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Boucek v. Astrue

June 16, 2010


The opinion of the court was delivered by: Magistrate Judge Young B. Kim


Before the court is Carol Boucek's motion to reverse a decision of the Commissioner of Social Security ("the Commissioner") denying her application for disability insurance benefits ("DIB") under the Social Security Act, 42 U.S.C. §§ 416(i), 423. Boucek claims that her asthma, cardiac problems, knee and toe pain, and arthritis render her disabled. The Commissioner of Social Security issued a final decision denying her claims, and Boucek appeals. For the following reasons, Boucek's motion is denied:

Procedural History

Boucek applied for DIB in January 2006, claiming that her disability began on November 15, 2005. (A.R. 20, 79.) The Commissioner denied her claim initially and on reconsideration. (Id. at 51-52.) Boucek then requested, and was granted, a hearing before an administrative law judge ("ALJ"). (Id. at 66.) The ALJ concluded that Boucek was not "disabled" as defined in the Social Security Act. (Id. at 16.) When the Appeals Council denied review, (id. at 1), the ALJ's decision became the final decision of the Commissioner, see Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007). Boucek then filed the current suit seeking judicial review of the ALJ's decision. See 42 U.S.C. § 405(g). The parties have consented to the jurisdiction of this court. See 28 U.S.C. § 636(c).


In her DIB application, Boucek claimed that her disability began on November 15, 2005, when she quit her job as a certified public accountant because her constant exposure at the office to boxes of moldy and dusty documents exacerbated her asthma. (A.R. 25, 37, 116-17, 244-45.) She also claimed that her ability to work is limited by her fatigue, which is caused by a combination of her asthma and a cardiac condition called mitral valve regurgitation. (Id. at 47.) Finally, Boucek claimed to suffer from chronic knee pain and arthritis. (Id. at 30-32, 44-45, 116, 196.) At her hearing before an ALJ, Boucek provided both documentary and testimonial evidence in support of her claims.

A. Boucek's Evidence

Boucek testified that she was forced to stop working because of her asthma, which causes her to wheeze and experience tightness in her chest and shortness of breath. (A.R. 25, 36.) She explained that her asthma is exacerbated by environmental triggers such as mold, dust, smoke, and strong smells (animals are not among this list, as Boucek keeps a dog and five cats as pets). (Id. at 23, 37.) Boucek had never gone to the emergency room or hospital for treatment of an asthma attack, but she testified that she uses Pulmicort, Nasacort, and a rescue inhaler to control her symptoms. (Id. at 36, 122.) She explained that her asthma became worse while she was working as an accountant, because the job required her to handle old, musty documents. (Id. at 25, 116.) Boucek submitted a letter from her former employer corroborating that his office caused her to cough and wheeze. (Id. at 244.) She testified that when she quit her job, her asthma improved. (Id. at 38.)

Boucek testified that she also suffers from extra heartbeats, skipped heartbeats, and mitral valve regurgitation, which will eventually require valve-replacement surgery. (A.R. 37.) She said that the combination of her asthma and mitral valve regurgitation causes her to feel fatigued and short of breath, and that she tires easily with strenuous activity. (Id. at 46-47.) The ALJ noted that her most recent stress echocardiogram did not show any serious abnormalities, and Boucek reported that her cardiologist, Dr. Raymond Rapecz, told her that she is "doing ok for now." (Id. at 37-38.) She submitted treatment evaluations from Dr. Rapecz, who reported in June 2006 that Boucek was "clinically doing well." (Id. at 213-214.) She also submitted echocardiogram reports from April 2006 and November 2007. Both reports show only mild mitral valve regurgitation, although the 2006 report shows "severe pulmonic regurgitation." (Id. at 196, 247.) Boucek does not take any medication in connection with her heart condition. (Id. at 122, 185.)

Boucek also described her chronic right knee pain, which is caused by arthritis and a degeneration of cartilage. (A.R. 30-31.) She testified that despite undergoing a knee arthroscopy in 1999, she still experiences an aching, throbbing pain that can range from a "three to a fifteen" on a scale of one to ten. (Id. at 30-32.) The pain often keeps her awake at night. (Id. at 38-39.) Boucek explained that the pain is worse when she is active, and if she sits still for too long it can lock in a bent position. (Id. at 31.) She said she is considering getting a cane, but has not used one yet because "it's a psychological thing." (Id. at 32.) Boucek also testified that she only takes over-the-counter medicine to control her pain, and that she had not asked her doctor for prescription pain medication because she does not like to take pills "unless I absolutely have to." (Id. at 45-46.) In support of her testimony she submitted a report from her general practitioner, Dr. Lisa Fortman, who wrote in November 2005 that Boucek will need knee replacement surgery "in the future." (Id. at 201.) Three months later, Dr. Fortman opined that Boucek can walk for one hour and can lift and carry up to ten pounds for short distances, but that during a work day she would need to change positions often and get up to stretch her right knee every hour. (Id. at 183.)

Finally, Boucek described her struggles with arthritis in her thumbs and left toes. She explained that the arthritis in her thumbs makes it difficult for her to grip anything heavy. She also testified that she experienced something called "trigger thumb," but that it had been treated in August 2007 and she was "pretty much back to normal on that." (Id. at 35, 249.) The week before the hearing she had undergone two bunionectomies to fix an abnormality in her big left toe that was inflaming her arthritis. (Id. at 30.) At the time of the hearing, Boucek was taking Vicodin and Celebrex to control the pain from those procedures, but she did not expect to renew the prescriptions when they ran out. (Id. at 39-40.)

The ALJ questioned Boucek at length about her daily activities. Boucek explained that she lives alone with her dog and five cats, and that she takes care of her own cooking, cleaning, and housekeeping. (A.R. 23, 40.) Boucek testified that because she tires easily, when shopping she tries to visit only one store at a time. (Id. at 40.) She explained that she naps every day, and that when cleaning her house she has to rest after every half-hour of work. (Id. at 43, 48.) She said that merely changing the linens on her bed is enough to make her lose her breath. (Id. at 48.)

Included in the record is a residual functional capacity assessment submitted by a medical consultant named Dr. Young-Ja Kim. Based on his review of the medical records, he opined that Boucek could sit, stand, or walk for about six hours in an eight-hour work day. (Id. at 189.) He noted that she should avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. (Id. at 192.) He did not note any other significant ...

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