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Carter v. Colvin

United States District Court, C.D. Illinois, Springfield Division

January 27, 2015

OZIE C. CARTER, Plaintiff,


RICHARD MILLS, District Judge.

This is an action for judicial review of the final decision of the Commissioner of Social Security, finding that Plaintiff Ozie Carter was not entitled to Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423(d) and 1382c.

Pending before the Court is the Commissioner's Motion for Summary Affirmance. Pending also is the Plaintiff's Motion for Summary Judgment.

For the reasons that follow, the Court finds that the administrative decision is not supported by substantial evidence.


The Plaintiff applied for DIB and SSI in July of 2009, alleging that she became disabled on June 4, 2009, due to degenerative joint disease, back pain, obesity, diabetes and depression. The Plaintiff's applications were denied initially and upon reconsideration. A hearing was held before an administrative law judge (ALJ) on September 1, 2011, during which the Plaintiff testified. A vocational expert, Dennis Gustafson, also testified.

On October 12, 2011, the ALJ found that Plaintiff was not disabled because she could perform a significant number of jobs in the national economy. The Appeals Council denied the Plaintiff's request for review. Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), the Plaintiff seeks judicial review of the ALJ's decision.


A. Background Facts

The Plaintiff was born in October of 1957 and was 51 years old at the time of her alleged onset date. Her highest level of formal education was the 9th grade. The Plaintiff worked jobs as a school bus driver, as a steamer at a uniform cleaning company and as a cashier. She stated on a Social Security application on July 28, 2009 that she became "unable to work" on June 4, 2009, and that she remained "disabled." On a separate form, she stated that "degenerative joint disease, diabetes, obesity, lower back pain and depression" were the conditions that "limit" her ability to work because she was not able to stand for long periods, her legs and arms went numb, she had constant pain in her neck and hands, and the effects of a remote car accident eroded her mobility and mobile skills.

B. Medical evidence

The ALJ's decision makes credibility findings, assessments of medical opinions, findings and conclusions based on extensive citations to the record.

In September of 2008, the Plaintiff (who still worked at the time) saw her doctor at a community health clinic. He noted she was morbidly obese. Her affect was "exaggerated" and this was accompanied by flight of ideas and emotional liability during the examination. The Plaintiff had tenderness and lost motion to a mild degree in her neck, and she had positive clinical signs of carpal tunnel syndrome upon examination. Her diabetic glucose levels and hemoglobin A1C were well controlled. She was diagnosed with both brachial neuritis and carpal tunnel syndrome. The doctor stated she needed to be evaluated with Beck Depression Inventory. The Plaintiff was sent to a therapist who agreed she had depression. She denied that depression itself was a problem, telling the therapist that treatment for depression would not help her pain and lack of finances. The Plaintiff "appeared depressed" according to the doctor who examined her neck and hands, and was diagnosed with depression as well.

On September 24, 2008, simple x-rays indicated moderate degenerative changes at multiple levels of her cervical spine. The Plaintiff had stopped testing her diabetes. Her A1C level rose to 13. Although the Plaintiff requested an MRI for her neck, she was told she had to wait for a pain specialist referral. However, she could not afford the services of a pain specialist. Because she was unable to see a pain specialist, the Plaintiff could not obtain a refill of her pain medication.

In February of 2009, the Plaintiff did see a pain specialist. Goran Tubic, M.D., reviewed an MRI which he said showed foraminal nerve encroachment in the cervical spine. Dr. Tubic stated she needed an epidural steroid injection for her neck pain. Because the Plaintiff had no insurance, was self-pay and could not afford this treatment, Dr. Tubic placed her on four different pain medications, including Neurontin, Cymbalta, Voltaren and Norco. Dr. Tubic noted that she had severe pain from trying to work as a bus driver. After taking the medications for a month, the Plaintiff found that when she took all four, she felt better. However, she could not afford all four medications. In May, she had to stop driving and was then trying to work as a monitor only. According to the radiologist, the MRI showed that Plaintiff had moderate compression and flattening of the spinal cord at C4/5. The moderate neuroforaminal narrowing noted by the doctor was at C5/6. At C6/6, the Plaintiff was again found to have moderate spinal stenosis. The pain specialist, Dr. Tubic, agreed that Plaintiff had cervical radiculopathy.

When she followed up with her primary doctor in April of 2009, the Plaintiff had diminished sensation in her lower extremities and had a 50-pound weight gain and now weighed 270 pounds. The Plaintiff complained her legs felt heavy and she had neck pain, pain in her arms and hands, and tingling of her arms. She attributed the disc changes in her cervical vertebrae to an auto accident. The Plaintiff was seeing an acupuncturist nurse who noted a number of problems. Her diabetes control was acceptable. The Plaintiff reported that driving to her appointment had exacerbated her problems and she complained about her financial and medical problems. In May of 2009, the acupuncturist observed edema in her feet and her hands.

Although the Plaintiff was still trying to work on June 1, 2009, she stopped working three days later because it involved too much traveling and pain in her arms and hands from driving. The Plaintiff believed her employer treated her unfairly. She continued to see the nurse practitioner and get acupuncture in order to provide relief from her bodyache and hand and arm discomfort. She felt that doing laundry and housework had aggravated her pain.

The Plaintiff states that some of her medical records are not included as part of the record. On November 24, 2008, there is an indication that prescribed wrist splits were of no help for her symptoms of pain and numbness in all ten fingers. The Plaintiff had been sewing in the fall of 2008, which resulted in pain in her hands which awakened her at night.

The Plaintiff was sent to Joseph J. Kozma, M.D., for a consultative physical examination on January 12, 2010. Dr. Kozma found her to be "screaming and acting aggressively" and it was hard to interview her because she was off topic "about personal conflicts with little relationship to physical performance. She was agitated throughout the entire examination." The Plaintiff was cooperative but "very emotional." Her grip strength was determined to be low average at 3/5 bilaterally. Dr. Kozma commented on her mental status as follows:

She has a very unstable emotional state. She appears to be functioning well intellectually but she is extremely emotional showing characteristics of emotionally unstable personality. She has outbursts of extreme emotions. While she obviously thinks that her emotional outbursts will help her cause with her disability it is clear that the behavior is ineffective if it is applied to her physical characteristics.

Although Dr. Kozma did not reference any other medical records he was sent to review, he was aware that Plaintiff was taking medications, including neurontin, cymbalta, amitriptyline, and flexeril. He noted there was no reliable information on her obesity. Dr. Kozma assumed she had hypertension, based on the medication she was taking. He diagnosed morbid obesity with a body mass index of 52 and stated she had difficulty moving as a result. Dr. Kozma also diagnosed reactive depression and a sociopathic personality.

In February of 2010, the Plaintiff was evaluated by Diana Widicus, M.D. Dr. Widicus opined that she had a diminished IQ and her diabetes was poorly controlled. Her A1C level was 13. According to Dr. Widicus, because of the Plaintiff's short attention span, she would have difficulties with even simple, sedentary one or two-step job duties. Dr. Widicus stated that Plaintiff had cervical and lumbar radiculopathy with nerve encroachment, and severe varicosities in her legs that made it difficult for her to stand and walk. Following an examination on June 17, 2010, she wrote the Plaintiff a prescription for a motorized scooter.

On March 12, 2010, the Plaintiff visited Fred Stelling MA, LCP for a consultative psychological examination. Dr. Stelling observed concerns with immediate memory/attention, short term memory and concentration. He noted that immediate/short term memory issues can be related to depression. Dr. Stelling did not find the Plaintiff to be malingering and assessed a Global Assessment of Functioning (GAF) score of 50-51.[1] He found that her depression and pain were connected and issued a guarded prognosis.

On March 26, 2010, the Plaintiff's file was reviewed by psychologist Russell Taylor, Ph.D., who found she exhibited signs of Affective Disorder and sleep disturbance, decreased energy and difficulty concentrating and thinking. Dr. Taylor opined the Plaintiff had moderate limitations on her daily activities, social functioning and her concentration. He observed serious credibility concerns because Dr. Kozma had found that Plaintiff's only impairment was obesity. Dr. Taylor opined that Plaintiff's degree of impairment alleged was not supported. Her impairments would not preclude the capacity to engage in work related activity.

On June 9, 2010, the Plaintiff was seen by Claude Fortin, M.D., a neurologist. He assumed that her diabetes was poorly controlled and observed that Plaintiff needed to lose weight. Dr. Fortin encouraged her to get a primary care physician.

In July of 2010, Matthew Bilinsky, M.D., a state agency physician, reviewed the claim and noted Dr. Widicus's opinion. The Plaintiff claims he noted only the negative findings and did not address the positive findings or diagnoses and conclusions of Dr. Fortin. Dr. Bilinsky observed Dr. Kozma found nothing wrong with the Plaintiff except for obesity. He gave Dr. Widicus's medical source statement "partial" but not "controlling" weight and found the Plaintiff to be "partially" credible.

In July of 2010, the Plaintiff filled out a form wherein she noted a number of medical problems. These included chronic pain in her hands, the deterioration of her spine and difficulty standing and walking. She visited a primary care doctor, Ronald Johnson, M.D., who observed that she had seen Dr. Widicus several months earlier but because she did not have insurance previously, the Plaintiff had questionable compliance with therapy. Dr. Johnson noted a limited IQ.[2] He observed she had a number of problems though her medical records were not available. Dr. Johnson observed clinical varicosities and diminished pulses in her feet and diminished range of motion of neck and spine. He concluded she had C5/6 stenosis and L4/5 disk disease. Dr. Johnson also diagnosed diabetic neuropathy and morbid obesity. Her A1C test was within range at 6.9. In September of 2010, Dr. Johnson observed that Plaintiff was "Weeping and wailing" about her weight. He explained she needed to go on a diet and get her weight under control before starting an exercise program. Dr. Johnson stated she was probably not emotionally stable enough for weight loss surgery. He suggested the Plaintiff get in-home care but she refused. Her A1C had risen to 7.9.

By May of 2011, Dr. Johnson believed the Plaintiff needed psychiatric intervention, a neurological referral and an occupational therapy evaluation for a wheelchair. The Plaintiff's weight had increased to 300 pounds and she sat rocking and crying "Jesus... 300, " while appearing uncomfortable. Dr. Johnson observed her to be mentally unstable and needed to see a psychiatrist.

On May 3, 2011, the Plaintiff was seen by the certified physician's assistant. She was noted to have 2 edema in her legs. Her responses were slow, her speech was slurred and she appeared sleepy, but Dr. Johnson's nursing staff told the certified physician's assistant this was normal for her.

In October of 2010, Dr. Fortin noted severe clinical signs including positive Tinel's and Phalen signs. He performed objective EMG tests proving "severe" bilateral median neuropathy and referred her for surgery. In November 2010, she again saw Dr. Fortin, who noted Dr. Green had since performed bilateral hand surgery which helped. In May of 2011, Dr. Fortin noted she was on 19 different medications. He noted depression and complaints of disabling pain. Dr. Fortin found she was morbidly obese, had a flat affect and she had a "labored" gait. Two months later, Dr. Fortin observed her gait to be tenuous and small-stepped. Dr. Fortin was willing to fill out forms for a scooter for her.

The Plaintiff had an objective MRI of her spine performed in December of 2009, which showed an encroachment of the neural ...

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