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Eskew v. Astrue

November 1, 2010


The opinion of the court was delivered by: Judge Sheila Finnegan


Plaintiff Debbie L. Eskew seeks to overturn the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416, 423(d), 1381a. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and filed cross-motions for summary judgment. On April 26, 2010, the case was reassigned to this Court for all further proceedings. After careful review of the record, the Court now grants Defendant's motion for summary judgment and denies Plaintiff's motion.


Plaintiff applied for DIB and SSI on March 9, 2006, alleging that she became disabled on March 4, 2005 from chronic obstructive pulmonary disease ("COPD"), emphysema, cataracts and diabetes. (R. 97-106, 122.) The applications were denied initially on September 1, 2006, and again on reconsideration on December 29, 2006. (R. 49-52, 59-66.) Pursuant to Plaintiff's timely request, Administrative Law Judge ("ALJ") James Grumay held an administrative hearing on July 18, 2007. The ALJ heard testimony from Plaintiff, who appeared with counsel, and from vocational expert ("VE") Jefferson.*fn1

Approximately two weeks later, on August 2, 2007, ALJ E. James Gildea found that Plaintiff is not disabled because she is capable of performing a significant number of light jobs that meet her functional restrictions.*fn2 (R. 12-21.) The Appeals Council denied Plaintiff's request for review on February 6, 2008, and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. (R. 2-4.)

In support of her request for a reversal and/or remand, Plaintiff argues: (1) the ALJ improperly found that her diabetes and cataracts are not severe impairments, and failed to assess the severity of several additional impairments; (2) the ALJ erred in finding that she does not meet Listing 3.02A for chronic pulmonary insufficiency; (3) the ALJ's credibility and RFC determinations were flawed; and (4) the ALJ erred in accepting the testimony of the VE. For reasons discussed below, the Court rejects these arguments.


Plaintiff was born on September 15, 1956, and was 50 years old at the time of the ALJ's decision. (R. 117.) She has a high school diploma and her past relevant work includes bartender, industrial truck operator, assembly/machine tender, industrial x-ray operator, and supervisor for plastics fabrication. (R. 123, 193.)

A. Medical History

1. 2004 through 2005

The first available medical record dates to August 31, 2004, when Plaintiff reported to the Valley West Community Hospital Emergency Room ("Valley West ER") in Sandwich, Illinois, complaining of a cough, chest discomfort and shortness of breath that had gotten progressively worse over the previous two weeks. (R. 267-68.) A chest x-ray showed mild hyperinflation of both lung fields but was otherwise normal. (R. 281.) Dr. Joseph L. Mastro diagnosed acute asthma exacerbation, atypical chest pain, and ventricular ectopy,*fn3 and admitted Plaintiff for further testing. (R. 267-68, 269-80.) She was discharged the following day with a warning that she "must stop smoking!" The doctor gave her Albuterol and Prednisone for her breathing, Elavil for depression, and Keflex for her respiratory infection.

(R. 272.)

Plaintiff returned to the Valley West ER on March 3, 2005, complaining of a cough.

She reported having chest pain for a week, along with fevers, chills and occasional nausea.

(R. 258.) A chest x-ray showed COPD, and Dr. Richard T. Arriviello diagnosed acute influenza and acute exacerbation of emphysema. Following treatment, Plaintiff was feeling much better, with cleared lungs and no more wheezing. Dr. Arriviello instructed Plaintiff to continue taking Albuterol, Atrovent, Pulmicort and a five-day course of Prednisone to help with her breathing. He also gave her smoking cessation materials and told her "[n]o smoking." (R. 259.) Two days later, on March 5, 2005, Plaintiff saw Dr. Bern G. Binger at the Valley West ER. She stated that she "can't breathe" even after using her home nebulizer approximately 10 times, and reported that she could not afford to fill her prescriptions for Atrovent, Pulmicort or Prednisone. (R. 260, 264.) Plaintiff told Dr. Bern that she "possibly" had diabetes, and said that she had stopped smoking the previous day. (R. 260.) A chest x-ray read as clear with "[v]ery minimal new patchy infiltrate [fluid-filled area] in the right lower lobe" and "small actelectasis [collapse] in the left lower lung base." (R. 244, 261.) A chest CT scan exhibited no evidence of pulmonary embolism, but revealed chronic COPD with "bullous emphysema . . . in both lungs" and minimal patchy infiltrate. (R. 245, 261.) An ECG showed normal sinus rhythm with bigeminy*fn4 and no acute changes. Dr. Binger diagnosed acute bilateral pneumonia, dehydration and chronic bigeminy, and admitted Plaintiff for further care. (R. 261.)

Plaintiff was discharged from Valley West on March 7, 2005, with prescriptions for Vicodin and Albuterol. Dr. Martin P. Brauweiler advised Plaintiff to stop smoking and to follow up with him in four days at the Sandwich Medical Clinic. (R. 264.) At the March 11, 2005 follow-up appointment, Plaintiff complained of blurred/double vision for the past day and stated that she had stopped smoking. Dr. Brauweiler confirmed his assessment of asthma exacerbation and COPD, and instructed Plaintiff to return in one month. (R. 241.)

In both April and May 2005, Plaintiff contacted Dr. Brauweiler because she was applying for unemployment insurance and she wanted a note indicating that she had been able to work since March 7, 2005. (R. 240.) On May 21, 2005, Dr. Brauweiler gave Plaintiff a note stating that she "can look for work (since 3/7/05). Because of COPD, she should not be around smoke or do heavy lifting (>20 [lbs.]) at a new job." (R. 242.)

2. 2006 through 2007

Plaintiff next reported to the Valley West ER on January 23, 2006, due to chest pain. She told Dr. Chad W. Yarman that she was not taking Albuterol or using her inhalers at that time because her COPD had been "okay." (R. 253.) Dr. Yarman found Plaintiff to have normal range of motion in all of her extremities and remarked that she was in no respiratory distress. (R. 253-54.) He diagnosed lip abrasions (which Plaintiff refused to discuss) and chest pain, and admitted her for further observation. (R. 254.) Dr. Eric J. Janota took over Plaintiff's care and noted that she was "a smoker" who occasionally smoked marijuana as well. Plaintiff told Dr. Janota that she felt overwhelmed and depressed, experienced poor sleep, and had difficulties with her husband and finances. Dr. Janota assessed asthmatic bronchitis, COPD, chest pain thought to be musculoskeletal in origin, depression, and drug and tobacco abuse. (R. 256-57.) He administered nebulizer treatments, Bactrim (an antibiotic) and Prednisone, and referred Plaintiff to social services for help with her financial problems. (R. 257.)

Dr. Janota discharged Plaintiff on January 25, 2006. He noted that a CT scan of her chest showed an ill-defined upper lobe consolidation on the right, which he treated with antibiotics. An ultrasound Doppler of Plaintiff's lower extremities revealed no appreciable swelling and was negative for deep vein thrombosis on both sides. Plaintiff received Prednisone, Bactrim, Albuterol and Advair, plus Xanax and Zoloft for depression/anxiety and "appropriate services to obtain the medications as an outpatient and to continue with them." Dr. Janota "strongly encouraged" Plaintiff to follow-up with him in 10 to 14 days to repeat her CT scan. (R. 255.)

There is no evidence in the record that Plaintiff saw Dr. Janota again as recommended, but on March 8, 2006, she went to the emergency room at the Community Hospital of Ottawa ("Ottawa Hospital") complaining of shortness of breath, nausea, diarrhea and dehydration. A chest x-ray showed no infiltrates or effusions but "some flattening of the diaphragm suggesting early COPD." (R. 228.) The x-ray also revealed "focal right upper lobe opacity worrisome for neoplasm or potentially focal pneumonic infiltrate." The radiologist recommended a chest CT scan for further evaluation. (R. 234.) Dr. James Grueskin noted that Plaintiff "clearly needs her medications," and he "strongly encouraged her to follow-up with the free clinic in town if she is unable to get her prescriptions filled." He found no evidence of dehydration or pneumonia and saw no reason to administer antibiotics or admit Plaintiff for further treatment. Dr. Grueskin diagnosed COPD exacerbation and gave Plaintiff an inhaler and a dose of Solu-Medrol (a steroid). (R. 229.)

Six days later, on March 14, 2006, Plaintiff returned to Ottawa Hospital for a CT scan of her chest. The scan showed: "noncalcified ill-defined soft tissue density mass in the right upper lung lobe," which could either be a primary neoplasm (abnormal tissue mass) or area of scarring; a 15 millimeter right plumonary hilar lymph node; multiple small hypodense lesions in both lobes of the liver, which could either be benign liver cysts or metastatic deposits; and COPD with "bullous changes at both lung apices." (R. 221-22.) Both lungs were overinflated, but ...

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