September 4, 2014, plaintiff’s primary care
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`physician noted that plaintiff’s anxiety was associated with chronic pain. She prescribed Xanax.
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`(Tr. 723, 794, 942).
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`Analysis
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`Plaintiff argues, correctly, that the ALJ failed to properly consider whether he was entitled
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`to a closed period of disability from October 12, 2012, to September 4, 2014.
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`Plaintiff’s argument focuses on the period during which plaintiff was being treated for back
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`pain. On October 12, 2012, plaintiff told his primary care physician that his back pain was
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`getting much worse and pain was radiating down his legs. The next day, an MRI showed a large
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`herniated disc causing severe central canal stenosis. As is detailed above, he had two back
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`Case 3:16-cv-00425-JPG-CJP Document 33 Filed 07/31/17 Page 11 of 14 Page ID #1185
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`surgeries over the next approximately fourteen months, and was not released by his surgeon until
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`September 4, 2014.
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`The Commissioner suggests that plaintiff cannot now argue for a closed period because he
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`did not amend his alleged onset date or ask the ALJ to consider a closed period. Doc. 32, p. 3.
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`The Court rejects this positon. The ALJ acknowledged in the first sentence of his decision that
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`plaintiff had applied “for a period of disability and disability insurance benefits.” (Tr. 22).
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`“The law defines disability as the inability to do any substantial gainful activity by reason
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`of any medically determinable physical or mental impairment which can be expected to result in
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`death or which has lasted or can be expected to last for a continuous period of not less than 12
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`months.” 20 C.F.R. § 404.1505(a). An applicant is entitled to a period of disability if he has “or
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`had a disability as defined in § 404.150, and he was insured for disability “in the calendar quarter
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`in which you became disabled, or in a later calendar quarter in which you were disabled.” 20
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`C.F.R. § 404.320(b).
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`Although the ALJ did not explicitly say so, his conclusion that plaintiff was not entitled to
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`a period of disability must necessarily be premised on the belief that plaintiff was able to do some
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`kind of full-time work for a substantial number of months between his first surgery in December
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`2012 and the time he was released by Dr. Poulos on September 4, 2014. It is difficult to identify
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`those months.
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`The only hints given by the ALJ as to his thinking are his observation that Dr. Poulos
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`released plaintiff to return to work by the end of February 2013, and his observation that plaintiff
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`Case 3:16-cv-00425-JPG-CJP Document 33 Filed 07/31/17 Page 12 of 14 Page ID #1186
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`“did allege a recurrence of intense back pain beginning in about May 2013, but it must not have
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`been that debilitating because the second back surgery was put off until February 2014.” (Tr.
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`33).
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`It is true that Dr. Poulos released plaintiff to return to work as a mason on February 14,
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`2013. Plaintiff tried, unsuccessfully, to work at a light duty, part-time job through May 2013.
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`(Tr. 313-319). The ALJ acknowledged that this was an “unsuccessful work attempt.” (Tr. 25).
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`In light of later events, it is obvious that Dr. Poulos was overly optimistic about plaintiff’s ability
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`to return to work as a mason at that time. By May 9, 2013, Dr. Poulos had reversed himself. On
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`that date, he wrote, “patient cannot work.” (Tr. 882). Furthermore, the ALJ did not find that
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`plaintiff was able to do his past work as a mason at any time after his alleged date of onset.
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`Therefore, the fact that Dr. Poulos released plaintiff to return work as a mason in February 2013 is
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`of little significance. Indeed, the ALJ did not find and the Commissioner does not now argue that
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`plaintiff was actually capable of working as a mason from February to May 2013.
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`More importantly, the ALJ ignored relevant evidence in concluding that the delay in
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`performing the second surgery shows that plaintiff’s pain was not debilitating. On May 9, 2013,
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`Dr. Poulos suspected that the disc space was mechanically incompetent because the herniation had
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`been “massive” and he recommended a lumbar CT discogram. (Tr. 882). It was not until July
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`2013, after a discogram had been done, that Dr. Poulos definitely recommended the second
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`surgery. (Tr. 885). His notes make it plain he was not going to do the second surgery until the
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`cardiologist had medically cleared plaintiff. Plaintiff was hospitalized for cardiac symptoms in
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`Case 3:16-cv-00425-JPG-CJP Document 33 Filed 07/31/17 Page 13 of 14 Page ID #1187
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`early November 2013. The surgery was scheduled for later that month, but was cancelled
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`because written clearance had not been received from the cardiologist. When the cardiologist saw
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`plaintiff in January 2014 to consider clearance for surgery, she noted that he was not able to be
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`active because of back pain. The surgery was ultimately done in February 2014. Plaintiff then
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`had physical therapy, wore a back brace, and used a bone growth stimulator. It was not until June
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`2014 that Dr. Poulos first saw early bone healing on x-rays. Plaintiff was not released from Dr.
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`Poulos’ care until September 4, 2014.
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`The ALJ’s cavalier remark that plaintiff’s back pain must not have been debilitating since
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`surgery was put off until February 2014 ignores the evidence summarized above. There is also no
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`indication that the ALJ considered plaintiff’s increased anxiety associated with pain during this
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`period.
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`There is no indication that the ALJ meaningfully considered whether plaintiff was unable
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`to work at any full-time job for at least a twelve month period since his alleged date of onset. This
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`was error requiring remand.
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`The Court wishes to stress that this Memorandum and Order should not be construed as an
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`indication that the Court believes that plaintiff is disabled or that he should be awarded benefits.
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`On the contrary, the Court has not formed any opinions in that regard, and leaves those issues to
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`be determined by the Commissioner after further proceedings.
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`Case 3:16-cv-00425-JPG-CJP Document 33 Filed 07/31/17 Page 14 of 14 Page ID #1188
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`The Commissioner’s final decision denying Thomas E. Campbell’s application for social
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`Conclusion
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`security disability benefits is REVERSED and REMANDED to the Commissioner for rehearing
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`and reconsideration of the evidence, pursuant to sentence four of 42 U.S.C. §405(g).
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`The Clerk of Court is DIRECTED to enter judgment in favor of plaintiff.
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`IT IS SO ORDERED.
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`DATE: 7/31/2017
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`s/J. Phil Gilbert
`J. PHIL GILBERT
`U. S. DISTRICT JUDGE
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