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Lorenzo v. Astrue

United States District Court, Seventh Circuit

July 2, 2013

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant,


SUSAN E. COX, Magistrate Judge.

Plaintiff, Hector Lorenzo, seeks judicial review of a final decision of the Commissioner of the Social Security Administration ("SSA") denying his application for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act ("the Act").[1] Mr. Lorenzo has filed a motion for summary reversal, seeking to reverse the Commissioner's final decision or remand the case for consideration of the issues raised herein. The Commissioner has also filed a cross motion for summery of judgment. For the reasons set forth below, Mr. Lorenzo's motion for summary judgment is denied [dkt. 19] and the Commissioner's motion is granted [dkt. 27].

I. Procedural History

Mr. Lorenzo applied for DIB and SSI on June 22, 2009, alleging disability beginning October 1, 2006.[2] On November 3, 2009, Mr. Lorenzo requested a hearing before an Administrative Law Judge ("ALJ"), which was granted on August 11, 2010.[3] A hearing took place before ALJ Roxanne J. Kelsey in Orlando Park, Illinois, on September 20, 2010.[4] Following the hearing, the ALJ issued an unfavorable decision on October 27, 2010, concluding that Mr. Lorenzo was not disabled under sections 206(i) and 223(d) of the Act through December 31, 2007, the last date insured.[5] The Appeals Council denied Mr. Lorenzo's request to review the ALJ decision on February 1, 2012, meaning the ALJ's decision is the final decision of the Commissioner.[6]

II. Factual Background

The facts set forth under this section are derived from the administrative record. Mr. Lorenzo was born October 3, 1958, and was forty-nine years old on December 31, 2007, the date last ensured.[7] At 5'8" inches tall and 228.2 pounds at the time of the hearing, [8] Mr. Lorenzo was considered obese with a body mass index of 34.7.[9] Mr. Lorenzo alleged disability beginning October 1, 2006 and remained insured through December 31, 2007.[10] Mr. Lorenzo must establish that he became disabled during this period.[11]

Mr. Lorenzo listed several ailments in his application for benefits; the ALJ found only Mr. Lorenzo's congestive heart failure, hypertension, degenerative disc disease and obesity to be severe impairments.[12] We will limit our review to these four severe impairments.

A. Congestive Heart Failure and Hypertension

It is well documented in the record that Mr. Lorenzo has suffered from, and been treated for, congestive heart failure and hypertension since 2006.[13] According to the record, Mr. Lorenzo had four echocardiograms, and one stress test during the period in question.[14] The primary method of calculating Mr. Lorenzo's heart function was the ejection fraction of his left ventricle, which can be approximated from an echocardiogram, and more exactly measured during a stress test.[15] Philip Liebson, M.D., of the Rush University Heart Institute ("Heart Institute"), noted on October 6, 2006 that Mr. Lorenzo had an enlarged left ventricle, reduced heart contraction speed and efficiency.[16] As a result, Dr. Liebson estimated Mr. Lorenzo's ejection fraction, the portion of blood ejected from the left ventricle at the end of each heart contraction, to be ten to fifteen percent.[17] The normal, healthy, range for left ventricle ejection fraction is approximately between fifty-five to sixty-five percent.[18]

Mr. Lorenzo returned to the Heart Institute for a stress test ordered by Richard Abrams, M.D., an internist at Rush University, on October 16, 2006.[19] The test noted: (1) normal heart rate response to stress, (2) no chest pain, (3) a moderately reduced left ventricular ejection fraction of thirty-one percent, and (4) the symptoms were not reproduced under light activity.[20]

In a report to Dr. Abrams dated November 7, 2006 by Christian Spies, M.D., and R. Jeffrey Snell, M.D., the Director of Interventional Cardiology at the Heart Institute and Mr. Lorenzo's treating cardiologist, noted that Mr. Lorenzo was diagnosed with New York Heart Association Class II ("heart classification").[21] Mr. Lorenzo's heart classification means that he has "slight limitation of physical activity, " is "comfortable at rest, " and "ordinary physical activity results in fatigue, palpitation, dyspnea, or anginal pain."[22] On November 17, 2006 Mr. Lorenzo underwent another exam; Dr. Snell estimated a below average ejection fraction of thirty-five percent.[23] Mr. Lorenzo's estimated ejection fraction had improved from the ten to fifteen percent estimate on October 6, 2006.[24]

The following year, on March 26, 2007 Mr. Lorenzo visited the Rush University Emergency Room complaining of lower back pain which was aggravated by movement or bending.[25] During a physical exam, Anthony Zelazny, M.D., the attending clinician, noted a history of cardiac disease but found no heart murmurs, rubs or gallops.[26] On May 3, 2007, Mr. Lorenzo underwent a consultative examination with Norbert De Biase, M.D., who noted (1) uncontrolled hypertension but current medical treatment; and (2) his congestive heart failure was stable with current medical treatment.[27] Dr. Snell ordered another echocardiogram on May 22, 2007, which found a normally functioning left ventricle with an estimated ejection fraction within normal range, which was a marked improvement from his October 6, 2006 echocardiogram.[28] Mr. Lorenzo had a minor impairment of his left ventricle causing it to not fully relax and expand, which resulted in a smaller amount of blood pumped through the circulatory system with each contraction of the heart.[29] On December 4, 2007, in the last exam before the period in question ended, Dr. Snell found normal heart function, an ejection fraction within the normal range, and a mild asymmetric enlargement of his heart.[30]

In a residual function capacity assessment for the Social Security Administration on August 27, 2009, Frank Jimenez, M.D., noted that medical evidence supported the existence of congestive heart failure and hypertension.[31] Dr. Jimenez also noted Dr. Biase's consultive examination on May 3, 2007 that found both congestive heart failure and hypertension to be stable.[32] Finally, Dr. Jimenez noted that there was no evidence in the record of organ damage as a result of any of Mr. Lorenzo's heart conditions.[33]

B. Degenerative Disc Disease

As noted in the previous section, on March 26, 2007, Mr. Lorenzo was admitted to the Rush University Emergency Room complaining of lower back pain which was aggravated by movements such as bending.[34] Mr. Lorenzo described to Dr. Zelazny how he had fallen a few weeks earlier and injured his lower back.[35] Prior to March 2007, there is no medical evidence in the record of back pains.[36] Dr. Zelazny's examination noted mild compression of three vertebrae in the lower back which was considered temporary in nature[37] and bone spurs between vertebrae causing pain.[38] Mr. Lorenzo was prescribed Norco for his pain and the record noted that the maximum severity was mild, and that his back was tender but he appeared comfortable.[39]

Mr. Lorenzo underwent a consultive examination with Dr. Biase for the Bureau of Disability Determination Services on May 3, 2007. Dr. Biase noted significant decreased range of motion in his lower back and tenderness in his lower back and shoulders.[40] A spinal x-ray revealed growing bone spurs which caused pain.[41] Mr. Lorenzo was able to walk fifty feet unassisted at a slow pace but was unable to perform toe, heel, tandem, and squatting maneuvers because of pain in his back.[42] Dr. Biase concluded his examination by noting both Mr. Lorenzo's limited motion[43] and his uncontrolled and unmedicated back pain.[44]

In Mr. Lorenzo's residual function capacity assessment for the Social Security Administration on August 27, 2009, Dr. Jimenez considered Dr. Biase's consultative examination in determining Mr. Lorenzo's exertional and postural limitations.[45] Dr. Jimenez also noted normal grip strength, reflexes and feeling.[46] Dr. Jimenz found medical evidence for some of Mr. Lorenzo's complaints and determined him able to perform light work.[47] Dr. Jimenez found Mr. Lorenzo to be "partially credible" because of the inconsistencies between his complaints of back pain and the medical record.[48]

C. Obesity

During the period at issue, Mr. Lorenzo was between 222.6 to 245 pounds.[49] While Mr. Lorenzo's weight is noted throughout the medical record, he is never referred to as obese nor are there notations regarding his weight and how that affected his other impairments.[50] It is unclear which record the ALJ relied on in noting Mr. Lorenzo's BMI to be 34.7.[51] An individual with a BMI over 30.0 is considered obese.[52]

III. ALJ Hearing and Decision

The hearing before the ALJ occurred on September 20, 2010 in Orland Park, Illinois.[53] Mr. Lorenzo was present and represented by Agustin G. Garcia, an attorney.[54] Also present was Richard T. Fisher, a vocational expert ("VE").[55] On October 27, 2010, the ALJ concluded that Mr. Lorenzo was not disabled, "as defined in the Social Security Act, at any time from October 1, 2006, the alleged onset date, through December 31, 2007, the date last insured."[56]

A. Mr. Lorenzo's Testimony

Mr. Lorenzo began his testimony by confirming that he became disabled in October 2006, and that he lived with his parents and sister during the time in question.[57] Mr. Lorenzo also confirmed that he had a high school education and could read and write.[58] Mr. Lorenzo testified that before becoming ill in 2006, he had a number of jobs, the last of which was as a drywall installer.[59] From approximately 2004 to 2006, Mr. Lorenzo worked as a stock clerk and supervisor.[60] Mr. Lorenzo also worked part time for Avon sales throughout most of this time period.[61]

Mr. Lorenzo testified that between 2006 and 2007, he was diagnosed with congestive heart failure, high blood pressure, high cholesterol, and gout, as well as back problems.[62] Mr. Lorenzo testified that he believed he was prescribed hydrocodone for his back pain.[63] When Mr. Lorenzo became ill, he stopped drinking[64] and moved in with his parents and sister who helped take care of him.[65] Mr. Lorenzo testified that he was able to dress himself[66] but he suffered from shortness of breath, weakness in his hands and fingers, [67] and could not bend or squat.[68] Mr. Lorenzo testified that he was told his breathing was hindered due to his heart condition, which also caused him to become easily fatigued.[69] Mr. Lorenzo testified that he was dependant on his parents and sister for housework, laundry, groceries and transportation.[70] Mr. Lorenzo also testified that he became tired after only short walks, and spent most of his time watching television or napping.[71]

Next, the ALJ asked about Mr. Lorenzo's memory during the time in question, he testified that it was "pretty good, " but his heart medication caused him to have difficulty following news stories.[72] As a followup, the ALJ told Mr. Lorenzo that she was trying to assess his mental functioning and asked if he was "unable to understand, or just not interest."[73] Mr. Lorenzo testified that he was "not ...

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