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Dent v. Colvin

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

September 5, 2014

DIANE DENT, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

SHEILA FINNEGAN, Magistrate Judge.

Plaintiff Diane Dent seeks to overturn the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. 42 U.S.C. §§ 423(d), 1381a. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and filed cross-motions for summary judgment. After careful review of the record, the Court now grants Plaintiff's motion, denies the Commissioner's motion, and remands this case for further proceedings.

PROCEDURAL HISTORY

Plaintiff filed her initial application for DIB on November 30, 2009, alleging that she became disabled on July 25, 2009, due to rheumatoid arthritis, high blood pressure, and vitamin D deficiency. (R. 167-68; 192). The Social Security Administration ("SSA") denied Plaintiff's claims initially on March 17, 2010, and upon reconsideration on August 18, 2010. (R. 105). After Plaintiff's timely request, Administrative Law Judge ("ALJ") Marlene R. Abrams held an August 2, 2011 hearing in this matter. (R. 19; 36). Plaintiff, who appeared with counsel, testified at the hearing, as did Randall L. Harding, a vocational expert ("VE"), and Dr. Sheldon Slodki, a medical expert ("ME"). (R. 36-103).

Several months after the hearing, on March 29, 2012, the ALJ found Plaintiff is not disabled because she is capable of performing light work, including her past relevant work as a medical records clerk and as an inventory control clerk. (R. 19-31). On April 24, 2012, Plaintiff requested review of the ALJ's decision, and on April 19, 2013, the appeal was denied. (R. 6-10; 15). Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner.

In support of her request for remand, Plaintiff argues that the ALJ erred: (1) by finding that her impairments or combination of impairments do not meet or medically equal Listing 14.09 for inflammatory arthritis; (2) in analyzing the medical opinions of her treating internist, Dr. Irene Aluen, [1] DDS consulting physician Dr. George Andrews, and the ME, Dr. Sheldon Slodki; (3) by improperly determining her residual functional capacity ("RFC"); and (4) in making a flawed credibility assessment.

FACTUAL BACKGROUND

Plaintiff was born on February 18, 1955, and was 56 years old at the time of the hearing in this matter. (R. 43-44). Plaintiff lives in an apartment with her daughter, son-in-law, and seventeen-year-old grandson. (R. 65-66). She earned a GED and also received certificates in medical records and word processing at a training school. (R. 44-45). Plaintiff worked as a word processing operator for nine years, as a medical records clerk for about three years, and then as an inventory clerk dealing with airplane parts beginning in September 2006. (R 46-53; 193). She was laid off from the inventory clerk job on April 17, 2009, due to a downturn in the economy. (R 46-53; 193).

Shortly after being laid off, Plaintiff began receiving unemployment benefits, which lasted until mid-2010. (R. 21; 46-47). While she received those benefits, Plaintiff applied for jobs in customer service and attended some interviews for inventory clerk jobs, but did not obtain employment. (R. 46-47). In late July 2009, Plaintiff began experiencing pain, soreness, stiffness, and swelling in her hands and ankles, and was eventually diagnosed with arthritis (R. 53-54; 86).

A. Medical History

1. 2009

The first available medical records are from Plaintiff's August 20, 2009 emergency room visit at Loyola Hospital, a couple of weeks after the date Plaintiff allegedly became disabled. (R. 264-72). Plaintiff complained of severe pain in her ankles and hands for a couple of days, and reported experiencing similar pain a couple of weeks prior. (R. 266). She also indicated that she had needed assistance walking because of the pain. (R. 267.). On examination, Plaintiff displayed erythema (redness of the skin), mild warmth and swelling in the left ankle. ( Id. ). The attending physician ordered a metabolic panel and other labs, but found nothing concerning. (R. 267-271). Plaintiff was injected with a pain killer to relieve her immediate pain, and was discharged from the emergency room the next day with orders to take Naprosyn for pain. (R. 266; 272). At discharge, Plaintiff denied pain or discomfort, and ambulated with a normal gait. (R. 266).

A week later, on August 27, 2009, Plaintiff visited another emergency room at Stroger Hospital. (R. 430-33). She told the attending physician, Dr. David Levine, that the Naprosyn she had been given helped her pain, but she still experienced wrist and ankle pain that were worse with activity and in the morning. ( Id. ). Dr. Levine found Plaintiff had a full range of motion and normal strength in both her ankles, although there was some redness in her left ankle and tenderness in the right. (R. 430). Dr. Levine also noted decreased strength and range of motion in the left wrist, and ordered left wrist and left ankle x-rays. (R. 430, 433). The x-rays are not in the record, but Dr. Levine's notes described the wrist x-ray as "unremarkable, " and his note regarding the ankle x-ray is illegible. (R. 433). Dr. Levine diagnosed Plaintiff with polyarthritis, recommended she be discharged, prescribed ibuprofen for pain, and referred her for a follow-up at the Stronger Musculoskeletal Clinic. (R. 431, 433).

A few weeks later, on September 10, 2009, Plaintiff returned to the emergency room at Loyola Hospital, complaining of neck and cervical spine pain. (R. 253-63). She was asked about her arthritis, and denied any hand pain. ( Id. ). She also had no redness, swelling or deformities, and had a full range of motion and strength in all extremities. ( Id. ). Plaintiff had a CT scan of the head and neck which showed a small amount of mild inflammation in the back of the neck. (R. 255; 261). Plaintiff was given some morphine for pain, and refused any more diagnostic procedures or treatments, stating that her pain was resolved with the morphine. ( Id. ). She told the emergency room attending physician that she "felt much better, " and she thought her pain was probably caused by having "slept wrong." ( Id. ). Plaintiff was then discharged, and was encouraged to establish a primary care physician rather than continue being treated at emergency rooms. ( Id. ).

About a month later, on October 13, 2009, Plaintiff began seeing Dr. Aluen at Logan Square Health Center, to establish primary care. (R. 331-35). Plaintiff described her ankle and wrist pain history to Dr. Aluen, and complained at that time of pain and stiffness in the hands and ankles that was worse in the mornings and lasted all day. (R. 331). Plaintiff stated her pain was then at a 2 on a scale of 1 to 10, 10 being the worst. (R 335). She was also wearing a wrist brace that she said relieved her pain. ( Id. ). Plaintiff also complained of fatigue. (R. 398).

Dr. Aluen found no redness in any of Plaintiff's joints, but found synovitis (inflammation of the synovial membrane)[2]in her distal interphalangeal joints, proximal interphalangeal joints, [3] wrists, and ankles. ( Id. ). The doctor also noted that Plaintiff had significantly elevated blood pressure. (R. 333). Dr. Aluen also wrote that Plaintiff's wrist and ankle x-rays from August 2009 were "unremarkable." ( Id. ). Based on her findings, the doctor diagnosed Plaintiff with polyarthralgia (pain in several joints) and indicated a preliminary diagnosis of rheumatoid arthritis. ( Id. ). She prescribed Prednisone for Plaintiff's inflammation, Tylenol #3 for pain, and a blood-pressure medication. ( Id. ). Dr. Aluen also referred Plaintiff to Stroger for various lab work, and a follow-up that the doctor later rescheduled. ( Id. ).

Dr. Aluen reviewed the results of Plaintiff's lab work on October 27, 2009, and noted they showed Plaintiff had mild pancytopenia, and an elevated rheumatoid factor.[4] (R. 398-404). Dr. Aluen then called Dr. John Case, a rheumatologist at Stroger, and discussed Plaintiff's conditions with him. ( Id. ). The doctors determined Plaintiff's joint pain suggested a rheumatologic condition, but her pancytopenia and fatigue could also be due to a hematological, or blood-related, malignancy. ( Id. ). The doctors scheduled Plaintiff for additional lab work and follow-ups. ( Id. ).

After the lab work was completed, Plaintiff met with Dr. Aluen on November 13, 2009. (R. 328; 395-97). Plaintiff told Dr. Aluen that the Prednisone did not help her pain, so she stopped taking it. (R. 328). Plaintiff also said that she could not afford to purchase her blood pressure medication. ( Id. ). Upon evaluation, Plaintiff presented the same synovitis issues as before, and now had swelling in the sternoclavicular joint.[5] ( Id. ). Dr. Aluen also noted that Plaintiff's autoimmune panel was negative and her other lab results were normal, except she had a rheumatoid factor of 61. ( Id. ). Dr. Aluen recommended additional labs to further investigate Plaintiff's pancytopenia. ( Id. ). Those lab results showed Plaintiff had iron deficiency anemia. (R. 389-93). Dr. Aluen then recommended Plaintiff have additional testing at the emergency room so that her physicians could determine whether the anemia was related to her arthritis. ( Id. ). Plaintiff declined to go to the emergency room, and also did not show up for an initial consultation scheduled with Dr. Case around this time, for reasons not explained by the record. (R. 387-88; 425).

Plaintiff did show up for her scheduled appointment at the Musculoskeletal Clinic at Stroger, on November 25, 2009. (R. 429). She met with Dr. Steven A. Clar, a physical medicine specialist. (R. 428). Plaintiff explained her medical history, and Dr. Clar reviewed Plaintiff's August 2009 x-rays. ( Id. ). The doctor found Plaintiff's left ankle x-ray showed mild soft tissue swelling, but his physical examination revealed no swelling in her joints. ( Id. ). He also observed Plaintiff was using a splint for her wrist, and told her to avoid using it. ( Id. ). Dr. Clar diagnosed Plaintiff with polyarticular arthritis, and found she "likely" had rheumatoid arthritis since she met 3 of the 7 criteria, or 4 of 7 when taking into account her history of swelling. ( Id ). The doctor referred Plaintiff for x-rays of both hands, gave her a handout on paraffin wax treatments, recommended ibuprofen for pain, and asked her to return in two months. ( Id. ).

Plaintiff had the hand x-rays done at Stroger after meeting with Dr. Clar. (R. 288-89; 384-86). The x-rays showed mild joint space narrowing in the distal interphalangeal joints bilaterally, with minimal productive changes and normal carpal alignment as well as mid-carpal joints.[6] (R. 288). The radiologist's impression was osteoarthritis, with no evidence of inflammatory arthropathy. ( Id. ). It does not appear, however, that Plaintiff ever returned to the Musculoskeletal Clinic, or that Dr. Clar ever reviewed these x-rays, and the record reveals no explanation for the reasons why. A few days after her visit to the Musculoskeletal Clinic, on November 30, 2009, Plaintiff applied for DIB with the SSA. (R. 167-68).

2. 2010

Plaintiff's next treatment records are from January 27, 2010, when she first met in person with Dr. Case. (R. 425-27). Plaintiff told Dr. Case that she had pain even when taking Tylenol #3, but that paraffin wax treatments with occasional ibuprofen controlled her pain. (R. 426-27). Plaintiff further complained that her "main issue" was the limitations in her daily functioning caused by the pain in her hands. (R. 427). Dr. Case examined Plaintiff and found she had swelling and tenderness in her finger joints, wrists and ankles; a decreased range of motion in the fingers, wrists and ankles, grip strength of 4 out of 5; and she was unable to fully flex her interphalangeal joints. ( Id. ). The doctor also reviewed Plaintiff's medical records, including her hand x-rays from August and November 2009. (R. 426). Dr. Case found that Plaintiff's hand x-rays showed she likely had osteoarthritis, but her left ankle x-ray was normal. ( Id. ). Dr. Case's initial impression was "presumed rheumatoid arthritis, " as well as pancytopenia and iron deficiency. (R. 426-27). The doctor recommended Plaintiff continue the paraffin wax treatments, try Prednisone again and begin taking Plaquanil for her pain and swelling. (R. 427). Dr. Case also recommended Plaintiff have her labs done, and that she return in March. (R. 378-80; 427).

On February 2, 2010, a few days after meeting with Dr. Case, Plaintiff had a follow-up with Dr. Aluen. (R. 325-27). Plaintiff said her joint pain was somewhat improved, and Dr. Aluen found she had tenderness in her hand and ankle joints, but no longer had effusion.[7] ( Id. ). Dr. Aluen also referred Plaintiff for a CT scan related to kidney issues, but Plaintiff's sister accidently cancelled the appointment. (R. 367; 376-77).

A few days later, on February 4, 2010, Plaintiff developed a skin infection in her right elbow and arm, for which she received treatment at Saints Mary and Elizabeth Medical Center. (R. 292-309). On February 9, 2010, Plaintiff followed-up with Dr. Aluen on the skin infection, and that doctor noted that Plaintiff no longer had any visible redness and swelling in her right arm, and the infection was "resolving." (R. 319). Plaintiff told the doctor she had been prescribed antibiotics, but she could not afford them. ( Id. ). Dr. Aluen encouraged Plaintiff to apply for Medicaid, as she could "not imagine [Plaintiff] would not qualify for" the benefits because "her symptoms are severe and disabling." ( Id. )

Shortly thereafter, on February 16, 2010, Dr. Aluen filled out an "Arthritis Residual Functional Capacity Questionnaire" in support of Plaintiff's DIB claim. (R. 442-444). In the form, Dr. Aluen explained that she had seen Plaintiff five times since October 2009 as her primary care provider. ( Id. ). The doctor wrote that Plaintiff had been diagnosed with inflammatory arthritis, anemia, high blood pressure, and potentially rheumatoid arthritis, for which she was seeing a rheumatologist. ( Id. ). Under prognosis, Dr. Aluen wrote that it was unclear at this point whether Plaintiff actually had rheumatoid arthritis or whether the condition would respond to drugs. ( Id. ). Dr. Aluen explained that Plaintiff's symptoms included generalized joint pain, a reduced range of motion at "all limb points, " and tenderness. (R. 442).

In regards to Plaintiff's capabilities, Dr. Aluen wrote that Plaintiff could walk two city blocks slowly without rest or pain, and could sit for at least six hours in an eight-hour work day, including for more than two hours at a time before needing a break. (R. 443). On the other hand, the doctor wrote that Plaintiff could only stand for about 15 minutes at a time and for less than two hours total in a work day. ( Id. ). Dr. Aluen also opined that Plaintiff required a job in which she could sit or stand at will because "[i]f she gets tired from standing, she must be allowed to sit down." Id. Dr. Aluen also wrote that Plaintiff could only occasionally lift up to ten pounds, and has significant limitations in doing repetitive reaching, handling or fingering because of joint pain limiting her movements. (R. 444). The doctor also expected Plaintiff to be absent from work about two days per month "in a good month, " and wrote that "her illness may flare and require more frequent absence." ( Id. ).

A couple of weeks later, on March 2, 2010, Plaintiff had a follow-up with Dr. Case. (R. 424). Plaintiff reported that she was taking her medications, and still had stiffness and pain from the hands that was "shooting" up her arms, but her pain had improved considerably (going from a 10 out of 10, to a 4 out of 10) and she was feeling "much better." ( Id. ). Dr. Case also noted Plaintiff had decreased finger stiffness. ( Id. ). He recommended Plaintiff return in May, and also visit the Stroger Hematologic Clinic due to signs of leukopenia, or a low white blood cell count, in her recent lab work results. ( Id. ).

Shortly thereafter, on March 15, 2010, Dr. George Andrews completed a physical RFC assessment for DDS related to Plaintiff's DIB claim. (R. 310-317). Dr. Andrews found Plaintiff could occasionally lift up to 20 pounds, frequently lift up to 10 pounds, and stand, walk or sit for about 6 hours in an 8 hour work day. ( Id. ). Due to evidence of minor swelling in her lower extremities, Dr. Andrews limited Plaintiff to occasionally climbing ladders, ropes or scaffolds, and occasional kneeling and crawling. ( Id. ). Dr. Andrews found no evidence to support any other limitations. ( Id. ). The doctor specifically noted that Plaintiff's November 2009 x-rays of the hands showed only mild joint space narrowing and no evidence of inflammatory arthropathy, and that her September 2009 examination at the Loyola Hospital emergency room showed she had normal strength in all extremities and a full range of motion in all joints. (R. 317). Shortly after Dr. Andrews' completed his report, on March 17, 2010, Plaintiff's DIB claim was denied by the SSA. (R. 105).

On Dr. Case's referral, Plaintiff saw Dr. Rubenstein, a hematologist at the Stroger Hematologic Clinic, on April 21, 2010. (R. 420). Plaintiff's examination was normal, but Dr. Rubenstein was concerned that Plaintiff's lab work showed her leukopenia had worsened while she was taking medications for her rheumatoid arthritis. ( Id. ). The hematologist suggested that Plaintiff's physicians consider alternative treatments for her arthritis. ( Id. ). He scheduled Plaintiff for a follow-up in May, but she missed it. ( Id. ).

Plaintiff met with Dr. Case on May 5, 2010, complaining of worsening pain and a decreased range of motion in the hands and wrists, as well as morning stiffness. (R. 437.). Plaintiff also reported compliance with her medications. ( Id. ). Dr. Case's examination showed Plaintiff had a limited range of motion in her fingers and was unable to make a fist; her left wrist was tender to palpation; she had pain with active and passive motion in the right wrist; and she had decreased muscle strength in the wrists. ( Id. ). On the other hand, her elbow, shoulder, knees and ankles were normal, and she had no swelling or erythema (redness) in the fingers or wrists. ( Id. ). In response to Dr. Rubenstein's theory that Plaintiff's medications were affecting Plaintiff's anemia, Dr. Case had her discontinue taking Plaquenil, prescribed Methotrexate and folic acid, and lowered her dosage of Prednisone. ( Id. ).

On June 2, 2010, Plaintiff followed-up with Dr. Case. (R. 439). She stated that she had stopped taking the Methotrexate and folic acid after one week because it upset her gastrointestinal tract. ( Id. ). She also continued to complain of finger stiffness and wrist pain and stiffness. ( Id. ). Dr. Case noted Plaintiff had mild tenderness to palpation in the wrists and hands, but no swelling. ( Id. ). Dr. Case adjusted Plaintiff's medications and asked her to return for a follow-up in a month. ( ld. ). Plaintiff then returned on July 7, 2010, complaining of continued pain and stiffness that was somewhat relieved with exercises and aspirin. (R. 463). Upon examination, Plaintiff's wrists showed pain with range of motion testing, but no swelling or pain on palpation. ( Id. ). Plaintiff's hands also showed no swelling or deformities and she had normal strength. ( Id. ). Dr. Case wrote that Plaintiff's polyarthritis was atypical, and still thought it was "possibly" rheumatoid arthritis. ( Id. ). The doctor also considered, but "doubt[ed], " that Plaintiff had Felty's syndrome, but suggested she return to the Hematologic Clinic for further analysis.[8] ( Id. ).

On Dr. Case's recommendation, Plaintiff went for her overdue follow-up at the Hematologic Clinic on July 2, 2010. (R. 462). She met with a new doctor, Dr. Telfer, and complained of stress, the inability to "move well, " and stated that she hoped to return to work. ( Id. ). Dr. Telfer noted Plaintiff had mild leukopenia that could potentially be caused by her medications, or possibly another condition, such as Felty's syndrome. ( Id. ). He recommended she have a complete blood count test and return in one month. ( Id. ).

Plaintiff had a follow-up with Dr. Aluen a few days later, on July 13, 2010. At that time, Plaintiff admitted to not refilling one of her blood-pressure medications since November 2009, and her high blood pressure reading showed it was unlikely she had taken that medication. (R. 469). Plaintiff also reported generalized joint tenderness, and Dr. Aluen found she had pain with range of motion testing in her upper and lower extremity joints, but no effusion or erythema (redness). ( Id. ). Dr. Aluen noted Plaintiff had a low white blood cell count according to her recent lab results. ( Id. ).

Plaintiff's DIB claim was denied on reconsideration on August 18, 2010. (R. 105). In follow ups with at the Hematologic Clinic in September and October 2010, Plaintiff had no new complaints, but had not yet undergone the complete blood count test that Dr. Telfer had recommended. (R. 460-61). She finally had the testing done in mid-September and scheduled a follow up for October. (R. 465-66).

A couple of weeks later, on September 29, 2010, Plaintiff saw Dr. Case for a regular follow-up. (R. 459). She reported experiencing pain at a rate of 5 out of 10, morning stiffness in the hands that lasted a half day, and arm stiffness that lasted all day. ( Id. ). Upon examination, her range of motion in the hands, wrists and ankles was normal, although she had some tenderness in the ankles and pain in the hand joints. ( Id. ). To determine whether Plaintiff's leukopenia was improving, Dr. Case recommended that she have her lab work redone before her next visit, set for November. ( Id. ).

On October 13, 2010, Plaintiff returned to the Hematologic Clinic with the complete blood count test results, and met with a new doctor, Dr. Catchatourian. (R. 458). Plaintiff had no swelling in the joints, but did display some "purple discoloration" in the ankles and tenderness on palpitation. ( Id. ). Dr. Catchatourian's impression was mild thrombocytopenia and mild leukopenia, that was probably due to Plaintiff's medications. ( Id. ). The doctor determined there was no need to have Plaintiff undergo any further testing at that time, and instead instructed Plaintiff to return in six months with new lab work results. ( Id. ).

In November and December 2010, Plaintiff visited Dr. Aluen for routine check-ups. (R. 448-50; 500-502). At this time, Plaintiff had some fatigue and joint pain, as well as synovitis at the wrists, but stated her joint pain was improved. (R. 500-02). Dr. Aluen made an appointment for Plaintiff to have a colonoscopy, and noted she had tried to refer Plaintiff previously for this procedure three times. (R. 502). There is no explanation in the record for why Plaintiff required four referrals for this procedure. Dr. Aluen also noted Plaintiff was experiencing postmenopausal bleeding, and scheduled her for an endometrial biopsy to investigate. (R. 448-49; 502). After Plaintiff initially missed the ...


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