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Sharon J. Polchow v. Michael J. Astrue

May 19, 2011

SHARON J. POLCHOW, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION and ORDER

Before the court is the motion of plaintiff Sharon Polchow ("Polchow") for summary judgment. Polchow seeks review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423(d)(2). Polchow submits that there is no genuine issue as to any material fact and requests that the court reverse the Commissioner's decision and award her benefits. For the following reasons, Polchow's motion is denied:

Procedural History

Polchow applied for DIB on January 9, 2008, alleging that she became disabled on December 11, 2007, because she suffers from idiopathic thrombocytopenic purpuria ("ITP") (a blood condition marked by an abnormally low platelet count). (Administrative Record ("A.R.") 75, 76, 93, 154-58.) Her application was denied initially on April 17, 2008, (id. at 75, 89-93), and again on reconsideration on October 27, 2008, (id. at 76, 112-14).

Thereafter, Polchow filed a timely request for a hearing on November 4, 2008. (A.R. 116-17.)

An administrative law judge ("ALJ") held a hearing on October 26, 2009. (Id. at 27-74.) Polchow appeared and testified at the hearing. (Id. at 29.) Dr. John Cavenagh, a medical expert ("ME"), and Chrisann Geist, a vocational expert ("VE"), also testified at the hearing. (Id. at 47, 59.) On January 12, 2010, the ALJ issued a decision finding Polchow not disabled. (Id. at 8-22.) Polchow then requested a review of the ALJ's decision, and on September 10, 2010, the Appeals Council denied her request making the ALJ's decision the final decision of the Commissioner. (Id. at 1-3, 6-7.) Pursuant to 42 U.S.C. § 405(g), Polchow initiated this civil action for judicial review of the Commissioner's final decision. The parties have consented to this court's jurisdiction pursuant to 28 U.S.C. § 636(c). (R. 9.)

Facts

A. Medical Evidence

In February 2006, Polchow sought emergency medical treatment for acute left flank pain that radiated to her left lower side. (Id. at 310-19.) She reported that the pain started the day before and she had been feeling nauseous. (Id. at 312.) The emergency room physician consulted with Polchow's primary care physician, Dr. Karen Spurgash, and prescribed her Toradol IV (nonsteroidal anti-inflammatory medication), which significantly relieved her pain. (Id.) An x-ray of Polchow's lumbosacral spine showed a satisfactory alignment, well-preserved disc heights and no fractures or bone destruction. (Id. at 319.) A blood test produced negative results (A.R. 318), but a urine analysis showed a moderate result for the presence of infection, (id. at 314). In the same month, a bone mineral density study of Polchow's lumbar spine showed osteopenia with a "7.9% decrease in the lumbar spine as well as 5.2% decrease in the left femoral neck" as compared to a 2003 study. (Id. at 305-07.)

From April 2006 to December 2006, Polchow underwent periodic blood testing, (id. at 284, 293-94, 297, 301, 303), urine testing, (id. at 299, 301-02, 304), bone density studies of her spine and hip, (id. at 290), and an x-ray of her sinuses, (id. at 283), which showed only mild abnormalities. Polchow complained of right knee and right lower leg pain during this period, but an x-ray of her right knee showed only mild tri-compartmental degenerative changes and small marginal osteophytes with "no displaced fracture, dislocation or significant joint effusion." (Id. at 286.)

In February 2007, Polchow was treated by Dr. Joseph Allegretti, an ENT, for postnasal drip with nasal congestion and facial pressure. (Id. at 547.) Dr. Allegretti assessed Polchow with nasoseptal perforation. (Id.) A CT scan did not reveal any evidence of sinusitis. (Id.) Dr. Allegretti's treatment notes indicate that Polchow underwent an audiogram in 2006, which revealed a symmetric high frequency sensorineural hearing loss. (Id. at 548.) His notes also reflect that Polchow's sleep study showed a lowest oxygen saturation of 90 percent and that she was required to use a continuous positive airway pressure ("CPAP") machine. (Id.)

About one month later, in March 2007, Polchow complained of two episodes of transient left eye vision blurring, vertigo, tinnitus, and headaches. (A.R. 525-26.) Dr. Jeffrey Curtin, a neurologist, treated Polchow and ordered an MRI of the brain and a magnetic resonance angiogram ("MRA") of the intracranial vessels. (Id.) Both scans produced normal results with the exception of mild mucosal thickening in the ethmoid air cells and fluid within the mastoid air cells. (Id. at 526.)

In June 2007, Dr. James Schlenker (plastic surgeon and hand specialist), diagnosed Polchow with bilateral carpal tunnel syndrome. (Id. at 444-45.) Polchow reported that her symptoms began about three years earlier and gradually became more severe. (Id. at 444.) She first noticed numbness and tingling while working, but her symptoms later began to bother her at night and would wake her up. (Id.) Dr. Schlenker attributed Polchow's pain between her shoulder blades to a manifestation of neurogenic thoracic outlet syndrome. (Id. at 445.) He notified Polchow's employer that she needed an ergonomic workstation and should take three minute breaks every half hour to do exercises for her condition. (Id.)

The following month, in July 2007, Polchow sought emergency medical treatment because of fatigue, weakness and parasthesia in her arms. (Id. at 253-71.) Polchow reported that she recently had a sore throat and upper respiratory symptoms and felt like she was coming down with a "bug." (Id. at 254.) The attending physician ordered several diagnostic tests including an EKG, echocardiogram, and Doppler study, which showed normal heart function. (Id. at 253, 411-12.) Polchow's examination and other tests results were unremarkable but the attending physician diagnosed her with sleep apnea, increased fatigue, and anxiety. (A.R. 253.) Polchow's noncompliance with the use of a CPAP machine was also noted. (Id.)

In September 2007, Polchow underwent an MRI of her internal auditory canals as a result of left side tinnitus and right ear pain. (Id. at 580.) The MRI revealed normal results with the exception of extensive fluid opacifying the mastoid air cells bilaterally. (Id.) Polchow also had an MRI of her lumbar spine to investigate her complaint of left side back pain radiating down the anterior of her left leg. (Id. at 519.) The MRI showed no significant abnormalities or any evidence of intervertebral disk herniation or lateralizing defect. (Id.)

In October 2007, Polchow sought emergency medical treatment for nausea, weakness and chills. (Id. at 373-76.) She reported having these symptoms on and off for several hours. (Id. at 375.) Polchow also had an episode five days earlier where she felt her heart skipping and had shortness of breath, but she did not have any palpitations, chest pain or shortness of breath in the emergency room. (Id.) She explained that she had not been working for six weeks because of some type of viral illness and had returned to work two and a half weeks earlier. (Id.) The attending physician ordered a number of diagnostic tests, which included a CT scan of the head with sinus cuts, an EKG, a blood profile, and an urinalysis. (Id. at 376.) A physical examination and tests showed normal results, but Polchow's hearing in her right ear was slightly decreased as compared to her left ear hearing. (Id. at 375-96.) She was diagnosed with viral syndrome-a diagnosis a physician may use when symptoms suggest a viral illness, but the specific virus is not determined. (A.R. 376.)

Polchow continued to complain of palpitations, weakness, numbness, and abdominal pain in October 2007. (Id. at 370-71.) CT scans of Polchow's abdomen, pelvis and chest revealed no abnormalities with the exception of occasional diverticula of the sigmoid colon. (Id. at 371.) Then, in December 2007, Dr. Miriam Redleaf, a neuro-otologist, ordered an MRI of the brain and auditory canals because of Polchow's complaints of ear pain, numbness, tinnitus, and hearing loss. (Id. at 332.) The MRI showed normal results except for an inflammatory signal within her bilateral mastoid air cells. (Id.) The MRI also indicated a possible brainstem lesion, but a second test did not show any lesions. (Id. at 328, 331-33.) Later that month, Polchow had another set of diagnostic tests, including a blood profile, (id. at 351-52, 354-55), and cardiac monitoring, (id. at 356). These tests did not show any abnormalities. (Id.)

In January 2008, after completing a hand and arm function evaluation, Dr. Schlenker assessed Polchow with recurrent carpal tunnel syndrome. (Id. at 439, 441.) He notified Polchow's employer that if her symptoms of pain and parethesias recurred or if a cortisone injection did not alleviate her symptoms, she would require right carpal tunnel release. (Id. at 440.) An MRI of the right wrist showed the possibility of a ganglion on the volar aspect of the radiocarpal joint, but no other abnormalities were found within the wrist joint. (Id. at 437.) Several weeks later, in February 2008, Dr. Redleaf noted that Polchow's right ear clogging and pain had been resolved. (A.R. 330.) Polchow was also treated at about the same time with Dr. Oswiecimski because of recurrent infections, sinus problems, nausea, and anxiety. (Id. at 628.) She was prescribed Evista (osteoporosis), Klor-Con (irregular heart beat), and Xanax (anxiety) for her symptoms. (Id.)

Polchow had right side endoscopic carpal tunnel release surgery in March 2008. (Id. at 452-54.) Polchow subsequently underwent right hand therapy, (id. at 448, 456-57), and Dr. Schlenker reported that she was progressing satisfactorily, (id. at 436). About six weeks later, Polchow had left side endoscopic carpal tunnel release surgery after an electromyography ("EMG") and nerve conduction study confirmed she needed the surgery. (Id. at 17, 449-51.) After the surgeries, Polchow did not have any complaints about her left hand, but complained of swelling and pain in her right hand. (Id. at 447.) She later reported that her right hand improved with therapy and Dr. Schlenker opined that she could perform light duty work and lift up to 10 pounds with either hand. (Id. at 448.)

In April 2008, Polchow had an internal medicine consultative examination with Dr. M.S. Patil. (Id. at 416-19.) She reported being diagnosed with ITP, but that it was in remission and that her most recent test results indicated "everything looks OK." (Id. at 416.) Polchow also explained to Dr. Patil that she experienced mild pain in her hands and quit working as an executive administrative assistant because she often became sick with colds and infections. (Id.) Dr. Patel noted that Polchow was in no acute distress and her speech and gait were normal. (Id. at 417-18.) Her neurological examination was unremarkable and she had no difficulty with fine and gross manipulative movements of the hands and fingers. (A.R. 418.) Polchow's lumbar spine range of motion was normal except for somewhat limited flexion. (Id. at 417.) She was able to squat and rise and perform tandem and heel and toe walking. (Id. at 419.) Dr. Patel also noted that Polchow's prior medical tests showed normal results. (Id.)

Dr. Charles Wabner, a state agency medical consultant, also reviewed Polchow's medical records in April 2008 and completed an Illinois Request for Medical Advice. (Id. at 420-22.) Dr. Wabner reported that Polchow did not have any severe impairments, (id. at 420), and her dexterity for fine and gross manipulations was maintained, (id. at 422). He also noted that Polchow's most recent laboratory results were within normal results and no physical limitations had been identified during the consultative examination. (Id.)

Dr. Oswiecimski's treatment notes for the same month show that Polchow experienced right arm bursitis, sinus congestion, lower extremity and left side pain, numbness, peripheral neuropathy, and anxiety. (Id. at 622-23.) Polchow also reported to Dr. Curtin that she had lower back pain radiating down her left leg. (Id. at 487, 508.) An MRI of Polchow's lumbar spine revealed only mild degenerative changes and no evidence of significant spinal stenosis or intervertebral disc herniation. (Id. at 508.) Then, in May 2008, Dr. Curtin ordered a sensory nerve conduction study because Polchow complained of left leg pain and numbness. (Id. at 506-07.) The study produced normal results. (Id.)

Polchow also sought treatment from Dr. Robert Fliegelman, an infectious diseases specialist, in May 2008, as a result of having constant viral illness, fatigue, and headaches. (A.R. 564-65.) He diagnosed fatigue with episodic leg weakness and numbness with differential diagnoses including rheumatologic process (polymyositis vasculitis), systemic viral illness, and chronic fatigue syndrome ("CFS"). (Id. at 565.) His treatment notes reflect the fact that while Polchow continued to report fatigue, her immunological testing was normal and there were no significant findings noted during her examinations. (Id. at 504-05, 564.)

About two months later, in July 2008, Polchow underwent diagnostic testing for osteopenia and osteoporosis. (Id. at 502-03.) The bone density scan of her lumbar spine and left hip produced normal results. (Id. at 502.) Towards the end of July 2008, Polchow complained to Dr. Fliegelman that she had another episode of incapacitating fatigue and spent the weekend in bed. (Id. at 561.) Treatment notes show that Polchow's fatigue seemed to be triggered by viral infections and Dr. Fliegelman was concerned about a "deep infection." (Id.) A leukocyte scan of Polchow's lower leg performed in August 2008 indicated an intense ovoid soft tissue uptake of the left lower leg anterior to the distal tibia. (Id. at 501.) In the same month, Polchow was treated by Dr. Oswiecimski for chills, fatigue, heart palpitations, dyspnea, and difficulty in catching her breath upon waking. (Id. at 621.) An EKG showed normal sinus rhythm, and a blood profile produced normal results. (Id. at 639-41.)

In September 2008, Dr. Curtin completed a Neurological Report at the request of a Disability Determination Services' adjudicator. (A.R. at 462-67.) Dr. Curtin diagnosed Polchow with fibromyalgia and noted that her mental status was normal apart from a depressed mood. (Id. at 462.) He reported that Polchow has normal movements, no atrophy, no motor abnormalities, and no coordination or cranial nerve abnormalities. (Id. at 462-63.)

In the same month, Polchow was treated by Dr. Roland Winterfield, a cardiologist, because she had episodes of awakening at night and "gasping for air." (Id. at 589, 596.) An overnight polysomnogram was performed, which showed mild obstructive sleep apnea syndrome, with Polchow's sleep architecture assessed as being abnormal. (Id. at 495-96.) A myocardial perfusion study, (id. at 597-98), a cardiac stress test with isotope, (id. at 606), an EKG, (id. at 607), and an echocardiogram and Doppler study, (id. at 608-09), showed normal results with the exception of lower than normal left ventricular systolic function and trace mitral regurgitation, (id. at 609). The EKG showed good exercise capacity and normal sinus rhythm even though Polchow stopped exercising during the test because of fatigue. (Id. at 607.) The diagnoses included mild sleep apnea and possible nocturnal panic attacks. (Id. at 494.) Polchow was to continue taking Xanax, but a CPAP machine was not recommended. (Id.) A 14-day continuous monitoring of Polchow's heart performed several months later showed no indication of paroxysmal supraventricular tachycardia and sinus rhythm was maintained with intermittent sinus tachycardia. (Id. at 599, 603-05.)

In October 2008, Dr. Bharati Jhaveri, a state agency medical consultant, reviewed Polchow's medical records and completed an Illinois Request for Medical Advice. (A.R. 479-81.) Dr. Jhaveri noted that Polchow's disability claim was being denied because her impairments, which included fibromyalgia and bilateral carpal tunnel syndrome, were not expected to last more than 12 months and were also expected to be non-severe at the end of this period. (Id. at 479.) He explained that Polchow's bilateral carpal tunnel release surgery resulted in significant improvement in her symptoms and that she had normal muscle strength, no atrophy and her movements were within normal limits. (Id. at 481.) Dr. Jhaveri therefore concluded that Polchow would make a successful recovery before the completion of the 12-month period. (Id.)

Several weeks later, in November 2008, Polchow complained of dizziness, vertigo, and transient arm weakness to Dr. Oswiecimski. (Id. at 627, 632.) An MRI of the brain showed normal results with the exception of chronic bilateral mastoiditis, an infection of the mastoid bone behind the ear. (Id. at 632.) The following month, in December 2008, Polchow complained of eye, ear, and knee pain. (Id. at 620.) Dr. Oswiecimski diagnosed her with acute chronic sinusitis and prescribed Omnicef (antibiotic) to resolve her symptoms. (Id.) An x-ray of the right knee was negative except for a minimal patellar spur. (Id. at 631.) In the same month, Dr. Fliegelman diagnosed her with acute otitis media and fatigue, and noted Polchow's medications included Lyrica (pain), Klor-Con, Xanax, Omnicef, and Crestor (cholesterol). (Id. at 555-56.)

Dr. Oswiecimski treated Polchow in January, March, and June 2009, for ear pain, sinusitis, a sore throat, laryngitis, and peripheral neuropathy. (A.R. 617-19.) An MRI of the brain in July 2009 produced normal results except for an inflamed right mastoid. (Id. at 658.) Then, in August 2009, Dr. Oswiecimski completed a medical questionnaire indicating that Polchow was not capable of performing full-time work. (Id. at 666.) Several weeks later, in September 2009, Dr. ...


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