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Rinaldi-Mishka v. Astrue

United States District Court, Seventh Circuit

July 8, 2013

ANTONIETTA RINALDI-MISHKA, Plaintiff,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM OPINION AND ORDER

MARIA VALDEZ, Magistrate Judge.

This action was brought under 42 U.S.C. § 405(g) to review the final decision of the Commissioner of Social Security denying Plaintiff Antonietta Rinaldi-Mishka's ("Rinaldi-Mishka" or "Claimant") claim for Disability Insurance Benefits. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow, Rinaldi-Mishka's motion for summary judgment [Doc. No. 14] is granted in part and denied in part. The Court finds that this matter should be remanded to the Commissioner for further proceedings.

BACKGROUND

I. PROCEDURAL HISTORY

Rinaldi-Mishka originally applied for Disability Insurance Benefits on April 2, 2008, alleging disability since July 15, 2006. (R. 36) Her application was denied initially on July 16, 2008 and upon reconsideration on November 13, 2008. ( Id. ) Rinaldi-Mishka filed a timely request for a hearing by an Administrative Law Judge ("ALJ"), which was held on March 23, 2010. ( Id. ) Rinaldi-Mishka personally appeared and testified at the hearing and was represented by counsel. ( Id. ) A vocational expert also testified. ( Id. )

On October 20, 2010, the ALJ denied Rinaldi-Mishka's claim for benefits and found her not disabled under the Social Security Act. (R. 46.) The Social Security Administration Appeals Council denied Rinaldi-Mishka's request for review (R. 1-3), leaving the ALJ's decision as the final decision of the Commissioner and therefore reviewable by the District Court under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).

II. FACTUAL BACKGROUND

A. Background

Rinaldi-Mishka was born on January 19, 1971. (R. 164.) She married her current spouse in 2002 and has a six year old daughter. (R. 165.) She worked as a customer service representative for FedEx for seventeen years, from 1994 through 2006, (R. 173-76), and continued to work there for one hour per day, five days a week, from July 2006 through February 2008. (R. 192.) Rinaldi-Mishka claims disability due to degenerative lumbar disc disease, cervical spine disc herniation, carpal tunnel syndrome, left elbow epicondylitis, and mental impairments of depression and anxiety related disorder. (R. 38.)

In her application, Rinaldi-Mishka reported that she is in pain most of the day. (R. 219.) She can no longer write, type, use the phone, sit, or lift objects with any regularity. (R. 216.) The pain also affects her at night and prevents her from sleeping more than three or four hours. ( Id. ) She wakes up with swollen fingers and her hands often cramp. (R. 222.) She reported neck and back pain, numbness, tingling in her hands, and throbbing in her elbows, (R. 216), and has trouble lifting more than five pounds, bending over, standing, sitting, climbing the stairs, using a pen or pencil, and more (R. 220, 224)-in short, virtually every activity of daily life causes her pain. She attributes the pain to degenerative disc disease in her neck and lower back. (R. 225.) She also started wearing a brace for her left elbow in 2006. (R. 221.)

Rinaldi-Mishka takes part in household duties on a limited basis. She shares child care responsibilities with her husband and mother. (R. 215.) She prepares food on a daily basis, but her cooking is much more limited recently, and she requires help with cooking, cleaning, laundry, and a weekly shopping trip. (R. 217-18.) Her husband does most of the house and yard work. (R. 218.) She reported no hobbies, no regular social activities, and no regular excursions. (R. 219.)

B. Testimony and Medical Evidence

1. Rinaldi-Mishka's Testimony

Rinaldi-Mishka testified that she suffers from constant pain in her fingers, hands, elbows, neck, shoulder, lower back, and right hip, and the pain worsened from 2006 until the time of her hearing. (R. 61.) She attributed the upper body pain to carpal tunnel syndrome, degenerative disc disease and herniated discs, and said that she assumed she was referred to a rheumatoid arthritis doctor for the hip pain. (R. 61-62.) She received no treatment for the neck and lumbar back pain; she had physical therapy for the carpal tunnel in her hands and elbows. (R. 62.) Two doctors suggested surgery as an option, but the claimant chose not to proceed. (R. 73.) She said that she feared it could make her condition worse, based in part on the experiences of her mother-in-law and a coworker, both of whom had multiple surgeries for similar problems without success. ( Id. )

Rinaldi-Mishka has carpal tunnel in both hands, which causes her hands to cramp when she holds objects. (R. 64.) Some days are worse than others. (R. 70.) She can sometimes pick up and drink a cup of coffee, can pick up coins, and can use a pen, button or zip a shirt, and tie shoes. (R. 65.) These tasks now take her longer than they did before: writing a few checks now takes her thirty minutes, while in the past she reported being much faster at it and requiring fewer breaks. (R. 71.) She uses a computer to check her email, but stays on for no more than fifteen minutes. (R. 65-66.) If she types for ten minutes, she requires a minimum break of fifteen minutes, then can return to typing for another ten minutes. (R. 76.) Her husband carries the groceries and the laundry bag; she limits how much she must lift objects at home, and lifting a gallon of milk "is a chore." (R. 66.) She has also chaperoned two three-hour school field trips, which required watching the children but "nothing physical, " and she attends church services but cannot kneel and finds the sitting difficult. (R. 66-67.) She said she can stand for thirty to forty five minutes, sit for fifteen to twenty minutes without shifting, and walk four to six blocks before the pain makes it too difficult. (R. 63.)

In terms of medications, Rinaldi-Mishka testified that she takes Xanax as needed in order to deal with anxiety, generally once or twice per week. (R. 77.) After taking a dose of Xanax, she sits for fifteen to twenty minutes and finds that the anxiety subsides within an hour. (R. 78.) She struggles to sleep and takes Ambien a few times per week to help her rest, but she generally cannot take the pain medications prescribed to her because they cause bothersome side effects, including drowsiness, stomach discomfort, and light-headedness. (R. 63, 78.)

The claimant testified that while she had worked for one hour per day without difficulty prior to claiming disability, she could not have handled returning to an eight-hour workday in her previous work: she could not perform the repetitive tasks of writing, typing, filing, and phone use. (R. 69.) She also testified that she had a workers' compensation claim, which settled for $200, 000 in November 2008. (R. 68.)

2. Medical Evidence

Dr. Mohammed Alawad examined Rinaldi-Mishka on April 29, 2006, noted her right elbow pain and finger pain, and ordered her to take a reduced work schedule. (R. 280.) He continued to treat her, as described below. (This summary of the medical evidence is roughly chronological.)

Dr. Rolando Garces treated the claimant for right arm pain in June 2006, diagnosing lateral epicondylitis and ordering her to avoid lifting more than three pounds, wear a brace, and limit the use of her right arm. (R. 261-63.) Upon a referral from Dr. Alawad, Dr. Hamid Mohazab examined the claimant's right elbow and found it unremarkable. (R. 342.)

Dr. Harun Durudogan treated Rinaldi-Mishka for right lateral epicondylitis and right arm radiculopathy beginning in July 2006, restricting her from working with her right upper extremities in July and adding restrictions on lifting, pushing, pulling, and carrying more than two pounds and on repetitive activity for more than fifteen minutes with her right arm in September. (R. 310-11.) He gave the claimant an injection in her right elbow in August and prescribed additional non-surgical treatments. (R. 360.) He also put the claimant on an occupational therapy program, beginning in July, (R. 361), and saw her at least three times in August, reporting that using light compression during sleep and a counter force cuff during waking hours produced a "good result." (R. 460.) While he found her right hand and wrist had a range of motion "within functional limits, " the grip and pinch strength indicated a moderate impairment when compared with her left hand. ( Id. ) Dr. Durudogan rechecked her right lateral epicondylitis in September and found that she still had a radiating pain in her arm, and she reported episodes of burning pain in her neck. (R. 358.) He kept her on the occupational therapy program and other treatments. ( Id. ) At her further follow-up occupational therapy appointments, Rinaldi-Mishka reported continued pain in her wrist that limited her gripping ability. (R. 482.) At a follow up later in September she had regained grip strength in her right wrist to make it comparable to her left, while also seeing improvement on other aspects of her wrist strength and a decrease in pain. ( Id. ) But one week later, her pain increased and symptoms returned. ( Id. ) Dr. Durudogan felt that Rinaldi-Mishka "would benefit from surgical intervention, " and discussed the risks and benefits with her at length in September. (R. 357.) He indicated that she would be able to return to work the day after that visit. (R. 401.) Rinaldi-Mishka called to report that another doctor had discontinued her occupational therapy until after surgery, stating that she planned to schedule the surgery no earlier than the end of October. (R. 482.) She reported by phone in November that her symptoms remained significant and that a second doctor, Dr. Anton Fakhouri, had recommended surgery. ( Id. )

In September 2006, upon a referral from Dr. Durudogan, Dr. Mohazab took an MRI of claimant's cervical spine and diagnosed broad based left paracentral herniation at the C6-7 level and post central disc herniation at C5-6. (R. 290.) An MRI of claimant's right elbow led Dr. Joel Leland to indicate a minimal amount of fluid at the distal biceps tendon, "which may be secondary to mild tendonitis." (R. 291.)

In October 2006, Dr. Fakhouri diagnosed lateral epicondylitis in the right elbow with radial tunnel syndrome and right carpal tunnel syndrome. (R. 284.) Claimant was told that she could discontinue her use of a forearm strap, but could and did continue to wear a wrist splint while continuing to take non-steroidal anti-inflammatory medication, although the doctor believed that this treatment "would not resolve her condition." (R. 282.) Dr. Fakhouri presented the option of surgery, which would allow a return to light work in two to three weeks and full work in two to three months. ( Id. ) Dr. Fakhouri suggested no lifting, carrying, pulling or pushing more than five pounds. (R. 282, 284.) In response to claimant's complaints about wrist pain, the doctor also suggested typing no more than ten minutes per hour and writing no more than ten minutes per hour, and recommended a return to work limited ...


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