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Case: 1:12-cv-02059 Document #: 37 Filed: 09/20/13 Page 1 of 43 PageID #:766

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Plaintiff,


v.



RONALD DEMARCO





MICHAEL J. ASTRUE,
Commissioner of
Social Security








Defendant.

)
)
)
) No. 12 cv 2059
)
) Magistrate Judge Arlander Keys
)
)
)
)
)

MEMORANDUM OPINION AND ORDER

Plaintiff Robert DeMarco (plaintiff or “Mr. DeMarco”) has

 
filed a motion for summary judgment [19] seeking judicial review
of the final decision of the Commissioner for Social Security
(“Commissioner”). The parties consented to the jurisdiction of
this Court pursuant to 28 U.S.C. § 636(c). For the reasons set
forth below, Mr. DeMarco’s motion for summary judgment is
denied. The Social Security Administration’s January 4, 2012,
decision is affirmed.

I. PROCEDURAL HISTORY1

Plaintiff, Ronald DeMarco, initially applied for Social
Security Disability Benefits on July 10, 2000. Record at 106-
08. In his application, he alleged that he became disabled on
December 5, 1997 due to constant back pain following a
                                                            
1  As the Bates numbers on the administrative record in this case are not
consistent, the record cites in this opinion refer to the PageID # listed on
the top right of each page of the record.  

 



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laminectomy, as well as arthritis in his hands. R. 106. The
Social Security Administration (“SSA”) denied his claim on
October 5, 2000, finding that he still possessed the ability to
perform light work. R. 80. Mr. DeMarco entered a protective
filing to secure his application date with the SSA on July 29,
2002, he then entered a second application for disability
benefits on November 27, 2002. R. 114-17. Mr. DeMarco’s
application was denied initially on February 5, 2003, and upon
reconsideration on March 13, 2003. R. 84, 91. On March 25,
2003, Mr. DeMarco filed a written request for a hearing. R. 95.

Administrative Law Judge (“ALJ”) John L. Mondi held the

hearing on August 19, 2004. R. 67-69. The ALJ issued his
opinion denying benefits on October 25, 2004. R. 70-76. On
November 2, 2004, Mr. DeMarco requested that the Appeals Council
review the ALJ’s decision. R. 55. The Appeals Council denied
Mr. DeMarco’s request for review on November 15, 2005. R. 45.
Mr. Demarco appealed the decision to the District Court.

The District Court remanded the matter to the SSA. R. 426.
The Appeals Council remanded the case to an ALJ on April 4, 2008
for rehearing. R. 405. ALJ Mondi held a hearing on October 7,
2008. R. 445. On November 4, 2008, ALJ Mondi issued a decision
denying benefits to Mr. DeMarco. R. 389. Mr. DeMarco appealed
the decision to the District Court for a second time. The

 



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District Court again remanded the case to the SSA on March 17,
2011. R. 503.

The Appeals Council once more remanded the case to an ALJ
on June 6, 2011. R. 569. ALJ John Kraybill held a hearing on
September 21, 2011. R. 614. On January 4, 2012, the ALJ issued
a decision denying benefits to Mr. Demarco. R. 486. On March
13, 2012, Mr. DeMarco appealed the decision to the District
Court. R. 2. The parties consented to vest jurisdiction in a
Magistrate Judge, and it was transferred to this Court on August
14, 2012. R. 675. The case is currently before the Court on
Mr. DeMarco’s motion for summary judgment, in which, Mr. DeMarco
seeks the Court to award him benefits, or in the alternative,
remand the case for further consideration. R. 755-64.
II. FACTUAL BACKGROUND

Mr. DeMarco’s date of birth is August 4, 1952. R. 58. He

was employed as a diesel mechanic for Global Van Lines in the
1970’s. R. 367. Mr. DeMarco was also employed as a truck
driver and automobile mechanic for Pell’s Express between June
of 1979 and April 1, 1996. R. 342, 366. He initially hurt his
back while working for Pell’s Express in December 1994. R. 343.
On December 5, 1997, Mr. DeMarco underwent a decompressive
lumbar laminectomy and microlumbar discectomy. R. 80. Mr.
DeMarco testified that he began a small engine repair business
in 1996, which he ran until 2002. R. 340-41. He also plowed

 



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snow in the winter of 2001-2002. R. 339. Mr. DeMarco’s date
last insured was September 30, 2002. R. 8.
III. MEDICAL EVIDENCE


A. Dr. Boury
Dr. Boury, Mr. DeMarco’s neurological surgeon, noted that
Mr. DeMarco first injured his back while attempting to lift the
rear door of a trailer while working for Pell’s Express in
December 1994. R. 242. Mr. DeMarco’s physical therapist noted
back pain on December 28, 1994. R. 199. Dr. Boury noted that,
on January 4, 1995, Mr. DeMarco had been experiencing radiating
left buttock and posterior thigh pain which went almost halfway
down the calf. R. 242. In the MRI report dated February 6,
1995, a radiologist diagnosed degeneration of the L5-S1 disc
with moderate bulging at L5-S1. R. 200. On August 28, 1995,
Dr. Boury noted that Mr. DeMarco was still experiencing sharp
pain in his right buttock, through the thigh, down to the calf.
R. 240. Dr. Boury also noted that Mr. DeMarco was experiencing
toothache-like symptoms in both calves, primarily on the right
side, and that these symptoms occured more readily when he is
seated. Id.

On September 7, 1995, Dr. Boury found that Mr. DeMarco was

“entitled to have symptoms of back pain” which can get worse
when he “sits down for any length of time.” R. 239. On
November 17, 1997, a radiologist found L4-5 disc herniation on

 



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the left as well as L5-S1 subligamentous bulging on a lumbar
MRI. R. 201. During this visit, Dr. Boury noted that Mr.
DeMarco was experiencing severe back pain, as well as pain
radiating down his buttock bilaterally. R. 210. Dr. Boury also
noted that straight leg raising was “markedly limited at right
over left” and Mr. DeMarco had a “very antalgic gait,” while
also noting severe back pain which was improved by bed rest. R.
238. Dr. Boury also had the impression that Mr. DeMarco had
lumbar radiculopathy during this visit. R. 230.

On December 2, 1997, before undergoing back surgery, Dr.

Boury informed Mr. DeMarco about the possibility of disc
herniation recurrence being “about 15%.” R. 222. Dr. Boury
also noted that this was a concern considering Mr. DeMarco’s job
repairing small engines at the time. Id. Dr. Boury performed
the operation on December 5, 1997. It consisted of a
decompressive lumbar laminectomy of L4 and L5 bilateral,
microlumbar discectomy at the level of L4-L5, on the right side,
exploration of the L5-S1 disk space which found a herniated disc
at the level of L5-S1 on the left and a microlumbar discectomy
at the level of L5-S1 on the left. R. 205.

Mr. DeMarco had his first postoperative follow up visit on
December 15, 1997. R. 236. Dr. Boury noted that he was doing
extremely well and was taking one painkiller a day. Id. On
January 26, 1998, Dr. Boury noted that Mr. DeMarco was

 



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progressing, but had some stiffness in the morning “that one
would expect following the surgery.” R. 235. On June 29, 1998,
Mr. DeMarco was overall very pleased with the resolution of his
bilateral buttock pain. R. 234. At the time, Mr. DeMarco was
complaining of localized back pain, which was remedied by
Tylenol with codeine. Id.

On January 21, 1998, Mr. DeMarco was admitted to the

Central DuPage Hospital emergency room. R. 218. Mr. DeMarco
was experiencing nausea and tingling to both hands which
resolved itself prior to arrival. Id.

B. Disability Determination Services
On September 1, 2000, Dr. Velis, a physician for the Bureau

of Disability Determination Services (“DDS”), noted that Mr.
DeMarco was in moderate distress during his medical examination.
R. 248. Mr. DeMarco was 5 feet, 8 inches, tall and weighed 218
pounds at the time of the examination. R. 247. Dr. Velis also
noted that Mr. DeMarco had a limited range of motion and a
positive straight leg raise test with marked paravertebral
muscle tenderness and spasms with occasional radicular symptoms
radiating to the gluteal region. R. 248. A radiologist with
the DDS indicated that Mr. DeMarco had “minimal degenerative
changes with occasional osteophytes at the vertebral endplates,”
and slight sclerosis in the lower lumbar spine along with

 



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laminectomy at L4 and L5 with minimal narrowing at the L4-L5 and
L5-S1 intervertebral spaces. R. 251.

C. Functional Capacity Assessments
A Residual Functional Capacity (“RFC”) Assessment was

conducted on September 26, 2000. R. 252. The assessor found
that Mr. DeMarco was capable of occasionally lifting 20 pounds,
and frequently lifting 10 pounds. R. 253. Mr. DeMarco was also
found to be incapable of climbing a ladder, rope or scaffold. R.
254.

A second RFC Assessment, conducted two and a half years

later, on March 13, 2003, held different results. R. 269. The
second assessor found that Mr. DeMarco was capable of
occasionally lifting 50 pounds and frequently lifting 25 pounds.
R. 270. The assessor also noted that Mr. DeMarco’s ability to
sit was limited, he was required to periodically alternate
between sitting and standing to relieve pain or discomfort
resultant of his surgery. Id. Mr. DeMarco was limited to
occasionally stooping, crouching and crawling. R. 271. The
assessor also noted that Mr. DeMarco was responding to his
medication. R. 274.

D. Dr. Blas
Mr. DeMarco initially sought treatment with Dr. Blas, a

pain physician, on March 25, 2002. This was the first medical
treatment that Mr. DeMarco had sought for his back since being

 



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treated by Dr. Boury. R. 267-68. Dr. Blas noted that Mr.
DeMarco’s back pain was only controllable by consuming oral
medication between March 25, 2002 and January 6, 2003. R. 260-
268. Dr. Blas prescribed
Mr. DeMarco Percocet from April 4, 2002 to June 26, 2002. R.
263-67. He found that Mr. DeMarco was experiencing low back
pain, which was controlled by either M.S. Contin or Oxycontin
from December 12, 2002 to June 11, 2004. R. 260-68, 271-97,
303-321. On December 12, 2002, Dr. Blas indicated that Mr.
DeMarco’s pain was controlled using M.S. Contin. R. 284.
However, on March 24, 2003, Mr. DeMarco reported to Dr. Blas
that he was suffering from a great deal of pain. R. 282.

On August 27, 2003, Dr. Blas drafted a narrative report on

Mr. DeMarco’s medical condition. R. 278. Dr. Blas indicated
that Mr. DeMarco’s pain was not being controlled by either Soma
Compound or Vicodin. Id. He also noted that Mr. DeMarco had
pain in the lower back and his straight leg raising test showed
pain, moderate to severe at 30 degrees extension when both lower
extremities were extended. Id. Dr. Blas diagnosed Mr. DeMarco
with radiculitis, chronic and irritative L4-L5, L5,S1 bilateral
secondary to epidural adhesions and Postlaminectomy Syndrome,
lumbar. R. 278. Dr. Blas stated that he was seeing Mr. DeMarco
every other month. Id.

 



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On December 4, 2003, Dr. Blas noted that Mr. DeMarco was
able to do chores and was learning to tolerate his pain. R.
307. Dr. Blas’s appointment notes develop a steady progression
of increasingly frequent and worsening pain. R. 260-68, 271-97,
303-321. Dr. Blas was operating off of a diagnosis of
radiculitis and post-laminectomy syndrome. Id.

At the time of the 2004 ALJ hearing, Dr. Blas had

prescribed Mr. DeMarco 20mg Oxycontin twice a day for pain,
Celebrex every day for arthritis, Valium at night for sleep as a
muscle relaxant, Soma Compound 2 to 3 times a day for spasms and
Naproxen 3 times a day as needed for elbow pain. R. 187.
Evidence entered at the 2011 ALJ hearing included Dr.

Blas’s prescriptions for 10mg Valium twice per day, Vicodin as
needed up to twice per day, 20mg Oxycontin as needed if Vicodin
does not work and Soma three times per day and at bedtime. R.
607-10.

E. Dr. Choi
The record contains notes from Dr. Choi, the physician that
treated Mr. DeMarco’s right elbow. R. 299. On April 21, 2004,
Dr. Choi noted that Mr. DeMarco was in no duress during his
visit. Id. Dr. Choi found that Mr. DeMarco’s range of motion
in the right hand and the wrist was normal and he had full range
of motion in his right shoulder. Id. However, “neurovascular
examination distally demonstrate[d] some mild grip weakness

 



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compared to his nondominant left side.” R. 299-300. Dr. Choi
noted degenerative change with joint space narrowing and
ostephyte formation on Mr. DeMarco’s elbow. R. 300-01. Dr.
Choi’s impression was that Mr. DeMarco had osteoarthritis in his
right elbow as well as median nerve neuropathy. R. 300.

Additional notes from Dr. Choi were provided for the 2008

ALJ hearing. R. 439-444. On May 11, 2005, Dr. Choi’s
impression was that Mr. DeMarco was suffering from
osteoarthritis in the right elbow as well as ulnar neuropathy.
R. 441. On September 12, 2007, Dr. Choi’s impression was that
Mr. DeMarco was suffering from osteoarthritis with limited
motion in the right elbow with probable ulnar neuritis at the
elbow. R. 439.
IV. PREVIOUS HEARINGS



A. 2004 Hearing With ALJ Mondi, Ruling and Appeal

The 2004 hearing occurred before ALJ Mondi. Mr. DeMarco
appeared, represented by counsel, and a vocational expert was
also present at the hearing. R. 332. Mr. DeMarco testified
that he was 52 years old at the time of the hearing. R. 338.
He was married with one 16 year old child living at home. Id.
He has a ninth grade education and he took the GED examination,
but had no record of passing it. R. 339. He received a degree
in automotive from Greer Technical Institute. R. 366.

1. Testimony of Ronald DeMarco

 

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His work history consisted of being a truck driver and

automobile mechanic for Pell’s Express from June of 1979 through
April 1, 1996. R. 342, 366. He was also a diesel mechanic for
Global Van Lines in the 1970’s. R. 367. Mr. DeMarco was also
self-employed performing small engine repair from 1996 until
2001 or 2002; he plowed snow one winter in either 2001 or 2002.
R. 339-41. He began repairing engines before his back
operation, however, after the operation, he was unable to
continue with the work due to pain. Id.

Mr. DeMarco initially hurt his back while working for
Pell’s Express in December of 1994. R. 343. Following his
injury, he was diagnosed with bulging disks and was relegated to
light duty while working for Pell’s Express until his
termination on April 1, 1996. R. 343-44. Following his
termination he was unable to find work due to his back problems.
R. 345. While he was self-employed repairing engines, he would
start his work day at 9:00 AM and by noon, he would begin
feeling pain, which would require him to take his medication.
R. 359. Mr. DeMarco stated that he would force himself through
the pain many times to finish repairing the engines. Id. He
would finish around 6:30PM or 7:00PM. Id. After returning home
from work, he was unable to stand up after sitting down and
would be forced to crawl up the stairs. Id. He worked like
this five to six days a week. Id.

 

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Mr. DeMarco was prescribed Vicodin at the time of this

hearing and it was “just taking the edge off” of the pain. R.
345. Mr. DeMarco testified that he underwent disc laminectomy
for three disks. Id. After the surgery, he underwent physical
therapy and took medication as continuing treatment. Id. He
still experienced pain in his back at the time of the hearing.
R. 346. He stated that he experienced pain going down either
the right or the left leg at the time of the hearing. R. 361.
He also alleged that he was unable to walk two blocks at the
time of the hearing. R. 348. He said he may be able to walk a
block, however, after walking a block, he experiences painful
back spasms. R. 364.

Mr. DeMarco did not believe he could walk for two hours out
of an eight hour day continuously or not. R. 368. He testified
that his ability to stand at the time of the hearing was
dependent on the medication he was taking at the time, his
ability to sit for periods of time is likewise determined by the
medication he is taking. Id. He did not believe he could sit
for an eight hour day if he were allowed to stand periodically.
Id. He also stated that he did not believe he would be able to
stand for two hours of an eight hour day on a consistent basis.
Id.

Mr. DeMarco alleged pain in his left elbow in conjunction
with his back pain. R. 346. At the hearing, Mr. DeMarco was

 

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unable to extend his left arm to make it parallel with a table
that he had placed it on. Id. He stated that he was right
handed and had lost a substantial amount of strength in his
right hand. Id. He alleged that he experiences a shooting pain
through the elbow in his right arm and drops things with his
right hand. R. 346-47. He alleged that he is unable to reach
with his right arm “[b]ecause it doesn’t go up.” R. 360. Mr.
DeMarco testified that he had also been diagnosed with
depression. R. 348.

At the time of the 2004 hearing, Mr. DeMarco was taking
Oxycontin, Celebrex, Valium, Soma Compound and Naproxen. R.
349. Mr. DeMarco testified that he was experiencing side
effects from his medication. R. 350. He stated that he was
addicted to Oxycontin at the time of the hearing, and that it
caused him blurred vision, affected his concentration and
required him to sit down after taking it. Id. While under the
effects of Oxycontin, he feels as if he is drunk, he is unable
to drive and would be unable to operate machinery. R. 358.
Oxycontin’s effect on his concentration is the reason he stopped
his small engine repair company. Id. He testified that his
intake of Oxycontin was not exceeding the amount prescribed by
his physician. R. 355-56.

Mr. DeMarco testified that his medications make him sleep,
specifically the Oxycontin, and Valium when taken in conjunction

 

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with Oxycontin. R. 362. The day before the hearing, he had
slept for 18 hours. R. 363. He testified that Dr. Blas had
also prescribed him Vicodin and Valium in the past. Id. At the
time of the hearing, he was taking Oxycontin on a daily basis
and was taking Valium as needed for pain when the Soma Compound
was not sufficient. R. 362. He was taking Valium 3 to 4 times
a week or more. Id. He also stated that his medications were
affecting his memory. R. 363. Sometimes he would have problems
finishing tasks or even realizing that he was doing a task. Id.

Mr. DeMarco testified that he has problems taking care of

himself and performing tasks around the home. R. 352. He
testified that he has had this problem since his back operation
on December 5, 1997. Id. He is unable to tie his shoes while
wearing them. R. 360. He was having problems bending his torso
at the time of the hearing, and could not bend at the waist. Id.
He was able to drive a car, cut his grass with a riding mower,
however, his son had to do the trimming in the yard, because he
was unable to hold a weed whacker without dropping it. R. 352-
53. Mr. DeMarco testified that for exercise, he was able to do
stretches in the morning, but was unable to walk distances,
though he is able to walk around his house. R. 353.

In regards to pain, Mr. DeMarco testified that at the time
of the trial he was at an 8.5 on a 0 to 10 scale of pain, where
10 is the worst pain. R. 354. He said that his pain level

 

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never drops below a 7 on this scale. Id. To alleviate pain
during the day, he lays on his couch at an angle, because
sitting straight induces pain. R. 360. Sitting causes pain
inducing spasms, which are less painful when using medication.
R. 364. Sleep and Valium also help alleviate the pain. R. 360-
61. He naps for 2 to 3 hours a day. R. 363.

Mr. DeMarco testified that Dr. Boury informed him that he
had scar tissue built up in his spine, which the doctor wished
to remove with a RACZ procedure. R. 357. Mr. DeMarco did not
wish to undergo this procedure, because he did not want to be
“opened up again,” and subjected to a “full blown operation,” or
the recovery. R. 356-57. He also testified that one of his
doctors had informed him that he had arthritis throughout his
back. R. 364.



Mr. James Breen, a vocational expert who had reviewed Mr.

2. Testimony of Vocational Expert

DeMarco’s file and heard his testimony before the ALJ, also
provided testimony at the 2004 hearing. R. 365-88. Mr. Breen
determined that a hypothetical person with limitations similar
to Mr. DeMarco’s would be able to return to all of his past
relevant work based on the RFC Assessment taken on March 3,
2003. R. 372. He stated that, if a hypothetical person with
these limitations was required to take more than 10 minutes per
hour to stretch, or if they had a 10 pound lifting limitation,

 

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they would be unable to perform any of Mr. DeMarco’s previous
truck driving jobs. R. 379, 384. He stated that, if the person
was unable to fully extend their right arm, so as to shift
gears, they would also be unable to perform any of Mr. DeMarco’s
previous truck driving jobs. R. 384.

Mr. Breen testified that, if the person were required to

stand for more than 10 minutes an hour, or were limited to
lifting no more than 10 pounds, they would be unable to perform
small engine repair. R. 381, 84. If the person were unable to
maintain concentration throughout an 8 hour day, they would be
unable to perform any job. R. 381. Based on the RFC assessment
taken on September 26, 2000, a hypothetical person with
limitations similar to those outlined in the assessment would
not be able to return to any of Mr. DeMarco’s past relevant
work. R. 374.

Mr. Breen stated that there was a wide range of unskilled
occupations which a person with limitations based on the 2000
RFC Assessment could perform in the light work group category.
R. 374. The jobs available to a person with those limitations
would not change if that person had a right arm impairment which
limited extending the arm and restricted lifting with the arm to
no more than 10 pounds. R. 375. He stated that if a person had
all of the limitations which Mr. DeMarco alleged to have in his
testimony, they would be unemployable. R. 376. Mr. Breen

 

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testified that, if the only limitation alleged by Mr. DeMarco to
be placed upon the hypothetical person was his inability to
bend, that it would preclude the hypothetical person from truck
driving, small engine repair and one of the three hypothetical
jobs indicated by Mr. Breen in his analysis. R. 386-87. If the
person had limitations on periodic standing and sitting or
concentration it would interfere with many of the positions
which he had indicated were available for a hypothetical person
with Mr. DeMarco’s limitations. R. 381-83.



On October 25, 2004, ALJ Mondi issued an unfavorable

3. 2004 Decision and Appeal

decision. R. 67-76. ALJ Mondi found that Mr. DeMarco did not
have an impairment that met or medically equaled a listed
impairment. R. 75. ALJ Mondi also found that Mr. DeMarco’s
allegations regarding his symptoms were not credible in
establishing disabling limitations, especially his work
activities. R. 75. In addition, ALJ Mondi found that Mr.
DeMarco was unable to perform any past relevant work. Id. The
Appeals Council denied Mr. DeMarco’s Request for Review. R. 5.
Mr. DeMarco then appealed his case to the District Court.
R. 419-26. On August 16, 2007, the District Court reversed the
ALJ’s decision and remanded the matter to the Social Security
Administration for further proceedings. R. 426. The Court
found that the ALJ had not indicated the basis for rejecting Mr.

 

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DeMarco’s explanations, and therefore, the path of his reasoning
for the rejection could not be traced. Id. The Court found
that, though there may be enough evidence in the record to
support the ALJ’s rejection of Mr. DeMarco’s alleged
limitations, the ALJ was required to explain whether Mr.
DeMarco’s allegations could or could not be accepted as
consistent with evidence. Id. The Court held that these errors
made it necessary for the ALJ to reassess Mr. DeMarco’s
credibility and RFC. Id.


B. 2008 Hearing with ALJ Mondi, Ruling and Appeal
On remand, a supplemental hearing was held before ALJ Mondi
on October 7, 2008. R. 392. Mr. DeMarco was represented by his
attorney, Barry A. Schultz, at the hearing. R. 447. Also
present for the hearing was Thomas Gusloff, a vocational expert.
Id. Mr. Schultz gave a brief opening statement at the hearing.
R. 449. He claimed that Mr. DeMarco did not undergo the RACZ
procedure, because he was not only afraid of being subjected to
another operation, but he would also have to pay for the
procedure out of pocket. Id. He also brought attention to Dr.
Blas’s diagnoses of radiculitis, as well as post-laminectomy
syndrome. R. 450. Mr. Schultz pointed out that Mr. DeMarco’s
positive straight leg raising tests resulted in pain in the
extremities. Id. Mr. Schultz made the argument that, because
Mr. DeMarco had turned 50 years old by his date last insured,

 

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Mr. DeMarco should be found disabled under the rule if he were
limited to sedentary work. R. 451.

1. Testimony of Ronald DeMarco


At the 2008 hearing, Mr. DeMarco testified that he was now
divorced. R. 451. He clarified that he had attempted to plow
snow in 2003, but was unable to do it because it aggravated his
back. R. 452. He said that he was only able to plow snow two or
three times. R. 453. He had to keep pulling over and getting
out of the truck, because the pain kept getting worse, and he
was unable to take any medication to control it because he was
driving. Id.

Mr. DeMarco testified that the reason he had closed his

small-engine repair company, was because he was unable to stand
and work on things. R. 453. He testified that, as the pain
would grow worse, he would take more medication, and it made him
fall behind in his repairs. Id. Mr. DeMarco testified that his
business ran three years at a loss without generating any
profits. R. 454.

Dr. Blas told Mr. Demarco that recovery from the RACZ

procedure would take about six months. R. 458. Dr. Blas told
him that the operation does not work on some people and that the
risks were basically the same as his first back surgery. Id.
Mr. DeMarco did not have health insurance at the time that Dr.
Blas recommended the procedure. Id.

 

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Mr. DeMarco said the medications which were most successful

in alleviating his pain were the ones he was prescribed at the
time of the hearing, Oxycontin, Valium and Soma Compound. R.
459. Mr. DeMarco stated that, when he was on M.S. Contin, he
would have to take it with the Valium and Soma Compound in
combination to have an effect on his pain, this occurred up to
four times per week. R. 459-60. He testified that when taking
that combination of drugs, it would make him a “zombie” by
robbing him of his thought process and concentration and making
him want to sleep. R. 459. Mr. DeMarco said that, when taking
Oxycontin, he had similar side effects, causing him to want to
lie down and making him feel like a “zombie.” R. 461.

Mr. DeMarco testified that his pain in 2001-2002 was easily

aggravated by sitting, it would cause his back to tighten up
before getting progressively worse and spasming. R. 462. He
said sitting in his jacuzzi tub would help alleviate the pain.
R. 463. He said exercise, work hardening and physical therapy
made his pain worse and did not help alleviate his pain. Id.
He said that in 2001-2002, he was unable to stand for longer
than 10 minutes without experiencing shooting pains going down
his legs. Id. On the day of the hearing, he had not taken his
pain medication, because he is unable to drive under the effects
of the medication. R. 464.

 

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Mr. DeMarco lived alone during the 2001-2002 timeframe and
doing chores aggravated his back pain. R. 464-66. Activities
which aggravated his pain included tying his shoes, doing dishes
and doing laundry. R. 465. An hour or two after doing these
activities, Mr. DeMarco would experience pain down his legs,
back spasms and general pain. Id. He was also having trouble
bending, and if he dropped something, he would have to either
sit down or get down on his knees to pick it up. Id.

2. Testimony of Vocational Expert


Mr. Gusloff, a vocational expert, testified at the 2008

hearing that Mr. DeMarco’s self-employment in small engine
repair or his position plowing snow would not count as past
relevant work, because there was no evidence in the record to
demonstrate that he had participated in those roles at a
substantially gainful activity level. R. 471. Mr. Gusloff said
that a hypothetical person under the limitations which were
assessed against Mr. DeMarco in his first ALJ hearing would be
able to find employment, including that as a delivery truck
driver and other jobs related to truck driving. R. 472.

A person with the same limitations, but who was limited to

light work would not be able to perform any of Mr. DeMarco’s
previous jobs, as they were all at the medium level, however
there were other positions where Mr. DeMarco’s experience as a
mechanic would allow him to be employable. R. 473. Mr.

 

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DeMarco’s attorney objected to this testimony, because there had
been no transferable skills found in the past and transferable
skills were not remanded for reconsideration. R. 473.

Mr. Gusloff said a person with a right elbow impairment

that precluded sustained repetitive manipulation with the right
arm, who was limited to less than frequent use of the arm, would
be limited to light or sedentary work. R. 474-75. Mr. Gusloff
testified that a person with all of the limitations alleged by
Mr. DeMarco, especially in regards to the effects of medication,
would not be employable. R. 475.

Mr. Gusloff testified that a hypothetical person who was

required to miss more than one unscheduled hour per week of
work, would eventually not be employed. R. 476-77. He also
testified that, if he would have to take off two hours during
the workday, because he had to lie down or could not
concentrate, he would not be able to maintain employment. R.
477. If a person were required to avoid machinery, jobs related
to small engine repair skills would not be possible. R. 477-78.
Some of the positions available to the hypothetical person may
not accommodate the alternating sitting and standing limitation
which was present in Mr. DeMarco’s record. R. 480. He also
testified that if the person had a limit of standing for at most
10 minutes, they would be placed in a sedentary category. R.
482.

 

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3. 2008 Decision and Appeal


ALJ Mondi issued an unfavorable decision denying benefits
on November 4, 2008. R. 389. ALJ Mondi found that Mr. DeMarco
had not engaged in substantial gainful activity after the
alleged onset date of his disability. R. 394. Mr. DeMarco did
not have an impairment or combination of impairments that met,
or medically equaled, a listed impairment. Id. Mr. DeMarco had
the functional capacity to perform medium work “not requiring
more than frequent balancing, kneeling or climbing; more than
occasional stooping, crouching or crawling; and subject to a
need to be able to periodically alternate between sitting and
standing to relieve low back pain.” R. 395. ALJ Mondi found
that Mr. DeMarco’s statements regarding the intensity,
persistence and limiting effects of his symptoms were not
credible when compared to the objective evidence. R. 396

ALJ Mondi found that Mr. DeMarco’s ability to conduct small
engine repair with his hands for several years through his date
last insured, indicated that his current debilitation was not
significantly limiting until after his date last insured. R.
397. He found Mr. DeMarco’s testimony regarding the side
effects of his medication to not be credible. Id. He
determined that Mr. DeMarco’s alleged side effects were not
significant enough to preclude him from repairing small engines
for several years, driving a car or cutting his grass with a

 

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riding mower, indicated that they were not so severe as to
preclude all work. Id. ALJ Mondi adopted the RFC assessment
dated March 13, 2003 which indicated that Mr. DeMarco could
perform a restricted range of medium work through his date last
insured, because it was supported by the record as a whole, as
well as Mr. DeMarco’s work activities. Id.

Mr. DeMarco sought judicial review in the District Court.
R. 504-559. On March 17, 2011, the District Court reversed the
decision of the ALJ and remanded the matter to the Social
Security Administration. R. 558. The Court remanded due to a
mischaracterization of Mr. DeMarco’s testimony regarding why he
closed his small engine repair business, as well as a statement
by the vocational expert. R. 550, 553.


C. 2011 Hearing With ALJ Kraybill, Ruling
ALJ John Kraybill held a third hearing on September 21,

2011. R. 569, 614-68. Mr. DeMarco was represented by his
attorney, Barry Schultz; also present were Dr. James McKenna, a
medical expert; Edward Pagells, a vocational expert; and Sheryl
Bigbee, a hearing monitor. R. 616.

Admitted into evidence at this hearing were statements of

FICA income demonstrating that in 1997 and 1998, Mr. DeMarco
earned $0.00, and in 1999, $2,958.00. R. 594. The statements
also indicate that Mr. DeMarco had earned $0.00 in yearly
earnings after 1999, except for a $2,774 profit in 2001. R.

 

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118, 597. Also introduced into evidence was a Blue Cross Blue
Shield policy statement which indicated that, between June 2004
and June 2006, Blue Cross did not provide coverage for the RACZ
procedure which was recommended for Mr. DeMarco. R. 611-613.
The evidence also included up to date prescriptions of Mr.
DeMarco. R. 607-10.

1. Testimony of Ronald DeMarco


Mr. DeMarco testified that at the time of the 2011 hearing,

he was living with his ex-wife. R. 620. He and his wife were
divorced, though they continued living in the same house. Id.
When asked about his “phobia with hospitals[,]” Mr. DeMarco
stated that he didn’t “like hospitals any more than anybody else
does” and that he “never liked or enjoyed being operated on.”
R. 622-23.

Mr. DeMarco testified that the main reasons that he was not

able to return to work between 1997 and 2002 was because his
range of motion “went right out the window” after the operation
and his back “just steadily got worse[.]” R. 623. The
operation affected his ability to stand, sit and lift things.
Id. He said his back is “always in spasms,” but that he gets
some relief during the day when he takes his medication. R.
623-24. In regards to his medication, Percocet “didn’t do
anything” for him, and Oxycontin worked best for treating the
pain, but it caused him to sleep. R. 624.

 

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Mr. DeMarco said the reason he did not want to undergo the
RACZ procedure was because he could not afford it, as he did not
have insurance. R. 625. Mr. DeMarco also indicated that, after
his first back operation, he could not appropriately maintain
his personal hygiene for a sixth month period due to the pain
and other effects of the operation. R. 626.

The pain he experiences after standing or sitting too long
begins in his middle to upper back, travels down and through his
buttocks to either or both legs and also causes his back to
“tighten up into a knot[.]” R. 626. He described the pain as
if “someone took a hot poker and stuck it through my [cheek] all
the [way] down to my toes and it’s just like a burning, aching
feeling, hard to describe, sharp pain.” R. 626-27. After his
surgery, he did experience relief at first. R. 627. In July of
2000, he could sit, stand or walk for 15 minutes at a time,
prior to this, he would experience pain that would cause him to
lay down or reposition. Id. He would regularly lay on the
floor to alleviate his pain. Id. While working for his engine
repair business, he would only be able to work for 15 minutes at
a time before he would have to sit or lay down, and he was only
able to work for a half hour to an hour and a half every day.
R. 629.

at the time of the hearing and that his range of motion for

Mr. DeMarco stated that he was unable to bend at the waist

 

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bending had been affected by the surgery. R. 631. He said his
back pain affected his ability to sleep at night and caused him
to wake up stiff and mentally “cloudy” from the medication, the
cloudy feeling lasting for roughly an hour after waking up. R.
632. He stated that he had trouble with climbing stairs, he
needs to use a handrail to climb stairs and can only climb them
slowly. R. 633.

Mr. DeMarco also complained of problems with his right arm

2. Testimony of Medical Expert

in January 2003. R. 629. He stated that the problem began
years before 2003, but it had grown progressively worse. R. 629-
30.



Dr. James McKenna, testified at the hearing. R. 636. Dr.
McKenna was board certified in internal medicine and pulmonary
disease and licensed to practice in Illinois at the time of the
hearing. Id. He had never personally examined Mr. DeMarco, and
his opinion was based upon a review of Mr. DeMarco’s file. R.
637. Dr. McKenna said Mr. DeMarco’s medical record indicated
his back problems began in 1995. R. 639.

Dr. McKenna stated that Dr. Boury’s notes from December 15,

1997 indicate that Mr. DeMarco was “basically doing amazingly
well and recovering as one would expect.” R. 643. He took note
of appointments on January 26, 1998 and June 29, 1998, which
demonstrate Mr. DeMarco’s progress and his return to work in his

 

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garage with occasional complaints of lower back pain which
responded to Tylenol with codeine. R. 643-44.

Dr. McKenna also took note of the four year gap in

Dr. McKenna stated that Mr. DeMarco’s situation is one of

treatment notes from 1998 to 2002, when Mr. DeMarco began to see
Dr. Blas in 2002. Id. He testified that he cannot explain how
Mr. DeMarco went from a successful surgery outcome to his then-
present situation based on the record he was presented with. R.
645. He did not have “the evidence to show why he deviated from
the successful post op course[,]” which he said was “really the
real crux of the matter.” Id.

chronic, unexplained pain. Id. It is possible that the pain is
the result of the operation Mr. DeMarco underwent, however for
seven months following the surgery, Mr. DeMarco was still doing
well. Id. He could not give Mr. DeMarco credit for having
arachnoiditis, which may explain the symptoms which were
occurring in his back, because he did not have the evidence to
say that it was a possibility. R. 646. Dr. McKenna also
testified that the only “rock-solid” evidence of elbow problems
came after the date last insured, on April 6, 2004. Id. Dr.
McKenna opined that the record indicated the possibility of
narcotic dependence. R. 646-647.

and September 30, 2002, Mr. DeMarco’s impairments, or

Dr. McKenna also testified that, between December 5, 1997

 

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combination of impairments, would not meet or equal the
listings. R. 647. However, during that time, limitations would
be imposed on the RFC. Id. The limitations would at least
limit him to medium loads, consisting of 20 pounds occasionally
and 10 pounds frequently, no use of ladders, ropes or scaffolds.
R. 648. Ladders, stairs and ramps shorter than five or six
steps limited to occasional use only, due to pain. Id. Mr.
DeMarco would be able to balance frequently, if not under the
constant influence of narcotics, manipulative would be limited
to occasionally, and limited to occasional exposure to extreme
cold and no lifting 20 pounds at arm’s length. R. 648-49.

Dr. McKenna opined that Mr. DeMarco should avoid exposure
to vibrating vehicles, equipment or machinery. R. 649. He
would, however, be able to stand and walk for eight hours at a
time. R. 650. But he would not be able to operate, or be
around, moving machinery where one may have to take rapid
evasive action. R. 650-651.

could be an indication of sciatica or radiculopathy. R. 651.
Dr. McKenna stated that, if there were “solid evidence” of
radiculopathy, he would limit Mr. DeMarco to the sedentary
level, and would be limited to standing and walking to six hours
and less than 30-33 percent of occasional. R. 652.

Dr. McKenna declared that a positive straight leg test

 

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Mr. DeMarco’s reduced deep tendon reflexes could be

indicative of spinal disease. R. 653. Dr. McKenna believed
that Dr. Blas diagnosed Mr. DeMarco with radiculitis for
insurance reasons. R. 653-654. Dr. McKenna incorporated Mr.
DeMarco’s chronic pain complaint in determining his RFC
limitations, however he did not understand why Mr. DeMarco had
pain. Id. He explained that post-laminectomy syndrome is
unexplained, ongoing, post-operative pain. R. 655-656. He
disagreed with statements made by Dr. Velis, the agency doctor,
who said there was a medical basis for Mr. DeMarco’s pain in his
medical report, because there was no clear evidence of pain. R.
656-657.

Dr. McKenna testified that Mr. DeMarco’s medication, when
taken in conjunction, have an increased effect on Mr. DeMarco.
R. 657. Someone using that combination of medication may need
to lie down due to their side effects. R. 658. However,
chronic use of the medication would lower their sedative
effects. Id.

Dr. McKenna declared that, if Dr. Blas’s range of motion

tests were accepted, Mr. DeMarco’s stooping ability would not be
affected, because he would be able to compensate for his spine
by using his hips. R. 660.




 

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3. Testimony of Vocational Expert


Mr. Pagella is a vocational expert who had reviewed Mr.

DeMarco’s records and listened to his testimony before the ALJ.
R. 661. He stated that Mr. DeMarco’s skills were industry
specific. R. 662. However, a person with the limitations Dr.
McKenna gave Mr. DeMarco would be able to perform work in a
light, unskilled position. R. 663. However, a person who had
to lie down during the work day, for even an hour, would be
unable to sustain employment. R. 664. He said that, if a
person would have to be off task, including breaks, for more
than 15% of the work day, they would not be able to sustain
substantial, gainful, activity. R. 664.

4. Ruling


ALJ Kraybill issued a decision denying benefits on January

4, 2012. R. 6-18. The ALJ found that Mr. DeMarco was last
insured on September 30, 2002. R. 8. He had not engaged in
substantial gainful activity between his onset date of December
5, 1997, and September 30, 2002. Id. The ALJ found that Mr.
DeMarco had degenerative disc disease and disc herniation
following his L4-L5 and L5-S1 decompression surgery. Id.
However, the ALJ found that Mr. DeMarco did not have an
impairment or combination of impairments that met or medically
equaled the severity of a listed impairment. R. 9. In his
decision, the ALJ took note of Dr. Boury’s and the State Medical

 

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Agency’s notes, as well as Mr. DeMarco’s four year gap in
treatment. Id.

The ALJ found that Mr. DeMarco had the RFC to perform light
work, except climbing long ladders, ropes and scaffolds. R. 10.
He found that Mr. DeMarco could occasionally climb ramps, stairs
and short ladders, stoop, kneel and crawl. Id. He should avoid
lifting 20 pounds at arm’s length and avoid exposure to extreme
cold and concentrated exposure to vibration. Id.

The ALJ found that Mr. DeMarco’s “impairments could

reasonably be expected to cause the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence
and limiting effects of these symptoms are not credible to the
extent that they are inconsistent with the RFC. R. 12. The
ALJ found that Mr. DeMarco was not under disability at any time
from December 5, 1997, the alleged onset date, through September
30, 2002, the date last insured. R. 18.
V. DISCUSSION


A. Applicable Law
An individual claiming a need for Disability Insurance

Benefits or Social Security Insurance must prove that he has a
disability under the terms of the Social Security
Administration. In determining whether an individual is
eligible for benefits, the social security regulations require a
sequential five step analysis. First, the ALJ must determine if

 

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the claimant is currently employed; second, a determination must
be made as to whether the claimant has a severe impairment;
third, the ALJ must determine if the impairment meets or equals
one of the impairments listed by the Commissioner in 20 C.F.R.
Part 404, Subpart P, Appendix 1; fourth, the ALJ must determine
the claimant’s RFC, and must evaluate whether the claimant can
perform his past relevant work; and fifth, the ALJ must decide
whether the claimant is capable of performing work in the
national economy. Knight v. Chater, 55 F.3d 309, 313 (7th Cir.
1995). At steps one through four, the plaintiff bears the
burden of proof; at step five, the burden shifts to the
Commissioner. Id.

the decision is supported by substantial evidence and is free
from legal error. 42 U.S.C. § 405(g); Steele v. Barnhart, 290
F.3d 936, 940 (7th Cir. 2002). Substantial evidence is “more
than a mere scintilla”; rather, it is “such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct.
1420, 28 L.Ed.2d 842 (1971). In reviewing an ALJ’s decision for
substantial evidence, the Court may not “displace the ALJ’s
judgment by reconsidering the facts or evidence or making
credibility determinations.” Skinner v. Astrue, 478 F.3d 836,
841 (7th Cir. 2007) (citing Jens v. Barnhart, 347 F.3d 209, 212

A district court reviewing an ALJ’s decision must affirm if

 

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(7th Cir. 2003)). Where conflicting evidence allows reasonable
minds to differ, the responsibility for determining whether a
claimant is disabled falls upon the Commissioner, not the
courts. Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990).

An ALJ must articulate his analysis by building an accurate
and logical bridge from the evidence to his conclusions, so that
the Court may afford the plaintiff meaningful review of the
SSA’s ultimate findings. Steele, 290 F.3d at 941. It is not
enough that the record contains evidence to support the ALJ’s
decision; if the ALJ does not rationally articulate the grounds
for that decision, or if the decision is not sufficiently
articulated, so as to prevent meaningful review, the Court must
remand. Id.



remanded, because the ALJ failed to properly evaluate all of the
evidence in light of his counsel’s argument and the testimony of
the medical examiner in determining Mr. DeMarco’s RFC; and he
failed to properly evaluate the credibility of Mr. DeMarco’s
allegations. Mr. DeMarco also argues that the case should be
remanded to the ALJ with instruction to award benefits to Mr.
DeMarco.



B. Analysis of Mr. DeMarco’s Arguments
Mr. DeMarco argues that the ALJ’s decision should be

 

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1. The ALJ’s Evaluation of the Evidence


Mr. DeMarco argues that the ALJ did not properly evaluate

the evidence within the record for two reasons. First, Mr.
DeMarco argues that the ALJ did not properly interpret Mr.
DeMarco’s previous diagnoses of radiculitis, and second, Mr.
DeMarco argues that the ALJ misinterpreted the results of the
straight leg test based on Dr. McKenna’s testimony.

Mr. DeMarco argues that the ALJ erred by not finding that

he had radiculitis, and thus should be limited to sedentary
work. Section 405(g) of the Social Security Act provides that
“the findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence shall be conclusive.”
42 U.S.C. § 405(g). “Substantial evidence must be more than a
scintilla but may be less than a preponderance.” Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Simply because a
plaintiff has been diagnosed with a medical condition does not
establish a functional limitation. Skinner, 478 F.3d at 845.
An “ALJ can reject an examining physician’s opinion only for
reasons supported by substantial evidence in the record; a
contradictory opinion of a non-examining physician does not by
itself suffice.” Gudgel v. Barnhart, 278 F.3d 467, 470 (7th
Cir. 2003).

Mr. DeMarco argues that he should be limited to a sedentary

RFC assessment. Mr. DeMarco argues that the diagnosis of

 

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radiculitis by Dr. Blas should limit Mr. DeMarco to a sedentary
RFC assessment, because of Dr. McKenna’s testimony that, if Dr.
McKenna had “solid evidence that [Mr. DeMarco] had
radiculopathy, [Dr. McKenna] would automatically limit him to
sedentary level[.]” R. 652.

The ALJ found that “there was no clinical evidence of

radiculopathy in the record.” R. 16. This finding was
supported by the testimony of Dr. McKenna. R. 654-56. The ALJ
did note that “Dr. Blas continually listed radiculitis (symptom)
as the working diagnosis on his records[.]” R. 16. However, a
diagnosis of radiculitis is not what Dr. McKenna testified was
required for an automatic limitation to sedentary work. He
testified that he would need “solid evidence,” which he did not
have based on the record before him. R. 652, 654-54. Because
the ALJ reasoned that Dr. Blas’ diagnosis was not supported by
evidence in the record, including Mr. DeMarco’s limitations, the
ALJ was proper in relying upon the opinion of Dr. McKenna in
determining that Mr. DeMarco had a light RFC capacity. Mr.
Demarco responds that the positive straight leg test is clinical
evidence of radiculopathy that the ALJ did not properly
evaluate.

Mr. DeMarco argues that the ALJ should not have concluded
that positive straight-leg raising tests, reduced reflexes and
reduced range of motion were not clinical evidence of

 

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radiculitis. Dr. McKenna testified that a positive straight leg
test is:

A meningeal sign in consult, it’s a sign of obstruction of
nerve root. And positive straight leg can be due to tight
hamstrings, can be due to a variety of situations but it
was looked at positive in this kind of setting, it would be
a sign of – it could be positive in paravertebral muscle
spasm or it can be a sign of stretching of the nerve root
with tenderness of that nerve root with tenderness of that
nerve root so that never in pain in that setting. So it
could [be] and indication of a kind of sciatica or
radiculopathy.


R. 651. Dr. McKenna also testified that reduced deep tendon
reflex in the ankle and knee “could be indicative of pathology
or it may not have any significance at all[.]” R. 653.

Mr. DeMarco argues that, pursuant to 20 CFR 404.1528,
straight leg-raising tests are considered objective evidence in
support of Mr. DeMarco’s claim. The ALJ took note of Dr.
McKenna’s testimony regarding the multiple potential causes of
positive straight-leg testing in his opinion. R. 15. Though
the test could objectively indicate several maladies, it is not
necessarily an objective sign of radiculopathy, as the plaintiff
has argued. As such, the ALJ’s determination that the positive
straight-leg raising tests were not indicative of radiculopathy
was proper.

Mr. DeMarco also argues that the ALJ acted improperly by

taking into account Dr. McKenna’s testimony regarding Dr. Blas’s
diagnosis of radiculitis for insurance purposes. However, the

 

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ALJ did not find that the diagnosis was used strictly for