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Zanoni v. Astrue

September 7, 2010


The opinion of the court was delivered by: P. Michael Mahoney, Magistrate Judge United States District Court

Magistrate Judge P. Michael Mahoney


I. Introduction

Heather Zanoni seeks judicial review of the Social Security Administration Commissioner's decision to deny her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. See 42 U.S.C. § 405(g). This matter is before the magistrate judge pursuant to the consent of both parties, filed on March 10, 2009. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

Claimant first filed for DIB on or about September 3, 2004 and amended her application on September 17, 2004. (Tr 107, 109--14.) She alleges a disability onset date of May 1, 2004. (Tr. 114, 540.) Her claim was denied initially and on reconsideration. (Tr. 497, 503.) The Administrative Law Judge ("ALJ") conducted hearings into Claimant's application for benefits on June 9, 2006, and March 15, 2007 (Tr. 511, 534.) At the first hearing, Claimant was not represented by counsel, and the ALJ continued the hearing to allow her to obtain counsel and to request medical documents. (Tr. 513--525, 528.) At the second hearing, Claimant was represented by counsel and testified. (Tr. 536--81.) Dr. Daniel Schiff, a psychiatrist, Susan Entenberg, a Vocational Expert, and Rexanne Zanoni, Claimant's mother, were all present and testified. (Tr. 564--81.) The ALJ issued a written decision denying Claimant's application on August 8, 2007, finding that Claimant could perform the requirements of her past relevant work as a lay up specialist. (Tr. 20--29.) Because the Appeals Council denied Claimant's Request for Review regarding the ALJ's decision, that decision constitutes the final decision of the Commissioner. (Tr. 9--11.)

III. Background

According to testimony, Claimant was born on September 6, 1980, making her 26 years old at the time of her hearing. (Tr. 542.) She has two children and lived with her boyfriend at the time of her hearing. (Tr. 541.) She completed high school and took some college courses in 2005. (Tr. 542.)

Claimant testified that she experiences pain in her back, legs, hips, knees, and her right arm and hand. (Tr. 549.) She described a constant sharp pain in her lower back that has become worse over a period of years. (Tr. 549--50.) She alleged that the pain in her back radiates to her arms and legs on a nightly basis and on occasion when she walks around during the day. (Tr. 551.) She also described her emotional state as being very depressed on a daily basis, which caused her to dislike being around others. (Tr. 550--51.) Claimant can stand for twenty to thirty minutes comfortably, can walk for about half of a block before stopping to sit, and can sit in one position for about thirty minutes before her back begins to hurt worse. (Tr. 556.) Her mother works as her Personal Care Attendant for several hours a day and takes care of tasks around her house. (Tr. 557.)

Claimant stopped working on or around July 1, 2004. (Tr. 164, 544.) From 1995 to 2004, Claimant worked at approximately thirty-eight different positions according to her Earnings Report. (Tr. 123--128.) The majority of the positions appear to be temporary telemarketing positions that she worked at between 1997 and June 2001, and again sporadically between 2002 and 2004. (Tr. 129--134, 215.) These positions typically involved sitting for seven hours per day, writing, typing, and handling small objects for approximately four hours. (Tr. 218, 546--47.) From June 2001 to March 2002 she worked as a waitress. (Tr. 215.) Claimant testified that in 2002 she worked at a nursing home, which required her to sit for about four hours, be on her feet for about four hours, and to perform typing, filing, and cash register duties. (Tr. 545--46.) From January 2004 to April 2004, Claimant worked as a lay-up specialist, which required sitting at a table and cutting photos for yearbooks. (Tr. 215.) From June 2004 to July 2004 Claimant worked as a packager, which required her to stand and place bolts and screws into boxes. (Tr. 544.) This job also required lifting large boxes of fifty pounds or more. (Tr. 545.) Claimant stated that she stopped working after the packaging job because her back became too painful. (Tr. 545.)

In 2005, Claimant began attending college classes to become a paralegal. (Tr. 542--44.) She testified that she attended classes for about three months and then switched to home schooling because she could not handle sitting for long periods of time or being around a lot of people. (Tr. 543.) She proceeded with home schooling for three or four months and then stopped because of post partum depression and the teacher moving out of the state. (Tr. 543--44.)

Since she stopped working or taking classes, Claimant described her typical day as including taking her daughter to pre-school, sometimes interacting with her kids, occasionally performing some household chores, and watching television from bed. (Tr. 557--559.) She sometimes changes her son's diaper, and is able to lift him but not comfortably. (Tr. 558--59.) Her mother comes to her house every evening to help with household tasks such as cooking, cleaning, and bathing her children. (Tr. 557.) Her mother also helps Claimant get into the shower and get dressed because she has trouble bending over. (Tr. 560--61.) Her mother does her grocery shopping and runs other errands for her. (Tr. 557.) She is able to see other family members two or three times a week, goes out to breakfast once a week, and occasionally goes on brief shopping trips. (Tr. 555.) Claimant also testified that she has trouble sleeping for more than a few hours because of the discomfort, and sleeping medications do not seem to work. (561--62.)

Claimant's mother also testified at the hearing on March 15, 2007. (Tr. 536.) She stated that she lived with her daughter up until six months prior to the hearing. (Tr. 577.) She is now paid by the State of Illinois to be her daughter's Personal Care Attendant. (Tr. 578.) She helps with Claimant's children, runs errands for her, does her laundry, and helps her get dressed. (Tr. 578.) She felt that Claimant's pain had gotten worse over the last few years, and stated that her crying increased in frequency. (Tr. 579.)

IV. Medical Evidence

According to a summary prepared by Dr. R.F. Neiman on August 8, 2001, Claimant's relevant medical history begins on August 16, 1999, when she injured her back while attempting to lift a patient at a nursing home where she was working. (Tr. 237.) She reported a sharp pain in her back and received a course of physical therapy. (Tr. 237.) She experienced continued problems with her lower back and was seen by Dr. Caratta, a chiropractor who treated her with electrical therapy, heat, and alignments. (Tr. 237.) She was then seen by Dr. Morris Mark Soriano, who ordered an MRI scan of her back that was performed on January 23, 2001. (Tr. 237, 407--08.) The MRI report noted that Claimant had a tiny central disk protrusion at L3--4 and degenerative changes at L5--S1, but no significant lateralizing nerve root pressure at either location and no other evidence of focal disc herniation or spinal stenoses. (Tr. 408.) Dr. Soriano did not believe that the neck and lower back pain reported by Claimant was caused by the disc protrusion or that the protrusions were caused by Claimant's injury. (Tr. 407.) Dr. Neiman reviewed Dr. Soriano's findings and felt there was evidence of disc herniation that was causing Claimant's symptoms. (Tr. 238.) Using The American Medical Association Guides to Permanent Impairment, Dr. Neiman found Claimant's level of impairment to be 7% of the whole person. (Tr. 238.) Dr. Neiman noted that Claimant will have difficulty with tasks which require repetitive flexion, extension, and lateral flexion of the lumbrosacral spine. (Tr. 238.) He believed she could lift ten to fifteen pounds repetitively and up to thirty pounds maximum. (Tr. 238.) While Dr. Neiman found Claimant could not return to her previous job as a certified nurse, he stated that she was certainly capable of other employment. (Tr. 238.)

Dr. Soriano ordered Claimant to undergo physical therapy. (Tr. 409.) In a letter dated April 11, 2001, Rockford Health Systems sent Dr. Soriano a letter indicating that Claimant did not make contact or show up for her physical therapy appointments and was discharged from physical therapy and biofeedback training. (Tr. 409.)

Beginning on October 18, 2002, Claimant was treated by Dr. Harry W. Darland. (Tr. 437.) Dr. Darland prescribed Vicodin for Claimant's back pain and noted that he may order a CT scan. (Tr. 437.) Dr. Darland ordered Claimant to undergo a CT scan on February 5, 2003, which revealed mild degenerative changes of the lower lumbar from L3 to S1 with evidence of mild disc protrusion at each level, but no frank herniation or significant foraminal conflict. (Tr. 448.) At a follow-up visit to the CT scan on March 7, 2003, Claimant reported good days and bad days with her back and Dr. Darland reported discussing a plan for improvement. (Tr. 435.) In a letter dated March 19, 2003, Dr. David Park wrote to Dr. Darland that Claimant was a good candidate for bariatric surgery. (Tr. 438.)

In addition to the follow-up from the CT scan, Claimant had approximately fifteen follow-up visits with Dr. Darland between November 25, 2002 and November 19, 2004. (Tr. 427--37.) During the follow-up visits, Claimant presented with various ailments, including back pain, diet and weight issues, diarrhea, a finger injury, a runny nose, fatigue, foot pain, sinus pressure and cold symptoms, an earache, depression, chest pain and a cough, and a cold. (Tr. 427--37.) Back pain or a note about a lower back disorder regularly appears in Dr. Darland's notes, along with prescriptions for Vicodin, Topamax*fn1 , Klonopin*fn2 , Zoloft, and Adipex. (Tr. 427--37.) In the same time period, Claimant was listed as a "no show" five times and cancelled an additional appointment. (Tr. 427--37.)

On November 19, 2004, the same day Dr. Darland's notes reflect a visit with Claimant regarding cold symptoms, notes from Dr. Phillip Higgins' office state that Claimant called stating that she had been vomiting all day and was advised to take Azithromycin with food. (Tr. 320, 427.) Around this same time, Claimant had begun seeing Dr. Higgins in addition to Dr. Darland. (Tr. 318-21.)

On December 2, 2004 Claimant saw Dr. Badruddoja regarding back and neck pain. Dr. Badruddoja noted that Claimant had been seeing a doctor in Rockford for three years who was prescribing her Vicodin for pain. (Tr. 270.) Her pain was not constant, but would go through periods of remission and recurrence. (Tr. 270.) When the pain recurs, Claimant stated that the pain can be as high as 8/10 on a scale of 1 to 10. (Tr. 270.) There was no radiation of pain, numbness, tingling sensation, or weakness. (Tr. 270.) Claimant recently had a sudden onset of cervical pain with minimum radiation to other areas. (Tr. 270.) Dr. Badruddoja noted that there was tenderness in the lumbar area, and that the bilateral straight leg test was negative, but otherwise all neurological examinations and flexion motions were normal. (Tr. 270.) Similar findings were made for the cervical area. (Tr. 270.) The doctor's impressions were that claimant had a chronic lumbar sprain and acute cervicalgia, but ruled out lumbar disk syndrome and cervical disk syndrome. (Tr. 270.) He prescribed a chiropractic evaluation and a physical therapy evaluation. (Tr. 271.)

On December 6, 2004, Claimant underwent a physical therapy evaluation at the Rehabilitation Associates of Northern Illinois. (Tr. 268.) Claimant reported that she was only able to sleep five or six hours per night due to the pain, and that physical therapy helped to decrease the constant pain. (Tr. 268.) The assessment found that Claimant had cervical and lumbar pain of mild severity and found that she was a good candidate for physical therapy. (Tr. 269.) It was suggested that Claimant undergo physical therapy two to three times a week for four weeks, including therapeutic exercises and electrical stimulation. (Tr. 269.) A chart in Claimant's medical record indicates that she attended physical therapy on December 14, 2004, but contains no notes from any other session. (Tr. 274.)

On December 20, 2004, Claimant was examined by Dr. Stephen Geller for a report to the State of Illinois Bureau of Disability Determination Services. (Tr. 277.) Dr. Geller noted that Claimant indicated a steady, constant pain in her low back with occasional sharp spasms. (Tr. 277.) Claimant indicated that the pain was worse on the left than the right and radiated to both hips and down the mid-thighs, and sometimes around the front of the lower abdomen or down to her feet. (Tr. 277.) She also had occasional neck pain, and recently noticed numbness in her hands occurring mostly at night. (Tr. 277.) Claimant's physical examination revealed that she had no joint abnormalities and full ranges of motion except for the straight leg raise, standing forward flexion to ninety degrees, and lateral bending to twenty degrees. (Tr. 278.) Dr. Geller noted that due to back pain, Claimant can walk only 10--15 minutes before resting for 10 minutes; can climb 5-6 stairs and stand for 30-60 minutes, can sit for 30 minutes, and can lie down for 2 hours. (Tr. 277.) Claimant had prescriptions for Vicodin for pain, Topamax for migraines, clonazepam for panic attacks, and Adipex for weight loss. (Tr. 278.) She was capable of all activities of daily living "except occasionally needing help dressing her feet." (Tr. 277.) Dr. Geller found that Claimant had mechanical low back pain, degenerative arthritis of the spine, and morbid obesity. (Tr. 279.)

At the December 20, 2004 appointment, Dr. Geller also evaluated Claimant's psychological health. (Tr. 278.) She indicated the development of anxiety and serious depression in seventh grade stemming from a dysfunctional home. (Tr. 278.) Dr. Geller found Claimant was able to relay her history with a normal affect, and found no other signs of depression. (Tr. 278--79.) He diagnosed her with controlled anxious depression. (Tr. 279.)

On January 13, 2005, Dr. Victoria Dow, a state agency physician, assessed Claimant's residual functioning capacity based on her medical records. (Tr. 280.) She found that Claimant could occasionally lift 50 pounds, frequently lift 25 pounds, stand and/or walk for about 6 hours in an 8-hour day, sit with normal breaks for about 6 hours in an 8-hour workday, and was unlimited in her push and/or pull capacity. (Tr. 281.) ...

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