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Thomas v. Colvin

United States District Court, Seventh Circuit

June 7, 2013

CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.


SHEILA FINNEGAN, District Judge.

Plaintiff Mildred Thomas seeks to overturn the final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") 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 Plaintiff has now filed a motion for summary judgment. After careful review of the record, the Court denies Plaintiff's motion and affirms the decision to deny benefits.


Plaintiff applied for DIB and SSI on December 29, 2009, alleging that she became disabled on June 14, 2009 due to sciatica, high blood pressure, diabetes, fibromyalgia, asthma, a "heart condition, " arthritis and high cholesterol. (R. 185-88, 192-94, 222). The Social Security Administration denied the applications initially on March 19, 2010, and again upon reconsideration on August 9, 2010. (R. 47-63). Plaintiff filed a timely request for hearing and appeared before Administrative Law Judge Roxanne J. Kelsey (the "ALJ") on March 2, 2011. (R. 28). The ALJ heard testimony from Plaintiff, who was represented by counsel, as well as from vocational expert Glee Ann L. Kehr (the "VE"). Shortly thereafter, on April 12, 2011, the ALJ found that Plaintiff is not disabled because she can perform her past work as a phlebotomist. (R. 12-20). The Appeals Council denied Plaintiff's request for review on April 26, 2012, (R. 1-3), and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner.

In support of her request for remand, Plaintiff argues that the ALJ: (1) made a flawed credibility assessment; (2) improperly ignored the effects of her non-severe impairments in determining her residual functional capacity ("RFC"); (3) erred in failing to order a pulmonary function test; and (4) violated her Due Process and Equal Protection rights under the Fifth and Fourteenth Amendments by failing to obtain a medical source statement from the consultative examiner. As discussed below, the Court finds that the ALJ's decision is supported by substantial evidence and need not be reversed or remanded.


Plaintiff was born on November 26, 1949, and was 61 years old at the time of the ALJ's decision. (R. 185). She has a GED and spent 14 years working at a hospital, first as a phlebotomist and then as a phlebotomist/patient care technician. (R. 29, 224). She was fired from her job on December 13, 2006 and has not worked since that time. (R. 223).

A. Medical History

1. 2009

The first available medical record is from January 22, 2009, when Plaintiff went to the emergency department at Provident Hospital of Cook County ("Provident") complaining of chest pain and shortness of breath occurring intermittently for the previous three weeks. (R. 363, 376). Plaintiff stated that she experienced this "substantial chest pain" (level 9/10 and radiating to her left shoulder) upon walking short distances, but got relief with rest. (R. 376). Though Plaintiff did not report any pain while at the hospital, she was admitted for further testing. (R. 363). A chest x-ray showed no active cardiopulmonary pathology, (R. 396), and she was discharged the next day with a diagnosis of stable angina, hypertension, diabetes, chronic obstructive pulmonary disease ("COPD"), and arthritis in the lower back. (R. 375).

On May 4, 2009, Plaintiff saw Masie Isabell, M.D., of the Cook County Englewood Health Center (the "Englewood Center"), for low back pain and left thumb pain lasting 3 days. (R. 324). The treatment notes are difficult to read but it appears that Dr. Isabell recommended a stress test. ( Id. ). Plaintiff next saw Dr. Isabell for a routine check-up on August 20, 2009. She denied having any pain at that time but apparently asked the doctor about fibromyalgia. (R. 323 ("Pt. ?? Fibromyalgia."). Dr. Isabell diagnosed arthralgia, diabetes, and hypertension, and noted that Plaintiff had "trigger finger pain."[2] ( Id. ) A few months later, on August 21, 2009, Plaintiff had x-rays of her hips and pelvis. The tests were normal, with no evidence of fractures, dislocations or significant degenerative changes. (R. 361).

Plaintiff returned to Dr. Isabell on October 14, 2009 complaining of heart palpitations caused by her medications (Enalapril and Celebrex). Dr. Isabell adjusted the medications at that time. (R. 322). Shortly thereafter, on December 9, 2009, Dr. Isabell gave Plaintiff a steroid injection for "left thumb trigger finger." (R. 321, 350). Later that month, on December 20, 2009, Plaintiff applied for disability benefits.

2. 2010

On March 5, 2010, M. S. Patil, M.D., completed an Internal Consultative Examination of Plaintiff for the Bureau of Disability Determination Services ("DDS"). (R. 334-37). Plaintiff told Dr. Patil that when she walks more than half a block, she experiences shortness of breath (dyspnea) and sharp, non-radiating chest pain lasting 5 to 10 minutes. (R. 334). The pain is relieved with nitroglycerine, and has never resulted in hospitalization. Plaintiff denied having shortness of breath while at rest, and said that her asthma was "under control" with inhalers. She did not provide any "details regarding precipitating factors, frequency or duration of asthma attacks, " and similarly had no complaints relating to her diabetes "at the present time." ( Id. ). Plaintiff did complain, however, of "constant, moderate pain in her back radiating down the left leg, " as well as "sore spots throughout the body" she claimed to know was fibromyalgia. ( Id. ). She told Dr. Patil that the back pain bothers her when she does chores around the house, stands or walks for more than five minutes, or climbs a flight of stairs. ( Id. ). She also described "moderate stiffness" in her back and hips when she gets out of bed in the morning. (R. 334-35). Plaintiff stated that she "ha[s] arthritis... and sciatica, " and that her pain medication and muscle relaxers, "do not help." (R. 335).

On physical examination, Dr. Patil described Plaintiff's breath sounds as normal bilaterally, with no wheezing or basilar rales. ( Id. ). He observed that she is "extremely obese" and has some reduced range of motion in her lumbar spine (20/25 on extension and lateral bending; 50/60 on flexion; and 50/90 on flexion). (R. 336). He also found "[f]ull range of motion of all joints" except for 30/40 on hip abduction, 30/40 on hip internal rotation, 40/50 on hip external rotation, and 140/150 on knee flexion. ( Id. ). Plaintiff's motor strength was 5/5 in her upper and lower extremities, her fine and gross manipulative movements of the hands and fingers were within normal limits, and she could "oppose thumbs and make good grips." ( Id. ). She had some difficulty getting on and off the exam table and doing squats and arises, but her gait was normal, she was able to walk 50 feet without any assistive devices, and she had no problem tandem walking, walking on heels and toes, or getting up from a chair. ( Id. ).

Dr. Patil diagnosed Plaintiff with chronic primary hypertension, atypical chest pain, diabetes mellitus, chronic bronchial asthma, extreme obesity, and history of arthritis, fibromyalgia and sciatica. (R. 337). There was no evidence of neurovascular deficits, pedal edema, anemia, chronic foot ulcers, congestive heart failure, stroke, pulmonary thromboendarterectomy, or deep vein thrombosis, and Plaintiff's blood pressure was normal. In addition, her lungs were clear with no cyanosis or acute airway compromise, and her two bronchodilators "help her considerably." ( Id. ). Dr. Patil observed that there was no deformity, redness, swelling or tenderness of any joint, and peripheral pulses and sensation were normal bilaterally. Plaintiff's gait, speech, hand dexterity and mentation were normal as well. ( Id. ). Dr. Patil confirmed that the August 2009 x-ray of Plaintiff's left hip was negative, and took a new x-ray of her lumbosacral spine. Though it was difficult to obtain a complete picture due to Plaintiff's size, the test did show what appeared to be "a transitional vertebra at lumbosacral junction, " and "[t]he disc space immediately superior to this was narrowed." ( Id. ). There was also "sclerosis about the articular facets, " and "suggestion of moderate spondylosis at the L5-S1 level, " but no evidence of compression fracture deformity. (R. 337, 338).

Three days later, on March 8, 2010, Plaintiff returned to her treating physician, Dr. Isabell, complaining of hip, shoulder and back pain at a level of 10/10 despite taking tramadol and amitriptyline. (R. 348). The diagnoses included hypertension, fibromyalgia, and sciatica, and Dr. Isabell encouraged Plaintiff to "move." ( Id. ). The next day, on March 9, 2010, Charles Kenney, M.D., completed a Physical Residual Functional Capacity Assessment of Plaintiff for DDS. (R. 325-32). Dr. Kenney found that Plaintiff can: occasionally lift 20 pounds; frequently lift 10 pounds; stand, walk and sit for about 6 hours in an 8-hour workday; and push/pull without limitation. (R. 326). Dr. Kenney found no other postural, manipulative, visual, communicative or environmental limitations, and confirmed that the RFC was consistent with the medical opinions of record. (R. 327-29, 332).

When Plaintiff saw Dr. Isabell again on May 6, 2010, she said that her shoulder, hip and back pain had been at a constant level 10/10 since March. She also complained of twitching in her fingers and toes on the left side. (R. 347). Her pain medications included tramadol, Robaxin, gabapentin and ibuprofen. ( Id. ). At a June 17, 2010 visit, Plaintiff continued to complain of chronic back pain at a level 6/10. She also said that her left leg was "giving way, " so Dr. Isabell prescribed an Ace bandage wrap. (R. 346, 402). A couple months later, on September 3, 2010, Plaintiff started seeing Titilayo Abiona, M.D., at the Englewood Center and reported sharp back pain radiating to her left leg at a level 10/10, as well as dizziness and pain in her buttocks. Dr. Abiona added radiculopathy and vertigo to Plaintiff's diagnoses, increased her dosage of amitriptyline, and recommended that she have an x-ray and CT scan of her lumbar spine. (R. 400-01).

Throughout November 2010, Plaintiff saw Dr. Isabell and Dr. Abiona three more times for fibromyalgia, pain in the lower back, leg and shoulder, and "pain all over" ranging from a level 6 to 9/10. (R. 398-99, 404, 405). She also mentioned chest pain upon walking and was advised to take nitroglycerine as needed. (R. 398-99). Plaintiff was assessed as stable as of November 19, 2010, (R. 404), and Dr. Isabell ordered some x-rays and MRIs to rule out sciatica. (R. 405).

3. 2011

Plaintiff had an MRI of the lumbar spine on February 1, 2011. The test showed "[d]esiccation [dryness] of the intervertebral disc at L4/S1 associated with mixed Modic types I and II and III degenerative changes involving the vertebral endplates."[3] (R. 409). The test also revealed "[m]ild degenerative changes involving bilateral facet joints at the levels of L1/L2 through L5/S1, " and "L5/S1 circumferential disc bulge effacing ventral epidural and narrows bilateral inferior neuroforamina." ( Id. ). The ...

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