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Leilani Pawlowski v. Michael J. Astrue

August 25, 2011


The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole


The plaintiff, Leilani Pawlowski, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). 42 U.S.C. §§ 423(d)(2). Ms. Pawlowski asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.


Ms. Pawlowski applied for DIB on September 29, 2006, alleging that she became disabled on March 1, 2003, due to degenerative disc disease, herniated discs, arthritis of the spine, depression, post traumatic stress disorder, panic attacks, and migraine headaches. (Administrative Record ("R.")100-102, 124). Her application was denied initially and upon reconsideration. (R. 62-68, 72-75). Ms. Pawlowski filed a timely request for a hearing. An ALJ held a hearing on May 19, 2009, at which Ms. Pawlowski, represented by counsel, appeared and testified. (R. 27-61). In addition, Brian Paprocki testified as a vocational expert. (R. 21-32). On June 29, 2009, the ALJ issued a decision finding that Ms. Pawlowski was not disabled because she retained the capacity to perform light work with no more than occasional contact with co-workers, supervisors, and the public. (R. 9-26). This became the final decision of the Commissioner when the Appeals Council denied Ms. Pawlowski's request for review of the decision on August 18, 2009. (R. 1-3). See 20 C.F.R. §§ 404.955; 404.981. Ms. Pawlowski has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).



Vocational Evidence Ms. Pawlowski was born on May 31, 1965, making her forty-four years old at the time of the ALJ's decision. (R. 100). She has a high school education and physical rehabilitation training. (R. 132). She has work experience as a nursing assistant, from 1996 through 2002. (R. 125). That job required heavy lifting -- she had to move patients -- and a good deal of walking. (R. 125). She stopped working because she "was having personal problems with her boyfriend and was in the process of moving." (R. 124). For the purposes of receiving DIB, Ms. Pawlowski's insured status expired March 31, 2006.

(R. 120). Accordingly, the question is whether Ms. Pawlowski was disabled prior to that date. Califano v. Sanders, 430 U.S. 99, 101 (1977); Allord v. Astrue, 631 F.3d 411, 413 (7th Cir. 2011).


Medical Evidence In her four-page brief supporting her request for a remand, Ms. Pawlowski bases her claim that she is entitled to DIB exclusively on her back impairment. She cites only two pieces of evidence to support her position: an MRI report from February 21, 2006, and a report from a physician who treated her dated March 1, 2006. She contends that this evidence shows that the ALJ erred when he failed to find that her impairment met or equaled a listed impairment. Accordingly, any other arguments she could have made are deemed waived. Carter v. Astrue, 413 Fed.Appx. 899, 905, 2011 WL 917000, *6 (7th Cir. 2011); Skarbek v. Barnhart, 390 F.3d 500, 505 (7th Cir.2 004); Schoenfeld v. Apfel, 237 F.3d 788, 793 (7th Cir. 2001); Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000).

The facts before the ALJ are these: In February of 2004, Ms. Pawlowski fell off a snowmobile. A couple of days after the incident, she went to the emergency room of her local hospital in Mendota, Illinois. (R. 323-24). Upon examination, she had "absolutely no tenderness" over the midline vertebrae to palpation, full range of motion of all joints, and no neurological deficits (R.323-24). On February 18, 2004, Ms. Pawlowski saw Kwang Chung, M.D., her primary physician, and complained of pain in her neck, lower back, and legs; she also had a headache. (R. 454). The next day, CT scans of Ms. Pawlowski's spine showed "mild degenerative changes" at C5-C6, "mild degenerative changes" in her dorsal spine, and degenerative changes with a disc bulge at L4-L5, and a "small central disc protrusion at L5-S1." (R. 298). In March 2004, Ms. Pawlowski had two weeks of physical therapy. (R. 294-95). On her last visit, she said she was feeling "some better" and was discharged after she failed to return or contact the physical therapist. (R. 293). Five months later, in August 2004, x-rays of Ms. Pawlowski's lumbar spine showed diffuse degenerative disc disease involving spurring from L2 to L5, but all vertebral body heights and alignment were maintained. (R. 292).

The next medical evidence pertinent to Ms. Pawlowski's back problems is from two-and-one-half years after that, in February 2006. She had MRIs of her thoracic and lumbar spines. The thoracic study revealed mild diffuse disc bulging at T12-L1, with mild central canal stenosis. The study was unremarkable otherwise. (R. 285). The lumbar study is the focus of Ms. Pawlowski's appeal -- indeed, she cites to no other medical evidence in her brief. The results of that examination were:

FINDINGS: The study will be dictated under the assumption that there are five lumbar type vertebrae. There is desiccation of the L3-4, L4-5, and L5-S1 discs. Upper lumbar vertebrae are unremarkable in appearance. There is mild diffuse bulging of the T11-12 disc. Conus medullaris terminates at mid L1. At L3-4, there is a small broad-based left lateral and paramedian disc protrusion (herniation) with mild narrowing of the left half of the spinal canal. This narrows the origin of the left-sided neural foramen, but does not significantly efface the exiting left L3 nerve root. At L4-5, there is diffuse outward bulging of the disc that is slightly eccentrically greater towards the left. There is mild central canal stenosis when combined with the facet hypertrophic change. There is also mild bilateral neural foraminal narrowing present.

At L5-S1, there is a central posterior disc protrusion (herniation) with high T2-weighted signal intensity indicating an annular tear. Mild central canal stenosis is seen. There is also left lateral recess narrowing. However, there is convincing effacement of the Sl nerve roots or the exiting L5 nerve roots.

IMPRESSION: Plain films are not available for comparison at the time of interpretation. Therefore, the study is dictated under the assumption that there are five lumbar type vertebrae. Small central posterior disc protrusion (herniation) at L5-S1 with evidence for an annular tear at the posterior margin of the disc protrusion. There is mild central canal stenosis. No focal nerve root effacement or significant neural foraminal narrowing is seen at this level.

Diffuse disc bulging at L4-5 and small left paramedian and lateral disc protrusion (herniation) at L3-4. There is mild central canal narrowing at both of these levels and mild left L4-S neural foraminal narrowing without definite effacement of the exiting nerve root. There is also slight bilateral L4-5 neural foraminal stenosis without effacement of the nerve roots. Otherwise unremarkable MRI of the lumbar spine. No fracture is seen.

(R. 286).

The following month, on March 1, 2006, Ms. Pawlowski told pain management physician Deofil Orteza, M.D., that she had constant low back pain at "8" to "10" on a scale of 10, radiating to her hips and groin and, at times, toward her mid-back area. (R. 388). She said that walking, bending, and climbing stairs aggravated the pain. (R. 388). Upon examination, she exhibited a normal gait, negative straight leg raise ("SLR"), intact sensory and motor function, satisfactory heel/toe movement, and normal reflexes. (R. 389).

Dr. Orteza administered an epidural steroid injection on March 10, 2006. (R. 393). A couple of weeks later, Ms. Pawlowski reported "100% improvement" of her pain initially after the injection, later reduced to 80% alleviation; she was still able to ambulate without significant pain. (R. 395). Dr. Orteza reported that physical examination was "essentially unchanged" with no new physical findings (R. 395).

On March 24, 2006, Ms. Pawlowski went to the emergency room, complaining of a migraine headache. (R. 470). She was noted to be in no acute distress, "[s]itting comfortably on cart," and her examination showed 5/5 (normal) strength, normal gait, and normal neurological findings. (R. 471). Ms. Pawlowski also reported that she was presently taking care of her father and her mother, who was receiving chemotherapy for breast cancer, and so she was getting "very little rest." (R. 470).

On October 24, 2006, while she was visiting her father in the hospital, she went to the emergency room complaining of chest pains which she said she got from anxiety and panic attacks. (R. 466). She had an essentially normal EKG and the pain was "very unlikely to be cardiac," although it could not be completely ruled out at the time. (R. 467). The attending physician felt it was probably radiating from her back, or that it was a chest wall strain. (R. 467).

In January 2007, Dr. Virgilio Pilapil reviewed the record on behalf of the state agency. (R. 502-09). Dr. Pilapil felt that Ms. Pawlowski could perform light work -- she could occasionally lift or carry up to 20 pounds, frequently lift or carry 10 pounds, and stand, walk, or sit for six hours out of a work day. (R. 503). In March 2007, Dr. Calixto Aquino performed a similar review and concurred. (R. 511).


Administrative Hearing ...

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