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Ponce v. Colvin

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

May 22, 2014

SHELLEY A PONCE, Plaintiff,
v.
CAROLYN W COLVIN, Acting Commissioner of Social Security, Defendant,

MEMORANDUM OPINION AND ORDER

ARLANDER KEYS, District Judge.

This case is before the Court on Plaintiff Shelley Ponce's motion for summary judgment. She seeks a remand or an outright reversal of the Commissioner's decision to deny her application for Disability Insurance Benefits and Supplemental Security Income before September 17, 2009. For the reasons set forth below, Ms. Ponce's motion is denied and the Commissioner's motion for summary judgment is granted.

BACKGROUND & PROCEDURAL HISTORY

On December 7, 2006, Plaintiff Shelly Ponce applied for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). (R. 107.) Ms. Ponce alleged that she became disabled as of August 1, 2000, due to a series of health issues including severe back pain, bladder problems, bursting appendix, high blood pressure, cholesterol, limited use of her hands, and pain and numbness on the right side of her body. (R. 148, 311.) Ms. Ponce's application was denied initially on July 27, 2007, and upon reconsideration on August 24, 2007. (R. 107.) Ms. Ponce requested a hearing before an Administrative Law Judge ("ALJ"), and the case was assigned to ALJ Arthur Cahn, who held the requested hearing on September 2, 2009. Id. The ALJ partially granted Ms. Ponce's disability request, holding that Ms. Ponce was disabled as of October 27, 2007, but not before. (R. 116.) Ms. Ponce disagreed with the onset date and requested the Appeals Council's review of the ALJ's decision. (R. 38.)

On December 10, 2010, the Appeals Council vacated the decision and remanded the case for further review. Id. On review, the Appeals Council directed the ALJ to: (1) further evaluate the claimant's subjective complaints and provide a rationale; (2) give further consideration to the claimant's maximum residual functional capacity and provide an appropriate rationale for it with specific record references; and (3) obtain evidence from a vocational expert about whether the claimant had any transferable skills from her past relevant work while determining whether the vocational expert's occupational evidence was in conflict with the Dictionary of Occupational Titles. Id. The case was then assigned to ALJ Patrick Nagle, and a second hearing took place on October 27, 2011. Id. On November 14, 2011, ALJ Nagle determined that Ms. Ponce was disabled as of September 17, 2009, but not prior. The significance of this finding is that Ms. Ponce was last insured for disability insurance benefits on September 30, 2005, though she qualifies for supplemental insurance benefits as of the later date. (R. 49-50.) Again, Ms. Ponce requested the Appeals Council to review the ALJ's decision, but it was denied on May 25, 2012. (R. 5, 32.)

ALJ HEARING

At the hearing before ALJ Nagle, Ms. Ponce appeared, and was represented by counsel. (R. 70.) Ms. Ponce testified that she was born on September 18, 1954, and lives with her two sons, daughter in law, two grandchildren and husband. (R. 81-82, 273-74.)

With regard to Ms. Ponce's work history, Ms. Ponce testified to the following: She worked in a warehouse as a line supervisor at Midwestco Enterprises for thirty years. (R. 82, 304.) She would measure, perform quality control inspections, and check transformers on the trucks. (R. 83). The work would vary between standing and sitting. Id. She would also lift between ten to seventy-five pounds on a regular basis, and if she "pulled a truck it could go up to about four hundred to five hundred pounds." Id. Ms. Ponce testified that she stopped working there because her body was breaking down. Id. She further stated that the pain started in her arms, and she felt splinters in her feet, which lead to her having surgery on her right foot. Id.

Ms. Ponce testified to the following: Beginning in 2008, she had a number of surgeries. (R. 75.) In February of 2008, she had a cervical back fusion. Id. Then in 2010, she had another surgery on her C6 and C7 vertebrae and a subsequent surgery in September of 2011 on her C3, C4 vertebrae all the way down to C1 to C2. (R. 76.)

She testified that, since 2000, she was progressively losing control of her hand, and if she held something, she would not be aware if she lost it. Id. She also testified that because of her legs, she would lose her balance, or she would feel like a thousand needles were going up her right side and that these symptoms progressed with time. Id. She would lose things often and could not control a toothbrush or comb her hair. Id. Due to the pressure in her leg, she was not able to pick herself up if she bent down to pick up anything. Id. Ms. Ponce testified that, during the eight years prior to her surgery, the physicians she sought treatment from continuously stated that she had perhaps pulled a muscle, but they could not pinpoint the exact problem. (R. 77.) She testified that the physicians decided to perform surgery because she fell multiple times, her feet would tingle, she experienced sharp pains oscillating on her right side, the back of her neck was starting to hurt immensely, and she was not able to get out of bed. Id. At the time she took pain medication, however, the physicians insisted that she not continue doing so, in order for them to pinpoint the cause of her symptoms. Id. Ms. Ponce also testified that she had carpal tunnel, but did not have surgery. Id. She testified that after her back surgery in 2010, her hands worsened and that, after the subsequent surgery in 2011, she was not able to move her right hand or raise her right arm. (R. 77-78, 88.) She testified that approximately two years lapsed between her first and second surgery, but the pain did not subside. (R. 78-79.) She described feeling as though a thousand needles were punching her in the arm all the way down to her feet and in one instance, prior to her second surgery, her arm froze in place, for which she sought immediate treatment at an emergency facility. Id.

Ms. Ponce then testified to the tasks she was able to perform in 2000, that she was no longer able to perform in 2005. (R. 79.) During this time, she developed difficulty, and eventually an inability, to fold a towel or brush her hair. (R. 79, 84.) She would mistake planting her leg down because she had no control of it. Id. Her symptoms worsened from 2005-2010. (R. 79-80.) She testified that the pain got sharper, and it started to move to the left side, and her left palm and the outside of her fingers would get cold and numb. (R. 80.) These symptoms began after her second surgery. Id. She testified that, before her second surgery, she could walk a distance of three to four houses before feeling pain, but after the surgery the pain worsened and she could only go across from the living room to the back. Id. With regard to daily life, she testified that she does not cook and has not done so since 2000. (R. 80-81.) She does not do any housework. Id. In October of 2011, she only left the house once, and that was to attend the ALJ hearing, however, in 2006 or 2007, she would leave the house twice a week to get fresh air. (R. 81.) She would take rides with her husband to pick up groceries, but would not get out of the car because of the pain in her legs. Id. Furthermore, she did not attend any of her son's or grandchildren's school activities. Id.

Ms. Ponce testified that in 2002, she started seeing Dr. Cohen because she had pain "from her buttocks to the back of her shoulder." (R. 83.) She experienced shooting pain in her right arm, and it intensified as time went on. (R. 84.) In September of 2005, and prior, she experienced sharp pain in her leg; her leg would not settle down, it continuously flinched. Id. During this time, she had difficulty pushing buttons. Id. She experienced difficulty tying her shoes, so her family purchased her slip-on shoes. Id. Prior to 2005, she used a walker because her right leg would fold up without notice, causing her to fall to her knees. (R. 85.) Her right leg felt weak, and she was unable to tell if it was facing forward or backwards, often times resulting in her falling. Id.

She testified that she stopped driving in 2000, because of leg cramps and her inability to get in and out of the car due to her legs falling asleep. (R. 85-86.) When she climbed stairs, she had pain in her buttocks, and if she sat too long she felt pressure around her neck. (R. 86.) During this time, she would get aggravated, feel depressed, and start crying. Id. She would take aspirin and stay at home five or six hours. Id. She was not able to kneel down because she was not able to get back up. Id. In 2004, she was unable to lift much with her right hand because it would shake; she was not able to pour a cup of coffee or a gallon of milk. (R. 87.) She experienced difficulty eating because the oscillation was tiring and it caused her arm to tighten. Id. She testified that she was also unable to cut meat or use a fork with her right hand, and that it was easier to use a spoon because it would hurt her arm to poke. (R. 88.) She also testified that her fingers would swell periodically. Id. She was taking four or five medications for pain, such as Lipitor, and some muscle relaxants. Id. She had formerly taken Prozac for depression, but had switched to Wellbutrin. Id.

VOCATIONAL EXPERT TESTIMONY

The ALJ also heard testimony from Terry Seaver, a Vocational Expert, who had reviewed Ms. Ponce's prior work and vocational background. (R. 90.) Ms. Seaver was present during Ms. Ponce's testimony. Id. She testified that Ms. Ponce's prior employment consisted of working as a quality control supervisor, a job with medium physical demand. Id. She testified that there were no transferrable skills from that job to a light range position. Id. Ms. Seaver determined that a hypothetical individual who is closely approaching advanced age with a limited 11th grade education, who shares claimant's past work experience and is limited to light work, and in addition is limited to only occasional fingering or feeling with the right hand, would only be able to perform occupations which required "less than frequent or far acuity in the local and national economy." (R. 91.) Ms. Seaver determined that the hypothetical person could perform the following jobs: information clerk, DOT 237.367-018, which had four thousand eight hundred jobs in the local economy; usher, DOT 344.677-014, which had one thousand jobs in the local economy; hostess, DOT 352.667-010, which had seven thousand two hundred jobs in the local economy. Id.

However, Ms. Seaver concluded that sedentary work would be precluded, even for a hypothetical individual that was younger in age and not approaching advanced age, because sedentary work would require at least more than occasional fingering with the bilateral extremities. (R. 92.) Ms. Seaver determined that a hypothetical person who could only occasionally rotate, flex, or extend their neck, would be precluded from work. (R. 93.)

MEDICAL RECORD

In addition to the testimony of Ms. Ponce and the Vocational Expert, the record before the ALJ includes medical records. However, as pointed out during the ALJ hearing, the record does not include the medical records of Ms. Ponce that document her symptoms or ailments between August 2000 to June 2002, because she did not submit them to the Social Security Administration or the ALJ. (R. 75.)

PRE-DATE LAST INSURED DATE - Prior to September 30, 2005

On June 10, 2002, Ms. Ponce went to Dr. James Cohen due to pain into her right lower leg, and because her back would occasionally feel like it was going to give out. (R. 362.) Dr. Cohen noted that Ms. Ponce has a history of low back pain, as she had pain down her right posterior thigh for twenty years. Id. On examination, Dr. Cohen noted that Ms. Ponce had good lumbar range of motion without significant reproduction of her symptoms, and good range of motion of her hips and knees. Id. He also noted that Ms. Ponce's knee and ankle reflexes were brisk, EHL testing was normal, sensory exam was normal, pulses were intact and there was no area of tenderness in her lower legs. Id. Dr. Cohen had the impression that Ms. Ponce had some sciatic-type symptoms, however, he did not obtain x-rays. Id. He prescribed Ms. Ponce a Medrol Dosepak and ibuprofen and advised her to return if her symptoms did not improve. Id. On July 15, 2002, Ms. Ponce went back to Dr. Cohen and complained that the prescribed Medrol Dosepak and ibuprofen did not ease her pain. (R. 361.) Dr. Cohen obtained an x-ray of her LS spine, which was normal except for facet arthritis. Id. Dr. Cohen then ordered an MRI. Id.

On August 3, 2002, Ms. Ponce had the MRI done in the neurology clinic at ACHN/Fantus Health Center by neurologist Dr. Richard T. Brannegan. (R. 386.) Dr. Brannegan noted that the exam was unrevealing, that Ms. Ponce tended to give away at strength testing and that there was no atrophy. (R. 387.) The physician further noted that he was unsure if there was a neurologic disease present, and noted that he would get a CT scan of the brain. (R. 386-387.)

On October 23, 2002, Ms. Ponce went to the Chicago Department of Public Health for a checkup. (R. 368.) Internal medicine physician, Dr. E. Potash, treated her. (R. 367.) Dr. Potash noted that Ms. Ponce had numbness and tingling on her right side for four to five years, and she experienced right-sided weakness. Id. Dr. Potash prescribed Ms. Ponce Naprosyn and scheduled a follow-up appointment for January 15, 2003. Id. On January 15, 2003, Ms. Ponce returned to Dr. Potash. (R. 365.) She again was experiencing numbness on the right side of her body. Id. Dr. Potash measured her calf muscles, and the left calf measured at fourteen and three quarter inches and her right measured at fourteen and one quarter inches, a difference of a half inch. Id. Dr. Potash also noted that Ms. Ponce limped when walking, and she told him that "she's always done this." Id. Dr. Potash noted possible multiple sclerosis or neurological disease and referred Ms. Ponce to a neurologist. Id. On July 18, 2003, Ms. Ponce was again seen at the Chicago Department of Public Health. (R. 369.) She complained ...


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