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Diane L. Gholston v. Michael J. Astrue

April 27, 2012

DIANE L. GHOLSTON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



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

MEMORANDUM OPINION and ORDER

Plaintiff Diane Gholston 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), and Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). Before the court are the parties' cross-motions for summary judgment. Gholston asks the court to reverse the Commissioner's decision and award benefits, or in the alternative, to remand the case for further proceedings. The Commissioner seeks an order affirming the decision. For the following reasons, Gholston's motion for summary judgment is granted insofar as it requests a remand and the Commissioner's motion is denied:

I. Procedural History

Gholston applied for DIB and SSI in 2008, alleging that she became disabled on November 1, 2002, due to arthritis, breast cancer, and high blood pressure. (Administrative Record ("A.R.") 70, 179-80, 181-86.) The Commissioner denied her applications in June 2008, (id. at 66-70, 71-75), and again on reconsideration in November 2008, (id. at 78-81, 82-85). Thereafter, Gholston requested and received a hearing before an administrative law judge ("ALJ"). (Id. at 86.) On June 25, 2010, the ALJ issued a decision finding Gholston not disabled. (Id. at 20-26.) The Appeals Council denied Gholston's request for review on May 11, 2011, (id. at 1-3), making the ALJ's decision the final decision of the Commissioner, see Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008). Pursuant to 42 U.S.C. § 405(g), Gholston initiated this civil action for judicial review of the Commissioner's final decision. The parties have consented to the jurisdiction of this court pursuant to 28 U.S.C. § 636(c).

II. Background

A. Summary of Medical Evidence

Gholston, who is 61 years old, suffers from neck, back, knee, and ankle pain, osteoarthritis of the knees and ankles, migraine headaches, high blood pressure, and obesity. She also has a history of breast cancer. Beginning in January 2001, Gholston underwent an orthopedic evaluation with Dr. Charles Lettvin. (A.R. 478.) Gholston complained to Dr. Lettvin that her knees hurt when she walked up and down stairs and reported that she felt like there was something "out of joint" in her knees when she walked. (Id.) Dr. Lettvin first noted that Gholston was very obese and that she walked with a mild limp. (Id.) On examination, Dr. Lettvin found that Gholston had diffuse tenderness around the kneecaps of both her knees. (Id.) X-rays of her knees showed mild degeneration on both sides. (Id. at 474, 478.) Dr. Lettvin diagnosed that Gholston suffers from bilateral patellofemoral degeneration and chondromalacia patella symptoms of the knees.*fn1 (Id. at 478.) He prescribed ice packs, prescription strength anti-inflammatory medication, and strengthening exercises. (Id. at 479.) Dr. Lettvin also advised Gholston that if she did not improve, she might require physical therapy and a cortisone injection. (Id.) Because she continued to have pain in her knees, Gholston underwent a course of physical therapy beginning in April 2001. (Id. at 480.)

In October 2001, Gholston sought emergency medical treatment for back, neck, and migraine headache pain. (Id. at 472, 482.) She described pounding headache pain that had been getting worse throughout the week and numbness in her hands. (Id. at 482.) A CT scan of the head showed no abnormalities. (Id. at 473.) But an x-ray of the cervical spine indicated mild straightening of the usual cervical lordosis, mild spurring of the end plates at the C4-C5 and C5-C6 levels, and mild osteophytic encroachment of the intervertebral foramina at these same levels. (Id. at 472.) Hospital notes indicate that Gholston was taking a number of medications to treat her migraine headaches, high blood pressure, and arthritis. (Id. at 482.) A month later, in November 2001, Gholston reported improvement in her neck pain, but in March 2002, she again sought treatment for migraine headaches and was prescribed Imitrex. (Id. at 447.)

Two years later, in February 2004, Gholston sought emergency care because she was having difficulty walking due to knee pain and swelling. (Id. at 329-30.) She was diagnosed with degenerative joint disease in both of her knees and chronic leg pain. (Id. at 331.) The following year, in March 2005, Gholston again sought emergency medical treatment for knee pain after she fell on a concrete surface and hit her knees. (Id. at 497-98.) An x-ray evaluation of her knees showed mild degenerative joint disease, but there was no evidence of an acute fracture or dislocation. (Id. at 499.) Gholston returned to the emergency room 10 days later complaining of lower leg pain and swelling. (Id. at 500-01.) A sonograph showed no evidence of deep venous thrombosis in the lower extremities. (Id. at 502.) Hospital notes indicate that Gholston was able to walk without assistance and that she had a steady gait. (Id. at 501.) At that time, Gholston was also treated for a migraine headache and prescribed Vicodin. (Id.)

In December 2005, Gholston was diagnosed with left-side breast cancer. (Id. at 313-17.) She underwent a lumpectomy*fn2 and four months of radiation treatment. (Id. at 347, 507.) Gholston was also prescribed a two-year course of Tamoxifen, a medication used to treat breast cancer. (Id. at 22, 310.) In November 2007, she had a recurrence of breast cancer, (id. at 307-08), and, as a result, a left-side mastectomy was performed on her in February 2008, (id. at 304-05, 372-73). During this surgery, Gholston also underwent placement of a left-side tissue expander in anticipation of reconstructive surgery. (Id. at 370.)

In June 2008, Dr. Richard Bilinsky, a state agency physician, reviewed Gholston's medical file and completed a Physical Residual Functional Capacity Assessment form. (Id. at 383-90.) Dr. Bilinsky opined that Gholston can occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, stand and walk for about six hours in an eight-hour workday, sit for about six hours in an eight-hour workday, and occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. (Id. at 384-85.) He further determined that Gholston has a limited ability to reach in all directions and that she must avoid concentrated exposure to hazards, including machinery and heights. (Id. at 386-87.) Dr. Bilinsky noted that Gholston's reported daily activities are fairly limited because of her surgery, obesity, and painful knees and feet. (Id. at 388.) And he noted that Gholston uses a cane when her arthritis flares up, but that she does not use it all the time. (Id.) Dr. Bilinsky listed Gholston's height as 5' 3" and her weight as 247 pounds. (Id. at 390.) He noted that there were "no credibility issues" because the medical record substantiated Gholston's reported daily activities. (Id. at 388.) A state agency medical consultant concurred with Dr. Bilinsky's findings. (Id. at 435-37.)

In January 2009, Gholston underwent a second surgery, which consisted of a right mammoplasty with reduction and removal of the left-side tissue expander that had caused an infection. (Id. at 526, 529, 573.) In December 2009, Gholston reported that her headaches had improved, but that she was having knee and ankle pain, and occasional back pain. (Id. at 613.) Her ankle x-rays showed only minimal degenerative changes and knee x-rays indicated degenerative changes, which were somewhat more prominent on the left. (Id. at 611, 612.) Next, in February 2010, Gholston complained of waking up with painful headaches where the pain began on the left side of her head and moved to her neck. (Id. at 606.) Gholston underwent a CT scan of the head, which produced results that were described as unremarkable. (Id. at 604.) The treating physician diagnosed Gholston as likely having migraine headaches and prescribed medication. (Id. at 607-08.)

In April 2010, Gholston was evaluated for complaints of bilateral knee and ankle pain. (Id. at 603.) At that time, Gholston reported that she had experienced ankle and knee pain for 10 years. (Id.) She described her pain as being worse when she stood for more than 20 minutes and it was also worse on ambulation. (Id.) Gholston explained that she had fallen off balance twice and that she sometimes uses a cane. (Id.) An examination of the lower extremities indicated medial joint tenderness of the knees, with the left worse than the right, and ankle tenderness. (Id.) Treatment notes indicate that Gholston weighed 232 pounds and a recommendation was made that she lose weight. (Id.) The treating physician diagnosed Gholston with osteoarthritis of the knees. (Id.)

B. Gholston's Testimony

At the hearing before the ALJ, Gholston described the multiple physical limitations that interfere with her ability to work. She first explained that she has pain throughout her body, but mostly in her knees and feet. (A.R. 40, 45-46.) Gholston experiences pain in her ankles, toes, heels, and the bottoms of her feet. (Id. at 46.) She explained that if she stands for 15 to 20 minutes her feet begin to tingle because they become numb and then she must sit down. (Id. at 40, 46.) She described having pain in her neck when she wakes up in the morning that persists throughout the day. (Id. at 46-47.) Gholston also has lower back pain about twice a week, but she does not take any medication for her neck and back pain. (Id. at 47.) She stated that she has been using a cane since 2002 but she now uses it as much as she can because of a recent fall. (Id. at 39-40.)

Gholston next testified that her headaches also interfere with her ability to work. She described having headaches as frequently as twice a month, with one headache always being particularly severe. (Id. at 43-45.) Gholston explained that a severe headache lasts from one to two weeks so typically she has a headache for about half the month. (Id. at 43-44.) When she begins to get a headache, she takes Imitrex and lies down. (Id. at 41, 44.) She is only permitted to take two Imitrex pills per day because she is prescribed a set number of pills, but her headaches are such that she must always take the second pill. (Id. at 41-42.) The medication eases her headache, but does not resolve it. (Id. at 42.) She experiences blurry vision and sensitivity to noise and she cannot wear her glasses or watch television while she has a severe headache. (Id. at 42, 44.) Gholston explained that when her headaches began 26 years earlier, she took prescription strength Tylenol (with codeine) and spent days in bed in the dark with no television or noise, but they are somewhat less severe now when she takes Imitrex. (Id. at 45.)

Gholston testified that on a typical day she wakes up between 8:00 a.m. and 9:00 a.m., grabs her cane, and goes into the bathroom to brush her teeth. (Id. at 47-48.) She then calls her niece to come to her apartment to help her take a shower, get dressed, and make breakfast. (Id. at 48-49.) After breakfast, Gholston will sit and elevate her feet for about an hour so that her ankles do not swell. (Id. at 49.) After sitting for an hour, she will stand up and then sit down again. (Id.) Gholston explained that her niece or cousin will take her to the grocery store once a month. (Id. at 49, 55-56.) She stated that she must rely on her niece or cousin to push the grocery cart, place food items in the cart, and stand in line to pay the cashier. (Id. at 55-56.) Her cousin also does her laundry once a month because Gholston's arms and fingers hurt when she lifts wet laundry. (Id. at 50-51.) She explained that she has had finger pain that lasts about four hours each day since 2003. (Id. at 51.) Gholston cannot lift heavy objects because of left arm soreness and she estimates that she can lift about a half gallon of milk. (Id. at 55.) She is unable to drive because her leg and knee get stiff and bother her. (Id. at 56.) Gholston sometimes reads, watches television, and visits with family. (Id. at 53-54.)

C. Vocational Expert's Testimony

A vocational expert, William Newman, testified that Gholston's past relevant work as a tax preparer, telemarketer/customer service representative, and school secretary constitute semi-skilled and sedentary level work. (A.R. 57.) He described Gholston's past work as a teacher's aide as constituting semi-skilled and light-level work, but he explained that she performed that job at the sedentary level. (Id.) The ALJ next asked Newman what effect an individual's inability to stand for more than 15 to 20 minutes at a time would have on these jobs. (Id. at 58.) He responded that the standing limitation would only impact the teacher's aide position because it is typically performed at the light level. (Id.) Newman also explained that if an individual needed to use a cane to walk she may not be able to perform the teacher's aide position or the tax preparer position, because these positions may require an individual to carry materials and push carts. (Id.) He testified, however, that the hypothetical individual could perform the telemarketer/customer service representative and school secretary positions. (Id.)

Newman next explained that these jobs would allow for unscheduled rest breaks at least once an hour but would accommodate no more than 1.5 days of absenteeism per month. (Id. at 58-60.) He also testified that if an individual needed to lie down during the workday or remove herself from the workplace for a total of two hours during the workday, that would eliminate the jobs he identified. (Id. at 60.)

D. The ALJ's Decision

The ALJ evaluated Gholston's claim under the required five-step analysis. See 20 C.F.R. §§ 404.1520, 416.920. She concluded that: (1) Gholston had not engaged in substantial gainful activity since November 1, 2002, the alleged onset date of her disability;

(2) her history of breast cancer, arthritis of the knees, migraine headaches, and hypertension constitute severe impairments; (3) these impairments do not individually or collectively meet or equal a listed impairment; (4) Gholston has the residual functional capacity ("RFC") to perform the full range of sedentary work; and (5) based on this RFC she can perform her previous work as ...


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