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Tenorio v. Colvin

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

September 15, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


SHEILA FINNEGAN, Magistrate Judge.

Plaintiff Maria Tenorio seeks to overturn the final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. 42 U.S.C. §§ 416(i), 423(d). 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 the Commissioner's motion, denies Plaintiff's motion, and affirms the decision to deny disability benefits.


Plaintiff applied for DIB on November 1, 2006, alleging that she became disabled on January 1, 2003 due to depression and ankle problems, including a femur fracture. (R. 103, 290). The Social Security Administration ("SSA") denied her application initially on December 8, 2006, and again upon reconsideration on April 13, 2007. (R. 103-04). After Plaintiff's timely request, she had an initial hearing in this matter on March 3, 2009. (R. 74-102). On May 27, 2011, the Appeals Council remanded Plaintiff's case for a second hearing, because the recording device at the initial hearing failed to record all of the testimony. (R. 114-17). Administrative Law Judge Janice M. Bruning (the "ALJ") held the second hearing in this matter, without incident, on October 27, 2011. (R. 35). The ALJ heard testimony from Plaintiff, who was represented by counsel, as well as from medical expert Kathleen O'Brien (the "ME") and vocational expert Aimee Mowery (the "VE"). ( Id. ). A few months later, on February 16, 2012, the ALJ found that Plaintiff is not disabled because she was capable of performing her past work as a telephone operator and in customer service, as well as other jobs, prior to her December 31, 2005 date last insured ("DLI"). (R. 26-28). Plaintiff requested review of the ALJ's decision, and on May 1, 2013, the appeal was denied. (R. 7-11). 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 in (1) determining her physical residual functional capacity ("RFC") assessment; (2) evaluating the opinion of her treating psychiatrist, Dr. Walter A. Pedemonte, regarding her mental health; and (3) making a flawed credibility determination. As discussed below, the Court finds that the ALJ's decision is supported by substantial evidence and does not require reversal or remand.


Plaintiff was born on March 9, 1957, and was 48 years old as of her DLI. (R. 216). She lives in a house with her husband, who is disabled due to Parkinson's disease. (R. 39-40). Plaintiff earned a GED, and worked in a printing company as a machine operator from 1989 to 1997. (R. 39, 63, 95-96, 291). Plaintiff testified that she left that job due to pain when standing for long periods. (R. 291; 522). She was then supported by her husband for a while, but began working at Sak's as a customer service agent and a telephone operator in mid-2000, when her husband's symptoms became too severe for him to continue working. (R. 51-52, 63, 96, 291, 522). Plaintiff stopped working at Sak's after about a year and a half, because the call center where she worked closed. ( Id. ). She also testified that she was having panic attacks, trouble concentrating, and trouble handling work pressures while at Sak's. ( Id. ). Plaintiff then had trouble finding work until 2004, when she got a job doing filing for one of her doctors. (R. 50, 96, 291, 327, 522). She testified that she only worked at her doctor's office for a few weeks before she ceased working due to the same problems she had while working Sak's. ( Id. ).

A. Medical and Psychiatric History

1. 1994-1998

Plaintiff's earliest treatment records are from January 24, 1994, when she received treatment from Dr. Linda Bonvissuto, an internist, for abdominal pain, gastrointestinal problems, and headaches. (R. 651). Following Plaintiff's 1994 visit with Dr. Bonvissuto, there is a gap in Plaintiff's medical records until November 1996, when she had sinus surgery to alleviate various sinus conditions. (R. 639-640). Then there is another gap in the medical records until July 1997, when Plaintiff complained of back pain, and had whole body bone scan. (R. 636). The bone scan produced normal results, except for a mild issue with Plaintiff's right humerus bone that had no relationship to Plaintiff's pain symptoms. ( Id. ).

A few months after Plaintiff's bone scan, on October 29, 1997, she visited Dr. Michael Brage, a foot and ankle surgeon, complaining of pain in her heels, ankles and calves for the past eight months. (R. 637-38). Dr. Brage noted flatness in Plaintiff's arches and that she had pain on palpation, but she also displayed good pulses and had no other deformity in her feet. ( Id. ). The doctor diagnosed Plaintiff with "possible" avascular necrosis of her tali.[1] ( Id. ). He also noted that Plaintiff had a bone scan and x-rays that did not support the diagnosis, but thought an MRI of her ankles should be done to rule out the possibility she had the disease. ( Id. ). Plaintiff's subsequent MRI produced normal results. (R. 629; 633).

On January 27, 1998, Plaintiff visited a neurologist, Dr. Donald Kulhman, to determine if her ankle and foot pain resulted from neurological issues. (R. 633-35). At that time, Plaintiff reported a life-long pain in her ankles and feet that had increased in the past seven years, and that at times extended into her calves, thighs and low back. (R. 633). She denied sensory loss or problems with weakness. ( Id. ). Plaintiff also reported trying various pain medications in the past, but said she stopped using them because they made her feel "like a zombie" or "not herself." ( Id. )

Dr. Kulhman found Plaintiff was "entirely within normal limits" upon neurological examination, and found her motor power, movements, sensation and gait were normal. (R. 634). The doctor also noted Plaintiff had normal MRIs of the ankles and low back, a normal EMG, and a normal nerve conduction study in the past. (R. 633). Dr. Kulhman determined Plaintiff's pain was not likely neurological in origin, but recommended additional testing to rule out any possible neuropathic component. (R. 634). The doctor also prescribed amitriptyline for Plaintiff's pain.[2] ( Id. ).

When Plaintiff revisited Dr. Kulhman for a follow-up on February 24, 1998, she stated she had severe pain, but she had stopped using the amitriptyline because it made her "crazy." (R. 632). Dr. Kulhman noted that the testing he recommended came back with "unremarkable" results. ( Id. ). Plaintiff's neurological exam was also normal, except for slight tenderness in the ball of the foot and a minimal decrease in temperature perception in the toes. ( Id. ). Dr. Kulhman thought Plaintiff might have plantar fasciitis, or some other condition, but was not sure.[3] ( Id. ). He recommended an EMG and some other procedures to evaluate the "remote" possibility Plaintiff had a neurological disorder, and scheduled her for a follow-up in a few weeks. ( Id. ).

The record does not show whether Plaintiff had the EMG or other recommended testing, but does reflect that she had a follow-up with Dr. Kuhlman on April 16, 1998. (R. 630). At that time, Dr. Kulhman observed that Plaintiff displayed normal motor functioning, normal reflexes, and normal neurological examination results. ( Id. ). The doctor still thought Plaintiff's pain was not likely neurological in origin, but was not sure. ( Id. ). He recommended additional testing and a follow-up, as well as a consultation with a rheumatologist. ( Id. ). The record does not reflect whether Plaintiff followed any of these recommendations, or ever returned to see Dr. Kulhman again.

In July 1998, a few months after her last visit with Dr. Kulhman, Plaintiff visited a podiatrist, Dr. Myron I. Wolf, for a consultation regarding her foot and ankle pain. (R. 629). Dr. Wolf wrote a July 6, 1998 letter documenting the consultation. ( Id. ). Plaintiff reported "many months" of pain and swelling, and stated her symptoms had been progressing. ( Id. ). Dr. Wolf noted some tenderness and edema along Plaintiff's posterior tibial tendons during his examination, but her circulation and sensation were intact, with no deficit or burning into her digits.[4] ( Id. ). The doctor also noted Plaintiff's nerve conduction studies and MRI were normal, and demonstrated no boney pathology. ( Id. ). Dr. Wolf's impression was bilateral posterior tibial tendon syndrome.[5] ( Id. ). He recommended Plaintiff undergo diagnostic imagining focused on Plaintiff's posterior tibial tendon, and return for a follow-up. ( Id. ). The doctor also noted that custom-made shoe inserts and physical therapy treatments might be necessary to decrease Plaintiff's symptoms. ( Id. ). Following Dr. Wolf's letter in 1998, there are no further medical records until 2004.

2. 2004-2006

On August 26, 2004, Plaintiff sought treatment at Progressive Medical Center for a cough, stuffy nose, itchy throat, and wheezing. (R. 488-90). Plaintiff described a history of asthma and allergic rhinitis, and stated that she was taking Albuterol.[6] (R. 488-89). The doctor assessed Plaintiff with acute asthma exacerbation, to be treated by using her Albuterol in a nebulizer, and allergic rhinitis, to be treated with Advair and Claritin. (R. 490). Plaintiff was told to follow-up in two weeks, but she did not return until about seven months later, in March 2005. ( Id. ).

When Plaintiff returned to the Progressive Medical Center in March 2005, she complained of chest congestion and displayed wheezing. (R. 491). The doctor recommended Advair, Claritin, and Medrol, and told Plaintiff to return when needed. ( Id. ). Plaintiff returned a little over a year later, on April 11, 2005. (R. 492). She complained of coughing, chest congestion and wheezing, and was recommended similar medications as before. ( Id. ).

The next chronological record is a letter dated July 15, 2005, from Plaintiff's husband's psychiatrist, Dr. Walter A. Pedemonte. (R. 448). The letter states that Plaintiff's husband was under Dr. Pedemonte's care for major depression and Parkinson's disease, that Plaintiff cares for her husband, and that she should apply for social security disability for financial assistance so she can care for her husband 24-hours a day. ( Id. ). The letter does not discuss any treatment provided to Plaintiff by Dr. Pedemonte, or whether she also had any psychiatric or medical conditions. ( Id. ).

Plaintiff returned to the Progressive Medical Center on March 29, 2006, about a year after her previous treatment, and about three months after her December 31, 2005 DLI. (R. 493). She had similar complaints as in her past visits, was recommended similar medications as before, and was told to return when needed. ( Id. ). There are no records showing Plaintiff returned for treatment at Progressive Medical Center again.

3. July 2006-April 2007

Plaintiff's next treatment records are from July 29, 2006, about seven months after her December 31, 2005 DLI. (R. 354). These records show Plaintiff was hit by a motor vehicle while riding her bicycle, resulting in fractures in several of her ribs and in her left femur. (R. 354-64; 378-406; 457-80). She was treated at Elmhurst Memorial Hospital, and required surgery on her femur, including the insertion of an intramedullary guide rod.[7] (R. 378-79). Plaintiff reported the ability to ambulate normally around her community, without the need for any assistive devices, before her accident. (R. 460). After her accident, Plaintiff required a walker, and engaged in daily physical therapy at Elmhurst for rehabilitation purposes. (R. 416-423; 521). She reported to her physical therapist that her goal was to return home to continue caring for her husband. (R. 423).

While she was in physical therapy, Plaintiff developed symptoms of post-traumatic stress disorder and requested psychiatric counseling. (R. 521). On August 9, 2006, she was examined by a psychiatrist at Elmhurst, Dr. Timony M. Cullinane. (R. 522-24). Plaintiff explained to Dr. Cullinane that she had depression due to her husband's illness and various employment and financial issues. (R. 522-24). She also stated that she developed tendonitis and plantar fasciitis around 1997, and had to stop working due to difficulty standing. (R. 522). Her husband was the main provider until about July 2000, when his tremors from Parkinson's disease became severe. ( Id. ). Plaintiff's husband then quit working, and she began working at a call center for Sak's, but lost the job in 2001 when the call center closed. ( Id. ). Her husband's condition worsened, and Plaintiff had to care for her husband, who could not eat, bathe or dress himself. (R. 522-23). Caring for Plaintiff's ...

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