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Zappia v. Astrue

February 19, 2009


The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge


Plaintiff Sheryl E. Zappia appeals the denial of her application for disability insurance benefits under the Social Security Act. This Court has jurisdiction. 42 U.S.C. § 405(g). The parties have filed cross-motions for summary judgment. Motion for Summary Judgment (d/e 12); Defendant Commissioner's Motion for Summary Affirmance (d/e 17). For the reasons set forth below, Zappia's Motion for Summary Judgment is ALLOWED and the Commissioner's Motion for Summary Affirmance is DENIED. The Decision of the Commissioner is reversed and the case is remanded.


Zappia was born on June 21, 1966. She attended high school and secured a GED. She later took some college courses. Certified Record of Proceedings before the Social Security Administration (d/e 9) (R.), at 399. She worked as an insurance claims adjuster, a telephone switchboard operator, a receptionist, and a general office clerk. In April 2003, she fell and injured her knee. Examination of her knee showed degenerative changes. R. 141. She was placed on crutches.

Zappia fell again while she was on crutches. During this fall, Zappia jammed the crutch into her right underarm. Thereafter, she developed significant pain in her right shoulder. Her orthopedic surgeon Michael Watson, M.D., suspected brachial plexopathy and referred Zappia to Edward A. Trudeau, M.D. On July 2, 2003, Dr. Trudeau conducted neurological studies that indicated right brachial plexopathy and an upper trunk lesion, mild to moderately severe in testing terms. R. 163-67.

Zappia's primary physician Daniel O'Brien, M.D., then referred Zappia to an anesthesiologist and pain specialist Babu Prasad, M.D. Dr. Prasad diagnosed brachial plexus neuropathy that caused reflex sympathetic dystrophy (RSD) of the right arm. Dr. Prasad gave Zappia a series of stellate ganglion and brachial plexus blocks. Zappia showed significant, temporary, improvement. Dr. Prasad prescribed pain killers Neurontin and Stadol. Dr. Prasad also observed that Zappia walked with a cane in her left hand and was unable to use her right arm to lift objects weighing 10 pounds. R. 174, 186-88.

On January 16, 2004, Zappia saw a neurologist M. L. Mehra, M.D. Dr. Mehra conducted neurological studies that indicated abnormalities consistent with cervical disk disease rather than a brachial plexus injury. R. 175-79.

On February 19, 2004, Zappia was seen by surgeon David J. Olysav, M.D. Zappia was still complaining of pain in her right arm and shoulder. Dr. Olysav asked Zappia to move her right arm, but Zappia said that she could not. Dr. Olysav had observed Zappia move the arm somewhat already. He explained to her the difference between inability to move one's arm at all and the ability to move it with pain. Zappia then moved her right arm and fingers, but reported significant pain. Dr. Olysav also found that passively, Zappia had full range of motion in both shoulders, although with significant pain. Dr. Olysav concurred that Zappia had RSD and a possible upper trunk lesion as diagnosed by Dr. Trudeau. R. 181.

On July 28, 2004, Zappia was referred to Vittal Chapa, M.D. for a consultative evaluation. Dr. Chapa found atrophy of the right shoulder. He found that the right upper extremity was hypersensitive to pinprick sensation. He found that right biceps and triceps reflexes were absent. He found no passive range of motion in the right shoulder and right elbow. He found that she could not perform either fine or gross motor skills with her right hand and had no grip in her right hand. Dr. Chapa diagnosed RSD of the right upper extremity and intractable right upper extremity pain due to RSD. R. 201-04.

On August 16, 2004, an agency physician reviewed Zappia's medical records and made a residual function capacity assessment.*fn1 The agency physician opined that Zappia could lift 20 pounds occasionally and 10 pounds frequently, could sit or stand for six hours in an eight hour day, had occasional postural limitations, and had limitations in her ability to push, pull and use her hands. R. 193-95. The agency physician stated, "Claimant had an injury to right shoulder and developed RSD of right upper extremity. There is muscle atrophy of right shoulder. She has no grip with right hand.

Use of left hand and arm are normal. She cannot use her right arm for pushing and pulling at all." R. 193. He also stated, "Claimant is not able to use her right hand at all. Use of her left hand . . . is normal." R. 195. The agency physician also noted that, "The right upper extremity is also hypersensitive to pinprick sensation. She has decreased range of motion of the right knee. She is able to flex both her hips to 90 degrees. There is full range of motion of left knee." R. 199. On November 4, 2004, Kenney Charles, M.D., concurred in the agency physician's findings. R. 200.

Zappia's long-term disability insurance carrier referred her to Paul A. Smucker, M.D., for an independent medical evaluation. Zappia told Dr. Smucker that she could not move her right arm, but Dr. Smucker observed her arm move about 30 degrees as her sister helped her remove her blouse. Dr. Smucker observed swelling in the right wrist and hand consistent with disuse and dependent edema. The right upper extremity was slightly discolored with a purplish hue. Zappia's skin on her right hand was shiny. Dr. Smucker said she could not extend her right thumb and index finger fully. He noted complaints of allodynia, which is pain caused by stimulus that is not normally painful. In this case, Zappia complained that clothes on her right arm caused pain. Dr. Smucker determined that she presented with RSD affecting the right upper extremity. He referred her for a functional capacity study to determine the severity of her condition. R. 207-12.

On August 30, 2005, Zappia underwent a functional capacity study at Ergo Science Rehabilitation in Hillsboro, Illinois. The examiner noted that in one or more of the repetitions of a grip test, Zappia showed zero grip strength, which was indicative of non-compliance. The examiner stated that zero grip strength was impossible because that would mean that the arm was paralyzed and it was not. R. 228. At the end of the testing, however, the examiner concluded that Zappia lacked the capacity to perform even sedentary work due to RSD. The examiner noted that Zappia's "responses were consistent throughout the evaluation and symptom magnification does not seem to be a factor." R. 232.

Zappia was then referred to Ronald Zec, Ph.D., for neuropsychological testing. R. 234-252. Dr. Zec noted that Zappia failed two tests of her effort, indicating that she did not put forth adequate effort, and so, the ...

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