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Monica Jones v. Michael J. Astrue

September 18, 2012


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


Monica Jones has struggled with asthma since she was a child, and she claims that in 2006, the symptoms of her life-long affliction became disabling. In 2007 she sought disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"), 42 U.S.C. §§ 416(I), 423, 1382c, but the Commissioner denied her applications. Currently before the court is Jones's motion for summary judgment challenging this denial. For the following reasons, the motion is denied:

Procedural History

Jones filed her applications for DIB and SSI in December 2007. (A.R. 88-103.) In her SSI application Jones stated that she has been disabled since birth, (id. at 88), but in her DIB application she cited the onset date of her disability as December 1, 2006, (id. at 96). The Commissioner denied her claims initially and on reconsideration. (Id. at 61-64.) Jones then requested, and was granted, a hearing before an administrative law judge ("ALJ"). After considering Jones's testimony and medical evidence, the ALJ concluded that she is not disabled as defined in the Social Security Act. (Id. at 29.) When the Appeals Council denied her request for review, (id. at 1-4), the ALJ's decision became the final decision of the Commissioner, see Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012). On June 9, 2011, Jones filed the current suit seeking judicial review of the ALJ's decision. See 42 U.S.C. § 405(g). The parties have consented to the jurisdiction of this court. See 28 U.S.C. § 636(c).


Jones was first diagnosed with asthma as a child and has suffered from asthma attacks throughout her life. In addition to her asthma symptoms Jones has experienced depression and a condition called gastroesophageal reflux disease ("GERD"), with related symptoms including chest tightness, abdominal pain, and bowel and urinary urgency. At her March 2010 hearing before an ALJ, Jones submitted both documentary and testimonial evidence in support of her disability claim.

A. Jones's Medical Evidence

In March 2007 Jones was hospitalized for one night after she experienced coughing and shortness of breath related to her asthma. (A.R. 208.) Jones's treating physician, Dr. Cynthia Ham, noted that she had run out of her medications and had been without them for several months. (Id. at 208, 210.) The admitting physician noted that Jones had been smoking about a quarter of a pack of cigarettes a day for the past 10 or more years. (Id. at 212, 214.) She was diagnosed with "[a]sthma exacerbation secondary to running out of her maintenance medication." (Id. at 215.) After Jones was given Albuteral and Atrovent nebulizer treatments every six hours, Dr. Ham noted that her "respiratory status improved tremendously overnight." (Id. at 208.) She was discharged with a social services consultation to help her with her prescribed medications, which included Advair and Albuterol inhalers and Prednisone. (Id. at 209.)

In January 2008 consulting physician Dr. Richard Bilinsky reviewed Jones's file and completed a physical residual functional capacity ("RFC") assessment at the behest of the Commissioner. (Id. at 228-235.) Dr. Bilinsky opined that Jones's impairments do not result in any exertional limitations, but that she requires a work environment that would allow her to avoid concentrated exposure to fumes, odors, dusts, gasses, or poor ventilation. (Id. at 229, 232.) Dr. Bilinsky commented that Jones's only asthma exacerbation was the March 2007 attack that resulted in her hospitalization and noted that "it appears the claimant's asthma has been controlled with medication." (Id. at 235.)

In the spring of 2008 the Bureau of Disability Determination Services asked Jones to undergo objective mental status and physical evaluations with consulting doctors. Clinical psychologist Michael Stempniak conducted the mental status examination. (Id. at 254.) Jones reported to Stempniak that she had "struggled with depression all of her life" and that it was "always there in the background." (Id. at 255.) After conducting his evaluation, Stempniak determined that Jones met the criteria for Major Depressive Disorder, but characterized her condition as "mild." (Id. at 257.) He noted that she "can concentrate with effort" and "seems capable of managing her own funds." (Id.) Dr. Roopa Karri conducted the physical examination. (Id. at 258-261.) Jones told Dr. Karri that she uses Prednisone and Proventil to treat her asthma, but she denied using a nebulizer. (Id. at 259.) Dr. Karri described her impression of Jones as including a "[h]istory of asthma since birth with prolonged expiration on exam" and depression. (Id. at 261.) Her report makes no mention of any stomach or digestive issues. (Id.)

In August 2008 Jones went to see an allergist, Dr. Michael Cavanaugh, to undergo a slate of allergy tests. (Id. at 289.) The tests revealed that Jones is reactive to a number of environmental allergens, including grass, dust mites, and mold. (Id.) Dr. Cavanaugh also administered a forced vital capacity test. Before taking medication, the result showed that Jones had mild obstruction, but after medication her capacity level was normal. (Id. at 292.) Dr. Cavanaugh physically examined Jones and filled out a report but his writing is almost completely illegible. (Id. at 293-96.) Jones's attorney asked Dr. Cavanaugh to complete a Pulmonary Residual Functional Capacity Questionnaire. (Id. at 299-302.) Again his writing on the form is by and large illegible, but from what can be deciphered, he diagnosed Jones as having asthma, allergies, and GERD, with symptoms including shortness of breath, chest tightness, wheezing, rhonci, edema, and coughing. (Id. at 299.) He wrote that she has chronic daily wheezing and wakes up every night with symptoms and that her attacks occur "daily." (Id. at 299-300.) When asked to estimate Jones's functional limitations resulting from her impairments, Dr. Cavanaugh wrote "I don't know" next to the question and declined to mark any of the boxes where he was asked to give an opinion about her exertional and non-exertional limitations. (Id. at 301-02.) He did opine, however, that her symptoms would "constantly" interfere with her ability to concentrate enough to perform even simple work tasks. (Id. at 300.)

In July 2009, Jones went to Dr. Fehmida Khan after she experienced symptoms of abdominal distress and indigestion. (Id. at 313.) To rule out the possibility of GERD, Dr. Khan scheduled Jones for an outpatient esophagogastroduodenoscopy-a mouthful of a title for a procedure that allows a doctor to view the upper portion of a patient's gastrointestinal tract. (Id. 311, 314.) The test revealed esophagitis and erosive gastritis in the stomach. (Id. at 311.) Dr. Khan recommended that Jones raise the head of her bed by four to six inches, wear garments that fit loosely around the abdomen, and avoid smoking, caffeine, and eating before bed. (Id. at 312.) A month after the procedure, Dr. Khan filled out a "Gastritis/Irritable Bowel Syndrome Medical Assessment Form" for Jones. (Id. at 331.) She listed Jones's diagnoses as GERD, abdominal gas or bloating, and asthma, but described her prognosis as being "good." (Id.) Dr. Kahn declined to complete the parts of the form that ask about the patient's limitations with attention and concentration or reactions to stress. (Id. at 331-32.) In the margins of the form Dr. Kahn wrote that "GERD & Gastritis do not cause impairment to work" and "do not cause patient to be absent from work." (Id. at 332-33.)

On March 15, 2010, five days after Jones's hearing before the ALJ, Dr. Cavanaugh submitted a supplemental asthma report (typed, this time) on Jones's behalf. (Id. at 345.) Dr. Cavanaugh wrote that her standard vital capacity tests "have varied from normal to mild," but the most recent test showed moderate obstruction. (Id.) He noted his "understanding that Ms. Jones would not meet a listing impairment under Section 3 based on the testing results." (Id.) He reported that Jones uses her nebulizer "regularly" and gets asthma attacks seven to eight times a month. (Id.) Although Dr. Cavanaugh is an allergist-not a gastroenterologist-he wrote without further explanation that Jones "has disabling symptoms from GERD which can cause chest tightness." (Id.) He reported that her GERD condition requires twice-daily medication, but that the state will pay for only a ...

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