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Dzurko v. Colvin

United States District Court, Seventh Circuit

December 26, 2013

KIM A. DZURKO, Plaintiff,
CAROLYN W. COLVIN, [1] Commissioner of Social Security, Defendant.


JOHN J. THARP, Jr., District Judge.

Kim Dzurko seeks judicial review of the Commissioner of Social Security's determination that she is not disabled, and therefore ineligible to receive disability insurance benefits. Now before the Court are the parties' cross-motions for summary judgment. Dkts. 17, 20. For the following reasons, Dzurko's motion is granted, the Commissioner's motion is denied, and the case is remanded to the Commissioner for further proceedings.


A. Procedural Background

On February 23, 2009, Dzurko filed a claim for a period of disability and to receive disability insurance benefits with the Social Security Administration, alleging that she became disabled on February 9, 2009 and is no longer able to work. The Commissioner denied her claim and her request for reconsideration. Dzurko requested and received a hearing before an administrative law judge ("ALJ"). After Dzurko waived her right to representation and proceeded pro se at the administrative hearing, the ALJ denied her claim. The Social Security Council subsequently denied her request for review, leaving the ALJ's decision as the final decision of the Commissioner. See Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013). Dzurko filed this action seeking review of that final decision pursuant to 42 U.S.C. ยง 405(g).

B. Factual Background

Dzurko was born on May 5, 1969, and was 39 years old when she filed for disability. R. 28.[2]She has a GED, a certified nursing assistant ("CNA") license, and a food service license. She lives in Wilmington, Illinois, with her husband and 16-year-old nephew. Dzurko began working at age 16; from 1998 through 2001, she had her own restaurant at a flea market. Between 2001 and 2009, Dzurko worked as a CNA and home health care provider. She attests that since February 9, 2009, she has not been able to work because of limitations related to, among other ailments, chronic disabling foot pain, arthritis, somatic dysfunction, degenerative joint disease, avascular necrosis, obesity, and the effect of her medications.

C. Medical Evidence

Dzurko has seen several doctors and undergone numerous clinical tests to diagnose and treat her pain and other ailments. Her most severe pain-related issues affect her right foot and ankle, on which she had surgery in 2003 following an injury. R. 65, 74. The Center for Foot and Ankle Surgery, where the surgery was performed, reports that she has not been seen by the office since 2006. R. 431. Records from Morris Hospital show that Dzurko visited its pain management center and reported pain in her feet and ankles in 2006. R. 293. Dr. Maria Estilo prescribed medication and diagnosed her with "1. [c]hronic right foot pain, status post right foot surgery, 2/15/05, more somatic, CRPS controlled[; and] 2. [c]ystic changes, right lateral cuneiform bone, talar dome, bilateral cystic changes in the inferior aspect of the talus; osteoarthritic changes of the right posterior talocalcaneal joint; hallux valgus deformities, bilateral feet (CT scan, 2/9/04)." R. 293. Clinical tests conducted in 2007 revealed arthritis, a subchondral cyst, and cystic changes in Dzurko's feet and ankles. R. 328-29.

Dzurko also saw Dr. Gary Golden for pain management. R. 72, 212, 335-400, 412-27. His notes indicate that on February 5, 2008, Dzurko injured her back and neck when she fell down stairs because her right ankle gave out. R. 382. She was then instructed to stop any activity that causes or increases pain. R. 386. On July 9, 2008, she "turned, twisted, felt a pop in the right foot" while at work and was subsequently placed on crutches. R. 369. Diagnostic imaging tests from March 2009 indicated degenerative changes in Dzurko's right foot that raised the suspicion of avascular necrosis. R. 330, 333-34. Dzurko also consulted an orthopedic surgeon in March 2009, who reported that Dzurko's MRI results indicated no avascular necrosis but possible secondary degenerative cysts. R. 451, 453. The surgeon noted, "I am hesitant at offering her any surgical intervention currently and I do believe that it is her subtalar joint which is causing the majority of her symptoms. However, she has a lot of supratentorial overlap and her back pain and symptoms, including those in her upper extremities, sometimes predominate." R. 454.

Since September 13, 2010, Dzurko has been treated at the Pain Centers of Chicago, LLC, by Dr. Mauricio Morales and others. The records from this practice indicate that her ankle condition started several years ago after a trauma and associated ankle surgery in 2003. R. 461. Her symptoms include pain that "radiates from her right ankle into her right knee and is sharp" and a "cold sensation in her foot." R. 461. Treatment notes describe her pain as a "sharp burning constant throb" that varies in intensity, is improved by medication and lying down, and is exacerbated by activity. R. 465. Records show that her coordination was intact and that MRI results showed areas of avascular necrosis. R. 466. According to treatment notes, cortisone injections have diminished Dzurko's pain. Dzurko's chart indicates that she was five feet three inches tall, weighed 183 pounds, smoked, had a scar on her right ankle, and had some atrophy of her right foot. R. 471. At some appointments she reported that her pain medications worked well without side effects and at others she reported that they did not help. R. 467, 469. Records show that her treatments have included lumbar sympathetic injections, cortisone injections, physical therapy, orthotics, and medication. R. 461. As of January 2011, her medication regimen included Mobic, Norco, Soma, Elavil, and Zonegran. Dr. Morales concluded that "[d]espite these medications, Kim suffers from chronic pain on a daily basis and is limited in prolonged ambulation or standing on her foot, " and that "[h]er activity level is limited" by her symptoms. R. 461. According to these records, her condition has "resulted in chronic right ankle pain with a neuropathic component and possible Complex Regional Pain Syndrome." R. 461, 470. The administrative record does not include any medical records from Dzurko's podiatrist, Dr. Paolucci, who referred her to the Pain Centers of Chicago. R. 261, 483-85.

On August 3, 2009, Dzurko saw Dr. Sarat Yalamanchili for a consultative examination for the State of Illinois Bureau of Disability Determination Services ("DDS"). R. 401. Dr. Yalamanchili's diagnostic impression was recorded as, "1. [r]ight foot pain, possibly related to history of avascular necrosis and surgery[;] 2. [l]ow back pain[;] 3. [r]estless leg syndrome." R. 402-03. The summary of that examination noted Dzurko's "history of avascular necrosis of the feet, right foot surgery, restless leg syndrome, and low back pain." R. 402. It also described Dzurko's symptomology as including "pain in both of the feet unable to walk more than 50 feet and unable to drive." R. 402. According to the summary, Dzurko had a "right side limping gait with no need for any cane during gait examination." R. 402.

Dr. Francis Vincent, another DDS consulting physician, completed a "Physical Residual Functional Capacity Assessment" of Dzurko's health. R. 404. Dr. Vincent never treated or examined Dzurko; he based his assessment on a review of her medical records as they were compiled in August 2009. R. 404, 411. Dr. Vincent concluded that Dzurko could stand or walk for a total of two hours in an eight-hour workday, sit with normal breaks for about six hours in an eight-hour workday, occasionally lift ten pounds, frequently lift less than ten pounds, and engage in only limited pushing or pulling with the lower extremities. R. 405. Dr. Vincent further concluded that Dzurko could occasionally climb ramps, stairs, ladders, ropes or scaffolds and that she had no other postural or other limitations. R. 406-08. Dr. Vincent indicated that he viewed Dzurko's statements to be "partially credible" and noted that she "[h]elps take care of pets, does painting, sewing." R. 409. Dr. Charles Wabner revised Dr. Vincent's assessment on February 27, 2010, to note that Dr. Golden indicated Dzurko was doing well on January 18, 2010, and that "[t]here is no worsening in condition from initial assessment." R. 430.

Dzurko also has a history of heart disease. In 1990, she had cardiomyopathy due to severe toxemia following her pregnancy. R. 444. Records indicate that the cardiomyopathy has been in remission since 2003. R. 444. Dzurko went to the Riverside Community Health Center on February 5, 2009, complaining of palpitations, panic attacks, stress, sweating, and hot flashes. R. 444. Treatment notes indicate that "Patient cries easily and is easily upset. Patient feels like she isn't herself. She doesn't feel like answering the phone. Patient is also having foot cramps in her right toes." R. 444. She ...

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