Cichon v. Barnhart (222 F. Supp. 2d 1019, 2002)

MEMORANDUM OPINION AND ORDER

NOLAN, United States Magistrate Judge.

This is an action brought under 42 U.S.C. § 405(g) to review the final decision of the Commissioner of Social Security denying plaintiff John Cichon’s (“Cichon”) claim for both Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 686(c). For the reasons explained below, the Court denies both parties’ motions for summary judgment, vacates the ruling of the ALJ, and finds that this matter should be remanded for further proceedings.

I. PROCEDURAL HISTORY

On January 19, 1999 Cichon applied for Title II disability insurance benefits, alleging that he had been incapable of work due to a herniated disc since April 3, 1998. (R. 19, 39.) On February 26, 1999, the Social Security Administration (“SSA”) denied his application, explaining he failed to qualify for benefits because he was capable of returning to past work despite the pain and discomfort caused by his medical condition. (R. 21.) Cichon then filed a request for reconsideration on March 23, 1999, which the SSA denied on April 21, 1999 on the grounds that no new evidence proved his condition worsened or illustrated his inability to perform past work or to handle light work activity. (R. 25-26.) Finally, Cichon filed a request for a hearing by an administrative law judge (“ALJ”) on June 21, 1999 and successfully attained one on September 2, 1999 as a pro se claimant. (R. 11, 29.) The ALJ ruled that under the Social Security Act, Cichon had not been disabled at any time through the date of the hearing because he was capable of at least light work even though he could not return to past work. (R. 16.) As a result, Cichon filed a request for a review of the ALJ’s decision on October 29, 1999, but the SSA Appeals Council denied his request on November 3, 2000. Thus, the ALJ’s decision became the final decision of the Commissioner and is now reviewable by the District Court under 42 U.S.C. § 405(g).

II. FACTUAL BACKGROUND

A. Medical Evidence

Prior to the onset of Cichon’s alleged disability, he had already suffered episodes of severe back pain due to another injury. (R. 98.) As early as September 1997, Ci-chon was admitted to the emergency room at Central DuPage Hospital for lower back pain, and the next month he began treatment with Dr. Davison, who estimated Ci-chon suffered from an acute disc herniation at L4-L5, acute lower back pain, and numbness running from his legs to his feet. (R. 91, 98-99.) Dr. Davison prescribed Vicodin and Flexeril three times a day for his pain.

The fall that Cichon claimed caused the disability for which he sought disability benefits occurred while he was at work on February 2, 1998. (R. 92.) Subsequently, on March 10, 1998, Cichon was admitted to Bolingbrook Medical Center’s emergency-room for sharp pain in his right buttock, numbness in his right leg, and severe back pain. (R. 144.) Although x-rays showed nothing but normal conditions, another examination showed mild tenderness in his lumbar spine with spasms and right straight leg raising (“SLR”) positive at fifty degrees. (Id.) Cichon was diagnosed with possible acute lumbar strain. (Id.) On March 13,1998, he was again examined by Dr. Davison, who found that his patient had no Achilles reflex, decreased toe strength on the right side, and substantial palpable spasms and that the SLR exam caused Cichon pain. (R. 92.) Dr. Davison prescribed him various medications to relieve pain, such as Vicodin, Flexeril, Pred-nisone and Duract.. (Id.) Later in March 1998, under Dr. Davison’s care, Cichon underwent an MRI exam that revealed a bulge at L4-L5 and right side herniation at L5-S1. (R. 97.)

By April 3, 1998, which was the onset date of Cichon’s alleged disability, he visited Dr. Zuhosky, a surgeon at Glen Oaks Hospital, for an epidural steroid injection. (R. 121, 126.) A few days later, he received another injection from Dr. Lagattu-ta at Glen Oaks Hospital upon recommendation from Dr. Davison, who also ordered Cichon not to work for two weeks and continued to prescribe him Vicodin and Ambien, a sleep-inducing drug. (R. 120-21, 126.) On April 14 1998, Cichon was admitted to Bolingbrook Medical Center emergency room for right buttock pain and right leg pain verified by an examination which showed tenderness in the right buttock but also showed good reflexes. (R. 147.) There, on April 22, 1998, Dr. Lemak diagnosed him with right leg pain after an exam showed tender swelling in the right thigh, decreased Achilles reflex and a limited range of motion in his right hip. (R. 150.) Two days later, Cichon received an electromyography (“EMG”) at Glen Oaks Hospital where he was also diagnosed with a right L5 radiculopathy and peripheral neuropathy. (R. 123.)

Including his first visit for an epidural injection, Cichon visited Dr. Lagattuta four times during April and May of 1998. During a second visit in April, Dr. Lagattuta reported that Cichon’s SLR was positive at thirty degrees, lumbar extension caused pain down his leg, sensation was decreased at L5, reflexes were absent at the ankles and motor testing showed weakness of foot and toe extension. After an exam on April 27, 1998, Dr. Lagattuta reported Cichon could lift ten pounds frequently and twenty pounds occasionally, had no ability for moderate or heavy lifting or extensive bending and stooping, could walk frequently and could occasionally climb stairs, twist, push, and pull. (R. 117.) Dr. La-gattuta’s final exam of Cichon in May 1998 involved an EMG that showed membrane irritability at his L5 muscles, his right leg and lumbar paraspinals, and a severe right L5 radiculopathy as well as a mild diffuse peripheral neuropathy. (R. 131-32.) Dr. Davison also administered his final exam of Cichon in early May 1998 and reported Cichon suffered from increasing lower back pain that radiated into his right leg where he also felt weakness. An exam showed a progressive decrease of his Achilles reflex, great toe strength and that SLR right and left caused Cichon pain. (R. 95.)

Dr. Michael Caron, Cichon’s treating neurosurgeon at the time of the hearing, began seeing Cichon on May 7, 1998 and continued to treat him through the date of the hearing in fall 1999. (R. 109, 160.) From the start, in May 1998, he diagnosed Cichon with a large herniation at L5-S1 with significant weakness, a moderate L4-L5 bulge with weakness and L5 nerve root distribution. (R. 109.) Dr. Caron reported Cichon’s need for a right L5-S1 micro-diskectomy, foraminotomy, monitoring of his L4-L5 level and continued pain medications. (R. 109, 111.) He also reported the exam showed moderate paraspinal muscle spasms, positive right sciatic notch tenderness, positive right SLR pain, left SLR that caused pain to right side, and positive pain on right hip rotation. (R. 111.) Cichon later reported to Dr. Caron that he suffered throbbing hip and leg spasms from knee to ankle and severe stabbing pain at the center of his foot. (R. 108.) By June 24, 1998, Dr. Caron reported concern over Cichon’s obvious herniated lumbar disc. (R. 107.) He examined him again in August 1998 and found positive paraspinal muscle spasm, and positive SLR pain on both sides. (R. 103.) On October 12, 1998, Cichon reported to Dr. Caron of worsening pain running down his right leg, a throbbing in the side of his foot at the SI distribution, severe pain when lying down, and difficulty sleeping. (R. 101.) Dr. Caron’s subsequent exam during his visit showed a weakened ankle and great toe, and gastric extension at L4-L5. (Id.) Dr. Caron reported his concern of Cichon’s permanent nerve damage and possible drug dependency without surgery. (Id.)

Cichon was examined by Dr. Yonan of the Disability Determination Service (“DDS”) of the SSA on February 9,1999 in a report marked Exhibit 7F. (R. 151-53.) Dr. Yonan diagnosed Cichon with a herniated L5-S1 disc and stated that ankle extensions at L4-L5 caused limitations. (R. 152.) He reported Cichon’s exertional limitations to be twenty pounds lifting occasionally and ten pounds frequently, and his ability for standing or walking to be six hours out of an eight hour work day with normal breaks. (R. 152.) He also reported that Cichon could balance, crouch, crawl, and kneel frequently, could stoop occasionally, but could either never or only occasionally climb. (R. 153.) Cichon also responded to a DDS-administered pain questionnaire in which he claimed that since the accident, he had constant pain in his right buttocks that spread to his foot. (R. 88.) He then claimed that he relied on one Vicodin tablet every six hours, two Flexeril tablets a day, and wore a back belt, but that even such attempts failed to relieve his pain. (Id.) Cichon explained that the pain first began to affect his activities on February 2, 1998 and became disabling on April 3, 1998 due to his inability to stand or sit for long periods. (R. 89.) He claimed his daily activities included walking, shopping, chores, driving, and socializing, but that all activities were curtailed by his pain and his problems with weakness and numbness in his legs. (Id.)

Cichon’s last medical diagnosis before the hearing was from Dr. Caron. (R. 160.) Dr. Caron stated in a letter dated October 1, 1999 that Cichon should be considered “almost totally disabled for heavy labor” and that his work capacity was standing for two hours performing light duty lifting with “rare medium weight” of forty to sixty pounds for ten to twenty seconds at a time. (Id.) He also reported that Cichon had the capacity for minimal bending and squatting but could not lift overhead during his two-hour work tolerance. (Id.) He stated that Cichon required a one to three hour reclining period before resuming another two hours of work. (Id.) Dr. Caron also expressed that Cichon had a good chance of returning to medium-weight level employment on a full time basis with surgical intervention. (Id.) He explained that if more evidence was required for further documentation, that he would be able to provide it upon request. (Id.)

B. Testimony

Cichon, who was thirty-eight years old at the time of the hearing, was born on August 9, 1961. (R. 168.) Cichon’s highest level of education was the tenth grade, and he had no vocational training or literacy problems. (R. 169.) He was 6'1" and 180 pounds. (R. 176.) Since February 1999, Cichon had lived at a hotel managed by his girlfriend. (R. 177.)

Cichon last worked in April 1998, the time he claimed his disability began, ending a nine-month employment period as a batchweigher and mill hand, a job which required lifting between forty and eighty pounds on a regular basis. (R. 169-70.) For the last fifteen years, Cichon had only worked warehouse-related jobs such as forklift driving, dock work, shipping, and janitorial. (R. 173.) Cichon claimed he eventually quit work in April 1998 because he could no longer stand or lift and had frequent numbness and sharp pain in his legs. (R. 170.) Moreover, his employers found his physical limitations prohibitive to his job performance. (Id.) Cichon testified he had not had any employment for nearly an entire year after the alleged onset date of his disability in April 1998 until the spring in 1999 when he returned to engaging sporadically in landscaping work, a job he had done over the last six years independently. (R. 170-72.) Most recently, he explained, he had engaged in landscaping eight weeks prior to the hearing. (R. 171.) Such work involved riding a mower, hand mowing, trimming bushes, and maintaining the employer’s residence by cleaning windows and occasionally the home’s interior. (Id.) Cichon added that his employer, with whom he had a prior employment relationship, was aware of his physical condition and warned Cichon not to overexert himself. (R. 172.)

Cichon testified that he had chronic back pain, numbness in his legs, and leg weakness when he would stand or sit for long periods of time or when he would bend. (R. 173.) He claimed that he could only walk three to four blocks before needing rest. Cichon testified to a standing tolerance of five to ten minutes, a sitting tolerance of ten to fifteen minutes, and a lifting tolerance of fifteen to twenty pounds and stated he could not climb or stoop but could tolerate minimal bending. (R. 173-74.) He also testified he had difficulty sleeping due to his severe back pain. (R. 174.) Cichon stated he took pain medications such as extra-strength Vicodin every six hours with no side effects. (R. 176.) However, he claimed that none of the pain relieving remedies was effective, including non-medicinal treatments such as rest, bathtub soaking, or rubdowns. (R. 176-77.) Cichon claimed his doctors informed him he needed surgery before rehabilitation could begin, but the expense of the surgery made this a prohibitive option. (R. 174.) In terms of handling the basic needs of self-care, Cichon had no difficulty with showering, but some difficulty bathing because of buttocks pain from sitting. (R. 177.) Cichon stated he was capable of helping with minor chores around his hotel such as sweeping sidewalks, emptying garbage and dusting rooms, but could only perform such duties in five minute intervals before needing work breaks. (R. 180.) He also stated he was able to drive short distances, but that he had difficulty sitting for a substantial period of time without his legs becoming numb. (R. 178.)

C. Vocational Expert Testimony

The vocational expert (