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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RANDY M., )

 )

 Plaintiff, ) 

 ) No. 20-cv-3912

v. ) 

 ) Magistrate Judge Jeffrey I. Cummings

KILOLO KIJAKAZI,1 )

Commissioner of Social Security, )

 )

 Defendant. )

MEMORANDUM OPINION AND ORDER

 Randy M. (“Claimant”) moves to reverse or remand the final decision of the 

Commissioner of Social Security (“Commissioner”) denying his claim for disability insurance 

benefits (“DIBs”) and Supplemental Security Income (“SSI”). The Commissioner filed a 

response seeking to uphold the decision to deny benefits. The parties have consented to the 

jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. §636(c). This Court has 

jurisdiction to hear this matter pursuant to 42 U.S.C. §§405(g) and 1383(c)(3). For the reasons 

herein, Claimant’s motion to reverse the decision of the Commissioner, (Dckt. #18), is granted 

and the Commissioner’s motion to uphold the decision to deny benefits, (Dckt. #23), is denied. 

I. BACKGROUND

A. Procedural History

 Claimant filed an SSI application on September 7, 2016, and a DIBs application on July 

31, 2017, both alleging a disability onset date of June 15, 2016, due to limitations stemming from 

1

 In accordance with Internal Operating Procedure 22 - Privacy in Social Security Opinions, the Court 

refers to Claimant only by his first name and the first initial of his last name. Acting Commissioner of 

Social Security Kilolo Kijakazi has also been substituted as the named defendant. Fed.R.Civ.P. 25(d). 

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high blood pressure and a traumatic injury to the neck and back sustained during a car accident. 

(R. 197). Claimant’s application was denied initially and upon reconsideration. (R. 15). He 

filed a timely request for a hearing, which was held on May 9, 2019, before Administrative Law 

Judge (“ALJ”) Roxanne J. Kelsey. (R. 30-47). Claimant appeared with counsel and offered 

testimony at the hearing. A vocational expert also offered testimony. On June 13, 2019, the ALJ 

issued a written decision denying Claimant’s application for benefits. (R. 12-29). Claimant filed 

a timely request for review with the Appeals Council. The Appeals Council denied Claimant’s 

request for review on May 4, 2020, (R. 1-6), leaving the ALJ’s decision as the final decision of 

the Commissioner. This action followed. 

B. The Social Security Administration Standard to Recover Benefits

To qualify for disability benefits, a claimant must demonstrate that he is disabled. He 

does so by showing that he cannot “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.” 42 U.S.C. §423(d)(1)(A). Gainful activity is defined as “the kind of work usually 

done for pay or profit, whether or not a profit is realized.” 20 C.F.R. §404.1572(b). 

The Social Security Administration (“SSA”) applies a five-step analysis to disability 

claims. 20 C.F.R. §404.1520. The SSA first considers whether the claimant has engaged in 

substantial gainful activity during the claimed period of disability. 20 C.F.R. §404.1520(a)(4)(i). 

At step two, the SSA determines whether the claimant has one or more medically determinable 

physical or mental impairments. 20 C.F.R. §404.1521. An impairment “must result from 

anatomical, physiological, or psychological abnormalities that can be shown by medically 

acceptable clinical and laboratory diagnostic techniques.” Id. In other words, a physical 

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or mental impairment “must be established by objective medical evidence from an acceptable 

medical source.” Id.; Shirley R. v. Saul, 1:18-cv-00429-JVB, 2019 WL 5418118, at *2 (N.D.Ind. 

Oct. 22, 2019). If a claimant establishes that he has one or more physical or mental impairments, 

the SSA then determines whether the impairment(s) standing alone, or in combination, are severe 

and meet the twelve-month duration requirement noted above. 20 C.F.R. §404.1520(a)(4)(ii). 

At step three, the SSA compares the impairment or combination of impairments found at 

step two to a list of impairments identified in the regulations (“the listings”). The specific 

criteria that must be met to satisfy a listing are described in Appendix 1 of the regulations. 20 

C.F.R. Pt. 404, Subpt. P, App. 1. If the claimant’s impairments meet or “medically equal” a 

listing, he is considered disabled, and the analysis concludes. If a listing is not met, the analysis 

proceeds to step four. 20 C.F.R. §404.1520(a)(4)(iii). 

 Before addressing the fourth step, the SSA must assess the claimant’s residual functional 

capacity (“RFC”), which defines his exertional and non-exertional capacity to work despite the 

limitations imposed by his impairments. The SSA then determines at step four whether the 

claimant is able to engage in any of his past relevant work. 20 C.F.R. §404.1520(a)(4)(iv). If the 

claimant can do so, he is not disabled. Id. If the claimant cannot undertake his past work, the 

SSA proceeds to step five to determine whether a substantial number of jobs exist that the 

claimant can perform in light of his RFC, age, education, and work experience. An individual is 

not disabled if he can do work that is available under this standard. 20 C.F.R. 

§404.1520(a)(4)(v). 

C. The Evidence Presented to the ALJ 

Claimant seeks DIBs due to limitations from high blood pressure and a traumatic injury 

to his back and neck. (R. 197). Claimant alleges an onset date of June 15, 2016, and his date last 

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insured was December 31, 2021. (R. 15). Because the Court’s decision relates only to 

Claimant’s back impairment, it will limit its discussion of the evidence accordingly. 

1. Evidence from the Medical Record 

On June 15, 2016, Claimant was involved in a car accident. Shortly thereafter, he 

presented to the emergency room with complaints of neck stiffness. (R. 302). An x-ray of his 

cervical spine showed degenerative changes with facet osteoarthritis and uncovertebral 

osteoarthritis, mild neural foraminal narrowing bilaterally, and C1-C2 osteoarthritis. (R. 306). 

The degenerative changes were most prominent at C6-C7. (Id.). Five days later, on June 20, 

2016, Claimant’s treating physician, Liz A. Phillips, D.O., reported that Claimant was unable to 

work until further evaluation. (R. 273). 

Claimant began physical therapy for cervicalgia and lumbar pain on July 19, 2016. (R. 

276). In thirty sessions, he made objective improvements in range of motion, joint/soft tissue 

mobility and strength, and posture, which allowed him to perform “all required [activities of 

daily living] and functional activities.” (Id.). Still, Claimant “continue[d] to present with 

impairments involving trunk [range of motion], soft tissue mobility and flexibility with residual 

pain,” which limited his “ability to lift objects from the floor or overhead.” (Id.). He was 

discharged from therapy on September 23, 2016. (Id.). 

One month later, on October 20, 2016, an MRI of Claimant’s lumbar spine revealed no 

evidence of disc herniation, spinal stenosis, significant foraminal narrowing, or paraspinous 

abnormalities. (R. 295). It showed “mild marrow edema along the superior anterior corner of 

the L4 vertebral body and fatty replacement of the marrow along the superior anterior corner of 

the L5 vertebral body which [were] probably due to mild degenerative change,” but there was 

“no evidence of acute skeletal injury or destructive lesions involving the lumbar spine” and “no 

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evidence of disc herniation, spinal stenosis, or significant foraminal narrowing [was] seen at any 

level.” (Id.). That same day, an MRI of Claimant’s thoracic spine showed a mild left 

posterolateral disc bulge at the T12-L1 level. (R. 296). 

Claimant began treatment with Scott E. Glaser, M.D. – a pain and rehabilitation specialist 

– on November 15, 2016. (R. 312). At Claimant’s initial visit, he reported stiffness, rare 

numbness and tingling, and a limited range of motion. (Id.). He stated that physical activity 

aggravated his pain, which he rated a two out of ten at best and a seven out of ten at worst. (Id.). 

Claimant reported that the pain regularly interfered with his sleep and that his prior physical 

therapy had resulted in “no improvement in pain and function.” (Id.). Claimant presented with 

limited extension and rotation in his cervical and lumbar spine and he was diagnosed with facet 

syndrome without myelopathy of the lumbar spine, cervical radiculopathy, and facet syndrome 

without myelopathy of the cervical spine. (R. 315). Dr. Glaser ordered bilateral facet joint 

injections at L3-L4, L4-L5, (Id.), which Claimant received on January 23, 2017, (R. 325). 

Although the steroid injection gave Claimant fifty percent relief initially, it had no longterm benefit. (R. 309). On February 28, 2017, his neck pain, left finger pain, and back pain had 

increased, reaching a ten out of ten at worst and a six out of ten on average. (Id.). Claimant 

reported needing to sit down or lie down several times per day to control the pain. (Id.). Dr. 

Glaser administered bilateral medial nerve branch block injections at L2 through L5 and 

prescribed Tramadol and Cyclobenzaprine. (R. 310). Claimant received the same treatment on 

July 24, 2017. (R. 342). Dr. Glaser recommended that Claimant remain off work while under 

treatment. (R. 274). 

On August 8, 2017, Claimant informed Dr. Glaser that his pain had decreased since he 

began receiving injections. (R. 437). Although Claimant still had some tenderness in the 

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cervical and lumbar spine, limited extension and rotation in the lumbar spine, and pain with 

physical activities, the pain was a five out of ten at worst and a four out of ten on average. (R. 

437-38). 

Claimant presented for an evaluation at the Illinois Spine & Scoliosis Center on October 

3, 2018. (R. 534). He reported that the first epidural steroid injection had decreased his back 

pain by seventy-five percent for only a couple weeks, and the second injection had not helped at 

all. (Id.). Claimant described the pain as an eight out of ten at worst. (Id.). He noted that 

nothing helped, but he used over-the-counter medication on an as-needed basis. (Id.). The 

treating provider – Jason Welsch, P.A. – observed that Claimant was in no acute distress, walked 

with a normal gait, and could rise from a seated position and heel-toe walk without difficulty. 

(Id.). Claimant’s range of motion was decreased in his cervical spine, but normal in his lumbar 

spine. (Id.). His motor strength was a five out of five, his straight leg tests were negative, and 

his deep tendon reflexes were one out of three. (R. 535). Welsch recommended Claimant begin 

physical therapy and obtain updated x-rays and MRIs of his cervical and lumbar spine “to 

evaluate the source of his radicular type symptoms.” (Id.). 

Claimant was evaluated at ATI physical therapy on October 12, 2018. (R. 565). 

Krzysztof Siemionow, M.D., noted that Claimant presented with signs and symptoms consistent 

with his diagnosis of cervicalgia, such as decreased range of motion, strength, and joint mobility, 

as well as impairments with posture. (Id.). Claimant reported that his deficits limited his ability 

to bend, empty the dishwasher, make his bed, carry objects, drive, lift objects from the floor, lift 

objects overhead, stand for greater than thirty minutes, and sit for lengthy periods of time. (Id.). 

Dr. Siemionow observed that Claimant had a normal gait and good lumbar mobility, but limited 

cervical joint mobility. (Id.). 

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Claimant was discharged from therapy on November 23, 2018, after making objective 

improvements with joint mobility, strength, soft tissue mobility, flexibility, and posture, but 

continued to present with some impairments. (R. 559). Claimant reported that his remaining 

impairments still limited his ability to lift overhead, stand for more than thirty minutes, and sit 

for lengthy periods of time. (Id.). Dr. Siemionow again noted that Claimant had good lumbar 

mobility, but some restrictions in his cervical mobility and thoracic spine mobility. (R. 560). 

Despite these ongoing defects, he found that Claimant had reached “maximum benefit” from 

physical therapy. (Id.). 

On October 22, 2018, an updated MRI of Claimant’s lumbar spine showed: 

Normal lumbar curvature; disc desiccation throughout the lumbar spine; type II 

endplate degenerative changes at L2-3 through L5-S1; and unremarkable bone 

marrow signal. At the L2-3 and L3-4 level, there was a one- to two-millimeter 

diffuse disc protrusion with effacement of the thecal sac; hypertrophy of facet 

joints; and neuroforaminal narrowing without significant impingement of exiting 

nerve roots. At the L4-5 level there was a two-millimeter diffuse disc protrusion 

with effacement of the thecal sac; hypertrophy of facet joints; and disc material and 

facet hypertrophy causing bilateral neuroforaminal narrowing that effaces the left 

and right L-4 exiting nerve roots. At the L5-S1 level, there was a one- to twomillimeter diffuse disc protrusion with effacement of the thecal sac; hypertrophy of 

the facet joints; and neuroforaminal narrowing without significant impingement of 

existing nerve roots. The rest of the lumbar intervertebral discs appeared 

unremarkable. 

(R. 547). That same day, an x-ray of Claimant’s cervical spine showed restricted range of 

motion in flexion and extension positions. (R.537). PA Welsch reviewed these images with 

Claimant on November 8, 2018. (R. 532). At the appointment, Claimant demonstrated five out 

of five motor strength, negative straight leg tests, and one out of three deep tendon reflexes. (R. 

532). He reported ongoing neck and low back pain, but denied changes in balance, coordination, 

dexterity, or dropping objects. (Id.). Welsch recommended continued therapy. (Id.). 

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On January 23, 2019, Claimant underwent a discogram of the L3-L4, L4-L5, and L5-S1 

levels. (R. 543-44). He tested positive for discogenic pain at the L4-L5 level. (R. 543). On 

February 27, 2019, Dr. Siemionow informed Claimant that he could undergo surgery for his 

lower back pain, with a sixty percent chance of a positive outcome. (R. 526). Claimant said he 

would consider the procedure, (Id.), but had not had it at the time of his hearing, (R. 36). 

2. Evidence from State Agency Consultants 

State agency consultant Young-Ja Kim, M.D., reviewed Claimant’s file on November 7, 

2017. He found that Claimant could occasionally lift up to fifty pounds and frequently lift up to 

twenty-five pounds. (R. 53). He found that Claimant could stand, walk, or sit for about six 

hours in an eight-hour workday. (Id.). Dr. Kim based these exertional limitations, in part, on 

Claimant’s June 2016 cervical spine x-ray and October 2016 MRI. (Id.). Dr. Kim also found 

that Claimant could only occasionally climb ladders, ropes, and scaffolds, and should be limited 

to medium work. (R. 54-55). State agency consultant James Hinchen, M.D., reviewed 

Claimant’s file on March 14, 2018, and agreed with Dr. Kim’s findings. (R. 77). 

3. Evidence from Claimant’s Testimony 

At the May 9, 2019 hearing, Claimant testified that he could do laundry, wash the dishes, 

and shop, so long as these activities did not require much bending or twisting. (R. 35). He stated 

that he no longer used prescription pain medications because they caused memory loss. (R. 36). 

Claimant described his pain as a three or four out of ten on average and a six or seven out of ten 

when engaged in physical activity. (R. 37). He testified that he could occasionally lift up to 

twenty pounds, but it would cause discomfort and he would not want to do it regularly. (R. 37-

38). He could stand for thirty minutes before becoming uncomfortable, sit for thirty minutes 

before needing to stand up, and walk for “extended periods.” (Id.). 

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D. The ALJ’s Decision

The ALJ applied the five-step inquiry required by the Act in reaching her decision to 

deny Claimant’s request for benefits. At step one, she found that Claimant had not engaged in 

substantial gainful activity since his alleged onset date of June 15, 2016. (R. 17). At step two, 

she determined that Claimant suffered from the severe impairments of cervical osteoarthritis and 

lumbar degenerative disc disease. (Id.). 

At step three, the ALJ concluded that Claimant did not have an impairment or 

combination of impairments that met or medically equaled one of the Commissioner’s listed 

impairments. (R. 19). Before turning to step four, she determined that, through his date last 

insured, Claimant had the RFC to perform medium work as defined in 20 CFR 404.1567(c) and 

416.967(c). (R. 19). She also limited Claimant to only occasional climbing of ladders, ropes, or 

scaffolds. (Id.). At step four, the ALJ found that Claimant could not perform his past relevant 

work as a construction worker. (R. 23). Even so, at step five, the ALJ concluded that a 

sufficient number of jobs existed in the national economy that Claimant could perform, including 

the representative jobs of dining room attendant, hand packager, and cleaner. (R. 24). As such, 

the ALJ found that Claimant was not disabled between his alleged onset date and the date of the 

decision. (R. 25). 

II. STANDARD OF REVIEW 

A claimant who is found to be “not disabled” may challenge the Commissioner’s final 

decision in federal court. Judicial review of an ALJ’s decision is governed by 42 U.S.C. 

§405(g), which provides that “[t]he findings of the Commissioner of Social Security as to any 

fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. §405(g). “Substantial 

evidence is not a high threshold: it means only ‘such relevant evidence as a reasonable mind 

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might accept as adequate to support a conclusion.’” Karr v. Saul, 989 F.3d 508, 511 (7th Cir. 

2021), quoting Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal quotation marks 

omitted). The Commissioner’s decision must also be based on the proper legal criteria and be 

free from legal error. Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004); Steele v. Barnhart, 

290 F.3d 936, 940 (7th Cir. 2002). 

A court reviews the entire record, but it does not displace the ALJ’s judgment by 

reweighing the facts, resolving conflicts, deciding credibility questions, making independent 

symptom evaluations, or otherwise substituting its judgment for that of the Commissioner. 

McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011); Elder v. Astrue, 529 F.3d 408, 413 (7th 

Cir. 2008). Instead, the court looks at whether the ALJ articulated an “accurate and logical 

bridge” from the evidence to her conclusions. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008). 

This requirement is designed to allow a reviewing court to “assess the validity of the agency’s 

ultimate findings and afford a claimant meaningful judicial review.” Scott v. Barnhart, 297 F.3d 

589, 595 (7th Cir. 2002). Thus, even if reasonable minds could differ as to whether the claimant 

is disabled, courts will affirm a decision if the ALJ’s opinion is adequately explained and 

supported by substantial evidence. Elder, 529 F.3d at 413. 

III. ANALYSIS 

Claimant essentially argues, among other things, that the ALJ: (1) impermissibly relied 

on the outdated opinions of state agency consultants when assessing Claimant’s RFC; and (2) 

“played doctor” by interpreting potentially decisive medical evidence herself. Because both of 

these arguments have merit, the Court finds that a remand to the SSA is warranted and it will not 

address Claimant’s remaining arguments. See DeCamp v. Berryhill, 916 F.3d 671, 676 (7th Cir. 

2019) (“Because we determine that the ALJ did not properly evaluate DeCamp’s limitations . . . 

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we do not address DeCamp’s other arguments.”). The Court’s decision in this regard is not a 

comment on the merits of Claimant’s other arguments and he is free to assert them on remand. 

A. The ALJ erred by relying on the opinions of state agency consultants who 

had not reviewed all of the evidence of record. 

In making her RFC determination, the ALJ relied heavily on the opinions of the state 

agency consultants, finding them “consistent with and well supported by the evidence of the 

record as a whole” notwithstanding the fact that forty-one pages of evidence were introduced 

into the record after they had rendered their assessments. (R. 23). As explained at length below 

– see Section III(B), infra – the Court finds that these records contained “potentially decisive” 

medical evidence. As such, their submission rendered the consultants’ opinions outdated and the 

ALJ was not permitted to rely on them when determining Claimant’s RFC. Lambert v. Berryhill, 

896 F.3d 768, 776 (7th Cir. 2018) (“ALJs may not rely on outdated opinions of agency 

consultants if later evidence containing new, significant medical diagnoses reasonably could 

have changed the reviewing physician’s opinion.”) (internal quotations and citations omitted); 

Moreno v. Berryhill, 882 F.3d 722, 728 (7th Cir. 2018) (same); see also Mary P. v. Berryhill, No. 

17-CV-06545, 2019 WL 2491640, at *7-8 (N.D.Ill. June 14, 2019) (instructing the ALJ to 

“submit all the medical evidence to the state agency physicians for further review and scrutiny 

before making a determination that relies on their opinions”). 

B. The ALJ erred by independently assessing medical evidence submitted after 

the state agency consultants had rendered their opinions. 

Because no medical professional in the record submitted an opinion regarding Claimant’s 

functional capacity after reviewing the updated records, the ALJ necessarily interpreted this new 

medical evidence herself. Claimant contends that by doing so, the ALJ impermissibly “played 

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doctor,” and should have instead sought a medical opinion regarding what effect the evidence 

would have on Claimant’s RFC. (Dckt. #18 at 12). The Court agrees. 

The Seventh Circuit has repeatedly held that an ALJ may not “play [] doctor and interpret 

new and potentially decisive medical evidence without medical scrutiny.” McHenry v. Berryhill, 

911 F.3d 866, 871 (7th Cir. 2018) (internal quotation marks omitted); see also Lambert, 896 F.3d 

at 774; Akin v. Berryhill, 887 F.3d 314, 317–18 (7th Cir. 2018); Moreno, 882 F.3d at 728. In

Kemplen v. Saul, the Seventh Circuit summarized its prior holdings as providing the following 

standard: “the ALJ must seek an additional medical opinion if there is potentially decisive 

evidence that postdates the state agency consultant’s opinion.” 844 Fed.Appx. 883, 888 (7th Cir. 

2021). In other words, the issue “comes down to whether the new information ‘changed the 

picture so much that the ALJ erred by . . . evaluating [herself] the significance of [the 

subsequent] report.’” Id. (citing Stage v. Colvin, 812 F.3d 1121, 1125 (7th Cir. 2016)). 

Here, the evidence submitted after the state agency consultants’ reviews of Claimant’s 

file included: (1) notes from Claimant’s physical therapist regarding Claimant’s complaints of 

ongoing pain and functional limitations; (2) an updated MRI of Claimant’s lumbar spine; (3) a 

discogram; and (4) a surgery recommendation from one of Claimant’s treating providers. (R. 

526-66). The ALJ summarized this evidence and concluded that it “did not provide any credible 

or objectively supported new and material information that would alter the state agency 

consultant’s findings concerning the claimant’s limitations as claimant had the same complaints 

as prior visits.” (R. 23). 

The Commissioner responds only briefly to Claimant’s argument that the ALJ was not 

qualified to make the above determination (which constitutes half of Claimant’s arguments for 

his appeal). Rather than addressing the relevant question – that is, was the updated medical 

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evidence “potentially decisive” – the Commissioner simply asserts that the ALJ’s finding was 

proper because “various regulations require ALJs to evaluate medical records.” (Dckt. #23 at 8) 

(citing 42 U.S.C. §405(b)(1); 20 C.F.R. §404.1512). While the Court agrees that ALJs are 

required to consider the medical record, they may not draw conclusions from evidence that is not 

open to layperson interpretation. See Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014) (ALJ 

impermissibly played doctor by “summariz[ing] the results of the 2010 MRI in barely intelligible 

medical mumbo jumbo”); see also William G. v. Kijakazi, No. 20 C 5880, 2022 WL 2305323, at 

*5 (N.D.Ill. June 27, 2022) (“While the various regulations the Commissioner cites assign the 

evaluation of medical evidence to the ALJ . . . an ALJ is not permitted to ‘play doctor’ and make 

independent medical conclusions that are unsupported by medical evidence in the record.”). 

The Seventh Circuit has been especially critical of ALJs’ attempts to deduce the meaning 

of complex medical documents, such as MRIs. See Israel v. Colvin, 840 F.3d 432, 439-440 (7th 

Cir. 2016) (“Because no physician in the record has opined on whether these [MRI] results are 

consistent with Israel’s claim of disabling pain, and because the reports are replete with technical 

language that does not lend itself to summary conclusions, we cannot say whether the results 

support or undermine Israel’s claim.”); Goins, 764 F.3d at 680. Indeed, the Seventh Circuit has 

explicitly found that “[a]n ALJ may not conclude, without medical input, that a claimant’s most 

recent MRI results are ‘consistent’ with the ALJ’s conclusions about her impairments,” 

McHenry, 911 F.3d at 871; see also Akin, 887 F.3d at 317 (same), which is exactly what the ALJ 

did here. (R. 23) 

Furthermore, this is not a situation where the most recent and unreviewed evidence 

revealed only minor changes. See Kemplen, 844 Fed. Appx. at 887 (noting the Seventh Circuit 

has “upheld the denial of benefits when MRI evidence post-dating the state agency consultant’s 

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report showed only mild changes in the claimants’ respective conditions”). To the contrary, 

there are noticeable differences between the 2016 and 2018 MRIs of Claimant’s lumbar spine. 

For example, while the October 20, 2016 MRI revealed “no evidence of paraspinous 

abnormalities,” (R. 295), the October 22, 2018 MRI showed “disc desiccation throughout the 

lumbar spine,” (R. 547). And where the 2016 MRI showed no evidence of significant foraminal 

narrowing, (R. 295), the 2018 MRI revealed neuroforaminal narrowing at the L2-3, L3-4, L4-5, 

and L5-S1 levels, with the L4-5 level showing bilateral neuroforaminal narrowing effacing the 

left and right L-4 exiting nerve roots, (R. 547). Furthermore, the 2016 MRI did not mention disc 

protrusion, (R. 295), which the 2018 MRI showed at the L2-3, L3-4, L4-5, and L5-S1 levels, (R. 

547). Finally, the 2016 MRI indicated that there were likely mild degenerative changes at L4 

and L5, (R. 295), while the 2018 MRI more definitively indicated “type II endplate degenerative 

changes at L2-L3, L3-L4, and L4-L,” (R. 532, 547). 

These differences between the 2016 and 2018 MRIs are illustrated as follows:

October 20, 2016 MRI October 22, 2018 MRI 

No evidence of paraspinous abnormalities. Disc desiccation throughout the lumbar spine. 

No evidence of significant foraminal 

narrowing. 

Neuroforaminal narrowing at the L2-3, L3-4, 

L4-5, and L5-S1 levels, with the L4-5 level 

showing bilateral neuroforaminal narrowing 

effacing the left and right L-4 exiting nerve 

roots. 

No mention of disc protrusion. Disc protrusion at the L2-3, L3-4, L4-5, and 

L5-S1 levels. 

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Mild marrow edema along the superior 

anterior corner of the L4 vertebral body and 

fatty replacement of the marrow along the 

superior anterior corner of the L5 vertebral 

body “probably” due to mild degenerative 

change. 

Type II endplate degenerative changes at L2-

L3, L3-L4, and L4-L. 

In addition, the state agency consultants did not have the opportunity to review 

Claimant’s January 23, 2019 discogram, which revealed discogenic pain at the L4-L5 level, (R. 

543), and prompted Dr. Siemionow to recommend lower back surgery, (R. 526). The fact that 

no medical professional had recommended surgery prior to this point casts further doubt on the 

ALJ’s finding that the updated evidence contained no objectively supported information that 

would alter the consultants’ findings. (R. 23). 

Notably, the ALJ did not analyze any of the updated evidence. Instead, she first 

minimized the extent of the evidence by stating that it “was limited to primarily two visits to the 

physician assistant.” (R. 23). She then opined – without addressing the new MRI or Dr. 

Siemionow’s surgical recommendation – that the updated evidence “did not provide any credible 

or objectively supported new and material information that would alter the state agency 

consultant’s findings concerning the claimant’s limitations as claimant had the same complaints 

at prior visits.” (Id.) (emphasis added). In essence, the ALJ seemed to suggest that even if the 

new evidence revealed significant medical changes, they were immaterial because Claimant’s 

complaints remained the same throughout the record. 

Contrary to the ALJ’s finding, however, the unreviewed record shows that Claimant’s 

subjective complaints did, in fact, vary over time. In particular, the most recent evidence 

reviewed by state agency consultant Dr. Hinchen on March 14, 2018, indicated that Claimant’s 

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back pain had improved significantly due to the steroid injections Claimant had received on 

February 28, 2017. (R. 437). Indeed, when explaining his RFC findings, Dr. Hinchen wrote 

that: “[Claimant’s] lower back pain has decreased. The frequency of the pain has decreased. 

The area of pain has decreased. Ratio of good days to bad days has increased. Overall reports of 

pain has decreased.” (R. 72, 76). By contrast, the records submitted after Dr. Hinchen’s review 

showed that the effectiveness of the injections was short-lived, subsequent injections did little to 

relieve Claimant’s pain, and by October 3, 2018, Claimant was again reporting constant and achy 

pain at levels comparable to what he had reported before the injections. (R. 534) (describing his 

pain as an eight out of ten at worst). Accordingly, the consistency of Claimant’s complaints was 

not a sufficient reason not to submit his updated records to medical scrutiny. 

In sum: because the forty-one pages of evidence submitted after state agency review was 

potentially decisive, the ALJ erred by: (1) relying on the state agency consultants’ outdated 

findings and (2) interpreting the evidence herself. This error was not harmless. Lambert, 896 

F.3d at 776 (“An error is harmless only if we are convinced that the ALJ would reach the same 

result on remand.”). The ALJ found that Claimant was capable of performing medium work, 

which involves lifting up to fifty pounds at a time; frequent lifting or carrying of objects 

weighing up to twenty-five pounds; frequent bending and stooping; and standing or walking, off 

and on, for approximately six hours per eight-hour workday. 20 CFR 404.1567(c); SSR 83-10. 

The ALJ made this finding despite Claimant’s allegations that his back pain prohibited him from 

lifting heavy objects and bending, (R. 20, 35, 224, 559, 565), based on her conclusion that “the 

record does not contain sufficient medical evidence to support [Claimant’s] assertions,” (R. 20). 

However, the updated evidence at issue here – which revealed degenerative changes in 

Claimant’s spine and prompted his treating physician to recommend surgery – appears to provide 

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support for those claims. The ALJ lacks the medical qualifications to say for certain one way or 

the other. 

Accordingly, on remand, the ALJ should obtain a medical opinion regarding whether 

Claimant’s back impairment – as documented in exhibit 8F – would require additional functional 

restrictions in his RFC. 

CONCLUSION

 For the foregoing reasons, Claimant’s motion to reverse the Commissioner’s decision to 

deny him DIBs and SSI, (Dckt. #18), is granted and the Commissioner’s motion to uphold the 

decision to deny benefits, (Dckt. #23), is denied. The decision of the Commissioner is reversed, 

and the case is remanded for further proceedings consistent with this Memorandum Opinion and 

Order. 

ENTERED: October 5, 2022 

 

 

 ______________________ 

 Jeffrey I. Cummings 

United States Magistrate Judge 

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