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Grippo v. Colvin

United States District Court, N.D. Illinois, Eastern Division

February 18, 2014

SUSAN G. GRIPPO, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, [1] Defendant.


YOUNG B. KIM, Magistrate Judge.

Susan Grippo seeks disability insurance benefits ("DIB"), see 42 U.S.C. §§ 416(i), 423, based on her claim that she is unable to work because of arthritis of the lumbar spine and right knee, obesity, and diabetes. After her application was denied in a final decision by the Commissioner of the Social Security Administration, Grippo filed this suit seeking judicial review. See id. § 405(g). Before the court is Grippo's motion for summary judgment seeking reversal of the Commissioner's decision. For the following reasons, the motion is granted to the extent that the case is remanded for further proceedings:

Procedural History

Grippo applied for DIB on July 21, 2009, claiming that she became unable to work on August 21, 2008. (Administrative Record ("A.R.") 165.) After her claims were denied initially and upon reconsideration, (id. at 67-73), Grippo sought and was granted a hearing before an administrative law judge ("ALJ"), (id. at 109). The ALJ held a hearing on December 7, 2010, at which Grippo and a vocational expert provided testimony. (Id. at 36-66.) On January 12, 2011, the ALJ issued a decision finding that Grippo is not disabled within the meaning of the Social Security Act and denying her DIB claim. (Id. at 24-31.) When the Appeals Council denied Grippo's request for review, (id. at 1), the ALJ's denial of benefits became the final decision of the Commissioner, see Schomas v. Astrue, 732 F.3d 702, 707 (7th Cir. 2013). On July 31, 2012, Grippo filed the current suit seeking judicial review of the Commissioner's decision. See 42 U.S.C. § 405(g). The parties have consented to the jurisdiction of this court. See 28 U.S.C. § 636(c).


Grippo, who currently is 58 years old, suffers from a number of ailments including arthritis of the lumbar spine and right knee, diabetes, plantar fasciitis, sleep apnea, obesity, and hypertension. She claims that those conditions became disabling in 2008, when she stopped working as a warehouse manager at a service station supplier. (A.R. 176.) Since she stopped working Grippo has continued to suffer from osteoarthritis and hypertension linked to her obesity and has experienced depression in the wake of her husband's death in October 2008. At her hearing before an ALJ, Grippo presented both documentary and testimonial evidence in support of her claim.

A. Medical Evidence

The bulk of the medical evidence Grippo submitted in support of her claim consists of treatment records from her visits with several doctors under the supervision of attending physician Dr. Robert Passovoy. Those records begin in January 2008 when she reported experiencing severe headaches for two months. (A.R. 299.) The treatment provider noted that she had "2x pedal edema" and osteoarthritis with knee pain. (Id.) The next month she returned to Dr. Passovoy's office reporting foot pain and intermittent pain bending over. (Id. at 290.) Dr. Passovoy noted that she had a large heel spur in her right foot which another physician, Dr. Camilleri, had twice treated with injections. (Id.) Dr. Passovoy diagnosed plantar fasciitis with a heel spur, restless legs syndrome, and rectus abdominus soreness, likely attributable to her obesity. (Id.)

Grippo visited Dr. Passovoy's office again in October 2008, the week after her husband passed away. (Id. at 289.) He noted that she was experiencing what he described as a "grief reaction/depression" and again noted "2x pedal edema." (Id.) Dr. Passovoy gave Grippo a prescription for the arthritis medication Celebrex. (Id.) After this visit Grippo returned to Dr. Passovoy in January and April 2009, complaining of headaches and dizziness. (Id. at 239, 236.) Grippo was concerned because she had an incident where she "zoned out" for one to two minutes and had vertigo. (Id. at 236, 238.) Dr. Passovoy attributed the symptoms to a respiratory viral infection. (Id. at 236, 239.) At the January 2009 visit Dr. Passovoy noted that Grippo had controlled hypertension, was experiencing "mild to moderate clinical depression, " and had degenerative arthritis in her knees and back. (Id. at 239.) He wrote that Grippo is "largely disabled by constant pain and stiffness and is requesting advice with regard to medical disability." (Id.)

Grippo returned to Dr. Passovoy in June 2009 for a diabetic check-up. Dr. Passovoy noted that Grippo's extremities were "abnormal" and that she had no change in her edema. (Id. at 235.) He wrote that she had glucose intolerance and "persistent" obesity. (Id.) The following month Grippo again reported to Dr. Passovoy's office complaining of another respiratory infection. (Id. at 234.) Grippo is a heavy smoker and the examining doctor discussed with her the importance of quitting. (Id.) The doctor noted in the records that Grippo continued to have pedal edema in her extremities and glucose intolerance. (Id. at 278.)

In October 2009 Dr. Passovoy provided a medical opinion letter in support of Grippo's DIB application describing her as a "medically complex" patient with problems including "hyperthyroid, chronic obstructive lung disease secondary to extensive tobacco abuse, gastroesophageal reflux disease, hypertension, persistent vertigo, restless leg syndrome, and variant migraine" as well as glucose intolerance. (Id. at 252.) Dr. Passovoy wrote that Grippo's "disabling condition is severe degenerative joint disease involving hips, knees, and back, " which he said impairs her ability to move. (Id.) He also noted that Grippo's "morbid obesity"-at the time her body mass index was 43-contributes to her condition and her continuous "tobacco abuse with two-pack-per-day smoking" exacerbates "her chronic lung disease." (Id.) He opined that Grippo's joint disease and her chronic lung disease impair her ability to move and "feed into her inability to walk any distance at all without either fatigue or pain." (Id.) Dr. Passovoy wrote that he would classify her as a "totally disabled" patient and opined that "the chances of her being rehabilitatable from the standpoint of her arthritis and obesity, are vanishingly small." (Id.)

About two weeks after Dr. Passovoy submitted his letter, consulting physician Dr. Mahesh Shah examined Grippo for the purpose of providing an internal medicine consultative examination for the state disability agency. (Id. at 255-59.) Grippo reported to Dr. Shah that she had joint problems and pain in her lower back, knees, and ankles and she had been taking Relafen for 10 years to control her pain. (Id. at 255.) She reported that she was unable to stand or walk for a long time, to bend forward, or to pick up anything heavy. (Id.) Grippo also reported that she had been diagnosed with diabetes for four years and that she becomes dizzy with sudden movements. (Id.) Grippo had been smoking for 39 years and at the time of the examination she was smoking two packs of cigarettes a day. (Id. at 256.)

Under the "general appearance" section of his report, Dr. Shah noted that Grippo walked into the office with a cane but could walk slowly without it and displayed no acute distress. (Id.) Grippo had difficulties getting on and off the examining table but had no problem going from sitting to the supine position and getting up from the supine position. (Id.) Examination of the back revealed marked tenderness in the lumbar region, but there were no deformities and no paraspinal muscle spasms. (Id. at 257.) Dr. Shah noted, however, that Grippo "could not stoop." (Id.) He observed that she had mild, vague tenderness over the shoulders, elbows, knees, and ankles, but noted that Grippo had full range of motion in the ankles, shoulders, and wrists, and the rest of the joints were normal. (Id.) In Dr. Shah's clinical impression, Grippo suffers from "severe arthritis, particularly involving the lumbar spine and right knee, " and he wrote that Grippo's weight could "make the arthritis worse." (Id. at 258.) Two x-rays taken in connection with the consultative exam revealed that Grippo had degenerative disc disease at the L5-S1 level in her lumbar spine and a mild degree of degenerative disease in her right knee. (Id. at 259.)

Two weeks after Dr. Shah conducted his examination, Dr. Vidya Madala, a state agency review physician, provided a physical residual functional capacity ("RFC") assessment in November 2009. (Id. at 260-267.) Dr. Madala opined that Grippo could stand and walk at least two hours and sit for about six hours in an eight-hour workday. (Id.) In regard to postural limitations, Dr. Madala noted that she can "occasionally" stoop or climb ramps and stairs. (Id. at 262.) With respect to environmental limitations, Dr. Madala indicated that Grippo should avoid concentrated exposure to humidity, fumes, odors, dusts, gases, and poor ventilation. (Id. at 264.) Dr. Madala reviewed Dr. Passovoy's October 2009 letter supporting Grippo's claim, but wrote that his opinion that "Grippo is unable to walk any distance at all due to pain or fatigue from her arthritis" is not supported by Grippo's "degree of functional loss or severity of conditions." (Id. at 266.) At the same time, Dr. Madala wrote that Grippo's allegations that she has difficulty lifting, squatting, bending, standing, sitting, kneeling, climbing stairs, and walking more than 100 feet are "generally credible and supported by MDIs." (Id. at 267.)

About a month after Dr. Madala completed her RFC assessment, Grippo returned to Dr. Passovoy's office reporting depression. (Id. at 274.) She said that she is "[c]onstantly sad and has no resources." (Id.) The following month she was again seen by Dr. Passovoy's office and the examining doctor noted that her disability claim had been denied "despite the fact that she has fairly significant limitations due to spinal stenosis and degenerative arthritis." (Id. at 269.) The doctor noted that she had symptoms related to gastroesophageal reflux disease, degenerative arthritis, and obstructive sleep apnea that she treated with a CPAP machine. (Id.)

In January 2010 Dr. Passovoy completed an arthritis RFC questionnaire in support of Grippo's disability claim. (Id. at 307-09.) He reported diagnoses of degenerative joint disease and spinal stenosis with a fair to good prognosis. (Id. at 307.) He noted that Grippo's pain is located primarily in her low back, knee, and ankle, and that she experienced stiff shoulders. (Id.) Dr. Passovoy noted that her depression and obstructive sleep apnea would affect her pain and her symptoms were severe enough to "frequently" interfere with the attention and concentration needed to perform simple work tasks. (Id. at 308.) Functionally, he noted that she could walk two city blocks without pain, sit at one time for 20 minutes, and stand at one time for 15 minutes. (Id.) He opined that she could sit, stand, or walk for less than two hours in an eight-hour workday. (Id.) He noted that she needs a job that permits shifting positions at will but that she does not need to elevate her legs or use assistive devices. (Id. at 308-09.) He also noted that her impairments would produce good days and bad days and that she is likely to be absent from work about four days per month. (Id.)

The record shows that Grippo saw Dr. Passovoy two more times in 2010, in March and in September. In the six months between those visits, Grippo ran out of medications. She told Dr. Passovoy's office that she had not refilled her prescriptions because she could not afford to buy her medications. (Id. at 320.) As a result, at the September 2010 visit she presented as "edematous, itching and with multiple skin lesions on her legs from nocturnal scratching." (Id.) She had "pretibial edema with multiple excoriated papular lesions" and elevated hypertension "secondary to lack of medications." (Id.) The examining doctor wrote that the office would try to supplement her medications with samples and help her with medical assistance forms to try to help her obtain "critical medications." (Id. at 320-21.)

The medical record also shows that between May 2008 and August 2010 Grippo saw Mark Camilleri, D.P.M., at the Ridgeland Foot and Ankle Center, for help with pain in her feet. (Id. at 333-39.) Those records show that Dr. Camilleri repeatedly performed toenail debridements and that he often indicated positive findings for edema. (Id.) In November 2010 Dr. Camilleri completed a physical RFC questionnaire in support of Grippo's claim. (Id. at 340.) Dr. Camilleri rated Grippo's prognosis as "poor, " noted her edema and diabetic neuropathy as objective findings, and opined that she requires routine diabetic foot care. (Id.) His opinions with respect to Grippo's functional limitations largely echoed Dr. Passovoy's, except that he noted that Grippo can sit at one time for about ...

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