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Orienti v. Astrue

United States District Court, N.D. Illinois

August 7, 2013

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant

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For Cynthia J. Orienti, Plaintiff: Barry Alan Schultz, Law Offices of Barry Schultz, Evanston, IL.

For Michael J. Astrue, Commissioner of Social Security, Defendant: Katherine Ellen Beaumont, LEAD ATTORNEY, United States Attorney's Office (NDIL), Chicago, IL.

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Cynthia Orienti seeks review of the final decision of the Commissioner of the Social Security Administration, denying her application for Disability Insurance Benefits (" DIB" ) under Title II of the Social Security Act (" Act" ), 42 U.S.C. § 403(d)(2), and Supplemental Security Income (" SSI" ) under Title XVI of the Act 42 U.S.C. § 1382c(a)(3)(A). Ms. Orienti asks the court to reverse and remand the Commissioner's decision or for additional proceedings. The Commissioner seeks an order affirming the decision.



Ms. Orienti applied for Disability Insurance Benefits and Supplemental Security Income on January 30, 2007, alleging a disability onset date of May 9, 2003 (Administrative Record (" R." ) 57). Her claims were initially denied on May 4, 2007, and again, upon reconsideration, on July 2, 2007. (R. 75, 81). Ms. Orienti then requested an administrative hearing. ( R. 89). An Administrative Law Judge (" ALJ" ) presided over the hearing on January 12, 2009, at which Ms. Orienti, represented by counsel, appeared and testified. (R. 31). On April 14, 2009, the ALJ issued a decision that denied Ms. Orienti's claims. (R. 64). Ms. Orienti then requested review by the Appeals Council, which was denied on January 6, 2011. (R. 72). Ms. Orienti has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).




The Vocational Evidence

Ms. Orienti was born on November 27, 1956 and was 52-years-old on the date

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that the ALJ issued his decision. (R. 57). She is divorced with no children and lives with her mother. (R. 34). Ms. Orienti first said she stopped working at UPS due to fumes from the trucks. (R. 35). She added that she later injured her wrist while working and was then laid off. Id. Her previous positions include waitress, telephone solicitor, and order clerk. (R. 51-52). She has not worked since 2007. (R. 244).


The Medical Evidence

There is only a thin record of medical evidence in the record. Three emergency room visits and a consultative examination make up the bulk of medical evidence that Ms. Orienti put forward to substantiate her claim. Ms. Orienti's first emergency room visit in the record is on February 15, 2006 at Westlake Hospital where she complained of shortness of breath. (R. 261). The report showed chest congestion consistent with cold symptoms and acute bronchitis, but she had clear lungs and a 97% oxygen saturation rate. (R. 287). She left before being seen by a doctor.

On February 21, 2006, Ms. Orienti was examined at the Access Alma Comp Medical Center. (R. 271). Those medical records confirm a diagnosis of acute bronchitis and mention bilateral expiratory wheezing. (R. 275). Everything else about the exam returned normal results and there was no evidence of any complaint or any finding of mental health issues. Id. Ms. Orienti's weight was recorded at 180 lbs. (R. 274). The notes also state that Ms. Orienti was a smoker at the time. (R. 273).

Following this exam, on March 8, 2006, Ms. Orienti returned to the clinic complaining of headaches. However, before any detailed examination or treatment was documented, Ms. Orienti left and told doctors that she would return but never did. (R. 271). At these examinations at Westlake and Access Alma, her only two episodes of hospital visits from 1992 to 2006, Ms. Orienti made no claims of any mental or psychological illness or impairment.

An April 16, 2007 consultative evaluation by Dr. Sandra Hare, M.D. returned normal lung function results, with the exception of some coughing and wheezing during the examination. (R. 48). At that exam Ms. Orienti said that she had not used her inhaler for the past six months. (R. 276). The report noted Ms. Orienti's claim of an unknown left wrist surgery in 2006 and a 2012 right wrist injury in a motor vehicle accident. (R. 277). However, Ms. Orienti demonstrated normal fine and gross motor skills, finger grasp and hand grip was 5/5 bilaterally, and she had a full range of motion of all joints. (R. 278).

Ms. Orienti also alleged that she was vomiting " every time she eats. " But oddly, she denied any weight loss and weighed 186 lbs. (R. 277)(emphasis supplied). She also denied any history of drug use and any allergies. (R. 276-77). She denied any psychiatric hospitalization, and Dr. Hare noted that Ms. Orienti was " alert and oriented," she had normal hygiene, " [h]er recent and remote memory was intact," and she " had a serious, polite, and sincere demeanor." (R. 279).

On May 3, 2007, Dr. Towfig Arjmand, M.D. performed a Physical Residual Functional Capacity (" RFC" ) Assessment on Ms. Orienti. Dr. Arjmand determined that there was no medical evidence to verify Ms. Orienti's claim that she had contracted hepatitis-C. Dr. Arjmand also reported that the " severity and duration of the symptoms were disproportionate to the expected severity or expected duration" of her medically determinable impairments of asthma and hepatitis-C. (R. 285). Ms. Orienti requested a re-examination but

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failed to show up for the appointment. (R. 290).

In a final emergency room visit to Stroger Hospital on August 16, 2007, Ms. Orienti was diagnosed with an exacerbation of her COPD and dyspepsia. (R. 295). Her symptoms included abdominal pain and vomiting blood. (R. 292). However, the medical record shows regular and clear breathing, with no rales, rhonchi, or wheezing. Id. She was instructed to contact her primary care physician for an appointment. Id. There is no evidence on the record of any follow up appointment.

It is not until a series of records documenting three visits to the DuPage Community Clinic from October 23, 2008, to November 4, 2008 -- well after she applied for benefits and shortly after she hired counsel -- that Ms. Orienti's complaints of various mental health symptoms appeared. (R. 298-99, 310). The documents contained no diagnosis or record of treatment and, despite her earlier claims, Ms. Orienti admitted to abusing marijuana until only four months prior. (R.310). She also stated that she used crack until two to three years prior and had been arrested for selling to an undercover cop in 1989. Id. She weighed 184 lbs. at the time of the exam. It is at this point, about two months before her administrative hearing, that Ms. Orienti first told a medical professional about her feelings of paranoia, past suicide attempt, and struggles with depression and autism and personality disorders as a child. (R. 310).

On November 6, 2008, Ms. Orienti underwent a Pulmonary Function Test (" PFT" ) to assess her lung function with respect to her allegation of COPD. (R. 306). Her performance of the activities necessary for the test did not meet the minimum criteria necessary to provide valid test results. Id.


The Administrative Hearing Testimony


Ms. Orienti's Testimony

Despite the thin record of medical treatment and diagnoses, which do not support Ms. Orienti's present claim, she attributed several medical conditions as the causes of her current symptoms. She testified that she had experienced difficulty breathing due to asthma since she was four years old and been diagnosed with chronic obstructive pulmonary disease (" COPD" ). (R. 276). According to Ms. Orienti, her breathing problems had become so bad that she had problems breathing even when she was just lying in bed and she coughed and choked a lot. (R. 38).

Ms. Orienti asserted that she suffered from hepatitis-C, but she did not know how she contracted the disease and denied any activities where she might have been exposed to the virus. (R. 276). She testified that she was unable to hold food down due to the condition. (R. 227). In fact, she claimed she vomited " every time she ate. (R. 277).

At her administrative hearing, Ms. Orienti testified that she began having problems at her last job unloading packages from trucks. (R. 35). She stated that she kept losing her breath, and the fumes from the trucks made it difficult for her to breathe. (R. 35). According to her testimony, she also injured her left wrist, was laid off, and needed surgery to repair torn ligaments. (R. 35-36).

Ms. Orienti also testified that she had knee surgery following a fall. (R. 44). She stated that she was often in pain and had trouble walking and lying down because of pain in her knee. Id. She claimed that she could only climb 6 or 7 stairs

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because of stiffness in her ankles. (R. 203).

She also stated that she had surgery on both wrists and that she suffered from arthritis in both of her wrists and her knee. (R. 202, 243). According to Ms. Orienti, the right wrist surgery dated back to a 1992 motor vehicle accident. (R. 277).

While she testified that she was a smoker for 30 years, her testimony at her hearing was in conflict with her prior statements to doctors about how long ago she recently stopped smoking. (R. 276). She said she was unable to remember exactly when she stopped smoking, and when the ALJ questioned her about discrepancies in her responses in the record she responded, " [m]aybe about two years ago." (R. 37). She also indicated that she had not used crack since 2005 or 2006. Id. She testified that she was on disability from 1991-1997 for abusing marijuana and a " severe personality disorder." (R. 37-38). However, this testimony is at odds with her previous statement to the DuPage Community Clinic that she received benefits from 1987-1991 due to an autism diagnosis. (R. 310).

After her initial application for DIB and SSI, in a subsequent medical examination, Ms. Orienti claimed that she was depressed. (R. 308). She traced the condition back to her fiancé 's murder in 2000. Id. She also testified that she was undergoing psychiatric treatment for depression. (R. 38-39). She stated that she was unable to interact with others, even fighting with her adopted mother whom she lived with, and only felt safe in her room. (R. 39, 41).

Her testimony described how she was only able to fall asleep at 6:00 or 7:00 in the morning because she has a fear of " someone doing something to her" and she had to listen for " things." (R. 41-42). She suggested that her fiancé 's murder in 2000 contributed to these feelings. (R. 42). She claimed that she had trouble focusing on things and described how she cannot read a book or watch television because she cannot focus on one thing at a time. (R. 42). A public employee assigned to Ms. Orienti's mother visited the home twice a week to do all of the household activities. (R. 43).

According to her testimony, in 2008 she began seeing a psychologist weekly for several months and had been referred to a psychiatrist whom she had seen for the first time several days before the hearing. (R. 40). However, from her fiancé 's death in 2000 until 2008 she did not seek any psychiatric counseling and did not produce any documentation of any current treatment. (R. 45).

She acknowledged that she had a " low income medical" card with the Du Page Community Clinic for her healthcare. (R. 45).


The Medical Expert's Testimony

Dr. Bernard Stevens, M.D. testified as a medical expert (" ME" ) at Ms. Orienti's hearing. (R. 46). Dr. Stevens confirmed that she did suffer from asthma but he could not conclusively determine whether she had COPD. (R. 47-48). According to the ME, the ambiguity in diagnosing the COPD was a result of a lack of " full cooperation" during her PFT. Id. The test was deemed not valid because Ms. Orienti's performance failed to meet the testing criteria. (R. 307).

In his testimony, Dr. Stevens found that the lack of consistent hospital stays or emergency room visits indicated that the condition was " not that severe." (R. 48). Based on her record of asthma, according to Dr. Stevens' testimony, Ms. Orienti would require occupational restrictions for atmospheric pollutants, temperature extremes,

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and humidity, but not any exertional limitations. Id.

Dr. Stevens also noted that Ms. Orienti's blood chemistry revealed normal albumin levels, indicating that if she does have viral hepatitis that it has not progressed to cirrhosis. (R. 49). The record did not contain detail about any surgery or injury to Ms. Orienti's wrists or knee so Dr. Stevens was unable to reach any conclusions about these conditions. (R. 47). Overall, he found that Ms. Orienti's ...

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