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Pawlikowski v. Astrue

August 17, 2009


The opinion of the court was delivered by: Magistrate Judge Susan E. Cox


Plaintiff Nancy Pawlikowski seeks judicial review of a final decision denying her application for Disability Insurance Benefits and Supplemental Security Income under Title II of the Social Security Act.*fn1 The parties submitted Cross-Motions for Summary Judgment. Plaintiff seeks a judgment reversing or remanding the Commissioner's final decision, and the Commissioner seeks a judgment affirming his decision. For the reasons set forth below, plaintiff's motion is denied [dkt. 21] and defendant's motion is granted [dkt. 23].


On August 24, 2006, plaintiff applied for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") alleging a disability period that began November 7, 2005.*fn2 She alleged that ankle pain and asthma prompted her to quit working because she could no longer lift or carry anything over five pounds and had difficulty standing without taking sitting breaks.*fn3 On October 25, 2006, plaintiff's claim was denied.*fn4 On December 27, 2006, plaintiff filed a request for reconsideration, which was denied on February 1, 2007.*fn5 On March 26, 2007, plaintiff requested a hearing before an Administrative Law Judge ("ALJ").*fn6 On November 13, 2007, ALJ Michael McGuire heard plaintiff's case and, on November 20, 2007, issued an unfavorable decision.*fn7 The ALJ found that plaintiff was not disabled at any time from November 7, 2005 through the date of his decision.*fn8 On February 5, 2008, plaintiff filed a request for review of the ALJ's decision with the Social Security Administration Appeals Council ("Appeals Council") and submitted additional evidence.*fn9 On July 17, 2008, the Appeals Council denied plaintiff's request for review. On the same day, the Appeals Council issued an order acknowledging receipt of additional evidence that it made part of the record.*fn10 Plaintiff then filed a request for the Appeals Council to reopen her case and change its decision, which the Council denied on September 19, 2008.*fn11 Therefore, the ALJ's decision stands as the final decision of the Commissioner.*fn12 On February 19, 2009, plaintiff filed this action.


A. Introduction and Medical Evidence

This subsection is a brief review of the facts in the medical record that the ALJ reviewed at plaintiff's hearing and considered when rendering his decision. These facts provide a brief summary of plaintiff's medical history and the reasons she applied for DIB and SSI.

Plaintiff was born on October 9, 1957, making her fifty years old on the date the ALJ issued his final decision.*fn13 She completed high school and later became a certified nursing assistant ("CNA").*fn14 Between 1977 and 2005, plaintiff was employed as a secretary, a medical assistant, a CNA, and a deli server in a grocery store.*fn15 In her Disability Report dated August 24, 2006, plaintiff alleged that worsening asthma and arthritis pain forced her to quit her job as a deli server on November 7, 2005 and prevented her from working since then.*fn16

On November 8, 2005 plaintiff went to Mercy Hospital and Medical Center complaining of right shoulder and back pain.*fn17 On November 10, 2005 plaintiff had an x-ray of her cervical spine which revealed degenerative disc disease.*fn18 From January until March 2006 plaintiff was treated at John H. Stroger Hospital of Cook County ("Stroger Hospital").*fn19 Plaintiff told her physicians that she had been experiencing neck pain, spasms, tenderness, and right arm pain and numbness since March 2005.*fn20 On March 1, 2006 a magnetic resonance image ("MRI") of plaintiff's back revealed a minimal degree of retrolisthesis, a narrowing of the vertebral canal that causes pain and a numb sensation.*fn21 Plaintiff presented with no spinal cord compression and no narrowing of the neural foramina, but did have a mild deformity of the C5 vertebral body.*fn22 Plaintiff's doctors diagnosed her with cervical radiculpathy, a disease of the nerve roots that causes neck and shoulder pain.*fn23

On August 23, 2006, plaintiff was treated at Midwest Orthopaedics at Rush Medical Center for ankle pain by George B. Holmes, M.D., who had last treated her from 1993 to 1995 when he performed surgery on her. Dr. Holmes noted in his report that plaintiff fractured her ankle in 1993 and underwent surgery to correct it.*fn24 Dr. Holmes opined that plaintiff maintained a good range of motion in her ankle but that she may benefit from a brace and anti-inflammatory medication.*fn25 He further noted that plaintiff complained of ongoing right shoulder and neck pain and had a history of: sinus problems, asthma, osteoarthritis, elevated blood pressure, bronchitis, irregular heart beat, Hepatitis C, and shortness of breath.*fn26

On October 3, 2006, Mahesh Shah, M.D., examined plaintiff at the Social Security Administration's request.*fn27 He noted that she had a history of: hypertension, asthma, and pain in the neck, lower back, feet, and left ankle.*fn28 Dr. Shah observed that plaintiff had mild tenderness in the cervical lumbar region but retained a full range of motion and walked without assistive devices.*fn29

He then diagnosed plaintiff with pain in the neck and lower back and noted that plaintiff's hypertension and asthma were well controlled.*fn30

On October 18, 2006, at the Social Security Administration's request, non-examining physician David Bitzer, M.D., prepared a Physical Residual Function Capacity Assessment ("RFCA").*fn31 He opined that plaintiff could occasionally lift fifty pounds and could frequently lift twenty five pounds; could stand, sit, and walk for six hours in an eight-hour day, and; had limited ability to use foot controls due to decreased range of motion and pain in the left ankle.*fn32 Dr. Bitzer concluded that plaintiff could frequently climb, kneel, crouch, and crawl, but that her left ankle's decreased range of motion and intermittent numbness of her right arm limited these movements.*fn33

Finally, Dr. Bitzer opined that, because of her asthma, plaintiff should avoid concentrated exposure to fumes, odors, dusts, and poor ventilation.*fn34

On April 12, 2007 plaintiff saw Jose Ayala, M.D., for the first time.*fn35 On July 6, 2007, Dr. Ayala prepared a second RFCA.*fn36 At the time, plaintiff was suffering from dizziness, chronic fatigue, shortness of breath, episodes of acute panic attacks, and chest pain.*fn37 She also had elevated liver enzymes consistent with her Hepatitis C diagnosis.*fn38 Dr. Ayala opined that plaintiff's impairments had lasted or were expected to last at least twelve months*fn39 and that her pain would frequently interfere with her attention and concentration.*fn40 He further concluded that she could sit and stand for four hours in an eight-hour day;*fn41 could walk unlimited blocks without pain;*fn42 could frequently lift less than ten pounds and occasionally ten pounds;*fn43 could occupy a position that permitted shifting at will and unscheduled breaks,*fn44 and; was capable of low stress work.*fn45 Finally, Dr. Ayala diagnosed plaintiff with alcohol abuse, hypertension, asthma, panic attacks, and Hepatitis C.*fn46 He opined that plaintiff had a poor prognosis.*fn47

B. Additional Evidence Received by the Appeals Council on July 17, 2008

On November 3, 2007, plaintiff received treatment and an echocardiogram at Holy Cross Hospital.*fn48 Upon reviewing the echocardiogram, Jacob Mercedita, M.D., opined that plaintiff had severe pulmonary hypertension, an enlarged right ventricle caused by the hypertension, and trace pulmonic regurgitation, which is backward flowing of blood into the heart's chambers.*fn49

On April 23, 2008 at Stroger Hospital, plaintiff underwent an elective right heart catheterization, a diagnostic test performed to determine cardiac abnormalities and to determine the appropriate therapy.*fn50 On the same day, Francine Touzard Romo, M.D., administered a "walking test," which plaintiff successfully completed when she walked 600 feet while maintaining a 93 percent oxygen saturation level.*fn51 A few weeks later, on May 8, 2008, Maria Karm Demori, M.D., opined that the catheterization revealed controlled hypertension that produced right ventricular dysfunction and hypervolemia and diagnosed plaintiff with hypertension, anxiety/depression, and Hepatitis C.*fn52 In her preliminary report, Dr. Romo observed that, at the time of her treatment at Stroger Hospital, plaintiff was asymptomatic and was not experiencing shortness of breath or chest pain.*fn53

B. The November 13, 2007 Hearing

Plaintiff's hearing before the Social Security Administration occurred on November 13, 2007 in Chicago, Illinois. Plaintiff appeared in person and was represented by her attorney at the time, Sue Halloran. A vocational expert ("VE"), Michelle Peters, also testified.*fn54 The ALJ began by asking plaintiff's attorney if she had explained the issues presented in the hearing to her client and proceeded to direct questions to plaintiff. Plaintiff first established that she had graduated from high school and became a CNA.*fn55 The ALJ then asked plaintiff a series of questions about her jobs. Plaintiff responded that as a CNA she had to lift quite a bit, including patients and, as a medical assistant, had always spent a lot of time on her feet at the doctor's office.*fn56 As a deli server, she lifted twenty pounds at the most.*fn57

After plaintiff explained that she had not worked since the date that she became disabled, November 7, 2005, the ALJ asked her a series of questions about her pain.*fn58 Plaintiff established that her pain is constant, prevents her from ...

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