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Outley v. Colvin

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

August 30, 2016

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


          Milton I. Shadur, Senior United States District Judge

         Venetta A. Outley ("Outley") seeks judicial review pursuant to the Social Security Act (the "Act"), more specifically 42 U.S.C. §§ 405(g) and 1383(c)(3), [1] of the final decision by Acting Commissioner of Social Security Carolyn W. Colvin ("Commissioner") that denied Outley's claims for disability insurance benefits under Titles II and XVI of the Act. Each of Outley and Commissioner seeks summary judgment under Fed.R.Civ.P. ("Rule") 56:

1. Outley asks for the reversal of Commissioner's decision, with an award of benefits to Outley, or alternatively for a remand of the case for further proceedings.
2. Commissioner seeks affirmance of her denial of benefits.

         For the reasons given in this memorandum opinion and order, Outley's motion is denied in part and granted in part, while Commissioner's motion is denied, and the case is remanded for further proceedings consistent with this opinion.


         Outley applied for social security disability insurance benefits ("SSDI") under Title II of the Act on June 21, 2011, alleging a disability onset date of December 31, 2010 (R. 186, 203). That application was denied on October 14, 2011 and again denied on reconsideration on March 9, 2012 (R. 14, 101, 102). On May 14, 2012 Outley requested a hearing (R. 262), and on September 26, 2012 she augmented her application for SSDI with one seeking supplemental security income ("SSI") under Title XVI of the Act (R. 268-69). Administrative Law Judge B. Carlton Bailey, Jr. ("ALJ Bailey" or simply "the ALJ") held the requested hearing on July 17, 2013 and issued a decision denying Outley's applications for benefits on February 13, 2014 (R. 11, 36). Outley requested review from the Appeals Council, but it denied that request on July 6, 2015 (R. 1). Thus ALJ Bailey's opinion represents Commissioner's final decision.

         Medical Records

         Several sources provided medical records to the Social Security Administration ("SSA"), of which only the ones relevant to the portions of the ALJ's opinion that Outley is contesting will be recited. Outley's primary care physician, Dr. Percy Conrad May, submitted his treatment notes in three waves on July 23, 2011, February 7, 2012 and June 17, 2013 covering the period from November 9, 2009 through June 30, 2012, plus one letter and a prescription dated July 10, 2013.[3] West Suburban Medical Center ("West Suburban") also submitted its notes in three stages related to hospitalizations (1) on March 8, September 26, September 27, October 7 and

         October 8, 2010, (2) on August 18, 2011 and (3) on February 19, July 7 and July 8, 2013. Lastly, physicians and chiropractors at Integrity Medical Group ("Integrity") provided their treatment notes and evaluations concerning Outley's rehabilitation therapy from July 16 through September 28, 2012 following an automobile accident on July 10 of that year.

         Relevant to her present review action, Outley saw Dr. May on January 1, 2010 complaining of a chronic cough and back pain that had not gotten better with medication (R. 308). He attributed the back pain to degenerative disc disease and lumbago and recommended that she stay home from work for the next two weeks (R. 311-12).

         After three to four days of acute back pain that made it difficult to walk, Outley went to West Suburban's emergency room on March 8, 2010 (R. 367). She was given pain medication and discharged (R. 363).

         On June 15, 2010 she again saw Dr. May in "[r]espiratory distress, " having been short of breath for the previous two weeks (R. 312). His only relevant diagnosis was benign hypertension, but he nonetheless provided an out-of-work note for June 12-16 (R. 316-17).

         Outley went to the emergency room at West Suburban again on September 26, 2010 complaining of slurred speech, swelling in her cheek and pain in her neck and back (R. 358-59). Computerized tomography of the brain revealed no acute intracranial process (R. 361). Outley was diagnosed with angioedema and hypertension before being discharged (R. 358). Next day she returned, saying that she had not gotten better, with pain in the center of her chest and unable to catch her breath, especially with exertion (R. 350). Diagnostic imaging of her chest revealed no acute cardiopulmonary process, and so she was discharged (R. 346, 353).

         Outley went to the West Suburban emergency room again on October 7, 2010 because she felt heavy across her anterior chest and had been short of breath intermittently since her September 26 visit (R. 377). But the emergency room staff was unable to diagnose her with anything more specific than chest pain, saying that inpatient care would be needed for further evaluation (R. 376). So Outley returned the following day, complaining of chest pain that had been bothering her on and off for the last ten days and was accompanied by shortness of breath (R. 369). At that time she reported that she was independent in performing her activities of daily living (R. 369). Among her medications was Albuterol, taken as needed (R. 369). After ruling out any acute cardiopulmonary process, the examining physician attributed her symptoms to bronchitis with costochondritis (R. 370).

         Outley followed up three days later with Dr. May, who diagnosed her with chronic obstructive pulmonary disease ("COPD") and added Qvar to her medications (R. 25). On November 10, 2010 Dr. May ordered a spirometry test -- the results of which are not indicated (R. 322) -- and continued her medication for COPD (R. 325-26). During a June 15, 2011 visit for stomach pain she told Dr. May that she had not experienced shortness of breath or wheezing, but she did note increasing back pain, which was again attributed to her degenerative joint disease (R. 334, 338). Dr. May also added Advair to Outley's prescriptions (R. 338).

         Outley went to West Suburban's emergency room again on August 18, 2011 for shortness of breath (R. 419). After radiologists found no acute pulmonary process (R. 427-29), she was diagnosed with an acute upper respiratory infection and acute costochondritis before being discharged (R. 421).

         She saw Dr. May again on October 21, 2011 complaining of back pain that, she said, made it difficult to get out of bed or stand for more than 5 minutes (R. 403). He prescribed a Flovent inhaler and Savella for her pain (R. 407).

         On February 1, 2012 she again visited Dr. May complaining of back pain and shortness of breath among other things (R. 394). He prescribed ProAir, Savella and Symbicort (R. 396-97).

         Outley followed up with Dr. May on May 12, 2012 after she had gone to the emergency room for chest pains (R. 511).[4] At her visit she noted that she continued to be short of breath and had chest pain on and off for the preceding six months (R. 511). But she denied back pain (R. 511). Dr. May refilled her prescription for Symbicort to help with COPD symptoms, in addition to diagnosing her with hypertension and gastroesophageal reflux disease (R. 513-14).

         At a June 29, 2012 office visit with Dr. May Outley complained, among other things, of fatigue, blurred vision, chest pain, lightheadedness, shortness of breath, difficulty breathing even while lying down, wheezing, back pain and tingling (R. 522). Her pulse was 113 beats per minute with a tardus rhythm (R. 524). She rated her back pain as greater than 6/10 (R. 521). Dr. May diagnosed her with hypertension, depression, supraventricular tachycardia and lumbar radiculopathy (R. 525).

         Then on July 10, 2012 Outley was involved in a motor vehicle accident that exacerbated her degenerative disc disease (R. 19, 84, 441). She went to West Suburban the following day, [5]and she continued her recovery with Integrity beginning on July 16 (R. 441). Over the course of her treatment she was given a straight-leg raise test at Integrity four times, with negative results on August 14 (R. 458), August 31 (R. 449) and September 4 (R. 447) and a notation by Dr. Johnson that the test caused lower back pain bilaterally on July 16 (R. 482). Magnetic resonance imaging ("MRI") on her cervical spine revealed broad-based disc protrusions and moderate to severe neuroforaminal and central canal stenosis from the C3-C4 through C7-T1 levels, while an MRI of the lumbar spine showed a broad based disc bulge at ¶ 5-S1 and minimal disc bulging at ¶ 3-L4 and L4-L5, both without stenosis (R. 454).

         Outley saw Dr. Gregory Iavarone ("Dr. Iavarone") at Integrity for chiropractic therapy 11 times between July 17 and September 27, 2012 (R. 445-46, 451-53, 460, 464, 468-69, 477-78). At a September 25 visit Outley reported that her lower back pain had improved, but she still rated it 5/10 (R. 446). Two days later she again rated her back pain at 5/10 (R. 445).

         Those reports of pain contrast with Integrity's final evaluation of Outley's back and neck trauma prepared by Dr. Claudia Johnson on September 28, 2012 (R. 441-44). On that day Outley reported very little pain -- 1 out of 10 -- in part due to epidural injections she had received (R. 441). Dr. Johnson measured her ability to move at the spine but did not draw any conclusions about what those measurements indicated as to Outley's physical capabilities (R. 443). Those measurements for Outley's cervicothoracic spine were 40 degrees forward flexion, extension of 28 degrees with mild stiffness and discomfort at end range, and 68 degrees left and right rotation with pain at end range (R. 443). For her lumbosacral spine, Outley's lumbar flexion was 8 inches fingertips to floor with pain, extension was 26 degrees with slight pain at end range and both left and right rotation were 20 degrees (R. 443). Dr. Johnson also noted a Grade I myospasm in the lumbar paraspinal musculature (R. 443). Stating that Outley had reached maximum medical improvement, Dr. Johnson discharged her from treatment (R. 441).

         In the course of reciting Outley's medical history, Dr. Johnson stated that Outley had suffered a previous cervical and lumbar injury, but that it had resolved completely before the accident and that she had been pain-free (R. 442). Among Outley's medications was Albuterol (R. 442).

         Outley went to the emergency room at West Suburban on February 19, 2013 with chest pain, but left without being seen (R. 553-54). Chest pain sent her to the hospital again on July 7, 2013, where she was given acetaminophen and discharged to follow up with Dr. May (R. 539, 541-42). She returned to West Suburban the following day again complaining of chest pain, but again left before being seen (R. 536).

         On July 10, 2013, Dr. May wrote a brief letter addressed "To Whom It May Concern" (R. 531). It said simply that Outley was under his care and that "[h]er condition has not improved, and in fact has deteriorated" (id.). He gave her a prescription for Oxycontin that same day (R. 533).

         Outley's Stated Symptoms[6]

         As part of her initial SSDI application Outley completed a Function Report and a Physical Impairments Questionnaire (collectively the "2011 Function Report"). There she relayed that the issues with her spine made it difficult to move (R. 215), noting that the pain sometimes (but not always) interfered with her ability to care for herself (R. 216). Though she did not drive (R. 218), she went to church 2 to 3 times per month (R. 219). She said she could lift 5 to 10 pounds and walk about half a block before resting (R. 220). Aside from frequently being short of breath, her physical complaints almost exclusively involved those related to walking, bending, squatting and other activities related to the spine (see R. 220-21, 225). She also stated that her arthritis often made it difficult to use a can opener, open jars or pick up a coin (R. 224) and that her fingers sometimes cramped holding a pencil or pen (id.). She said that her fatigue interfered with sorting and filing papers or reading a newspaper or book (R. 224), and it was brought on by "stirring around" (R. 225). And her back issues restricted her ability to reach above her waist, carry groceries, enter or exit a car, get up from a chair or sit for more than two hours at a time (R. 224-25).

         When Outley requested reconsideration in December 2011, she communicated that her condition had worsened and that as a result she had difficulty using her arms and hands (R. 232). Outley also had her daughter complete a new Function Report and Physical Impairments Questionnaire for her on February 7, 2012 (collectively the "2012 Function Report"), which again noted that her pain caused her difficulty with dressing, getting out of the bath tub, caring for her hair and using the lavatory (R. 239). She reported that she no longer prepared her own meals nor did any household chores (R. 240). She no longer went grocery shopping (R. 241). She had stopped going to church and no longer spent time with others (R. 242).

         At the ALJ hearing on July 17, 2013 Outley testified concerning her symptoms and impairments. She said that work had become very difficult before she lost her job in customer service because she would often run out of breath before finishing a sentence, she had trouble sitting and her hands and feet would become swollen (R. 50). She claimed that pain kept her home almost every week, although not always with the same kind of pain (R. 51). She often had trouble sleeping, she claimed, but she did not have the money to visit the doctor regularly or to afford the medication that was prescribed (R. 54).

         On the day of the hearing Outley claimed that her pain was primarily in her neck, chest, spine and down her left leg and that her feet and hands were swollen (R. 54). She stated that her pain was usually at a high level but would ebb after a time (R. 54). At other times her lumbar spine rather than her cervical spine would hurt (R. 55). Her pain could be like pins and needles, sharp or a dull ache, but in her feet it was almost always pins and needles (R. 55). She also denied that her current pain medication was helping (R. 61-62, 63-64).

         As to her daily activities Outley testified that her daughter needed to come by every day to help her take a bath and that Outley herself could not do any housework other than wash an occasional dish (R. 55, 56). In response to the question whether she did light cooking, she responded that she could use the microwave (R. 55-56). She would shop for groceries with her daughter's assistance, but her daughter had suggested just doing it herself (R. 56). Outley said she went to church a few times a month, but she could not walk more than a block and a half before she started to run out of breath and have pain in her legs (R. 56). Talking for long periods of time would also leave her winded (R. 68). She always had one of her daughters by her side to help her (R. 57).

         Medical Opinions

         Outley was given a consultative examination by Dr. Liana Palacci on August 30, 2011 (R. 380-83). Dr. Palacci spent a total of 42 minutes with Outley while reviewing the records from Dr. May and preparing her report (R. 380). She noted that Outley used her Albuterol inhaler twice a day but had not needed a course of Prednisone (R. 380). Outley was not in acute distress on the day of the examination and was able to speak in full sentences (R. 381). Dr. Palacci heard nothing irregular in her heart rhythm or her lungs (R. 382). She noted that Outley could walk without seeming to compensate for pain, her grip strength was normal and she could make fists and oppose her fingers (R. 382). There was no diminished range of motion in Outley's hips, knees, ankles or cervical spine, and a straight-leg raise test was negative (R. 382). Outley's range of motion in her lumbar spine, however, was 70/90 degrees flexion and 25/25 degrees extension (R. 382). Dr. Palacci's clinical impressions were that Outley had well-controlled asthma and hypertension, a history of pancreatitis and complaints of lower back pain (R. 383).

         Dr. Towfig Arjmand reviewed Dr. Palacci's consultative examination report, Dr. May's treatment notes and the hospital records from West Suburban but did not examine Outley himself, and he then completed a Physical Residual Functional Capacity Assessment (the "Arjmand Assessment") on October 13, 2011 (R. 101, 104, 385-92). As to Outley's symptoms, Dr. Arjmand said her statements were only "partially credible" on the basis of the fact that Dr. Palacci had noted a normal grip strength and the ability to both make a fist and oppose her fingers, thus undermining what Outley had said about her hands, which Dr. Arjmand's paraphrase presented as a persistent rather than occasional problem (id. at 390).

         But Dr. Arjmand did conclude that Outley's medically determinable impairments could be expected to produce some limitations that restricted her to light work (R. 387, 390). Specifically, the Arjmand Assessment stated that Outley could occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, stand or walk for 6 hours a day, sit for 6 hours a day and push or pull without limitation (R. 386). No postural or manipulative limitations were indicated (R. 387-88), but Outley's asthma and cardiovascular conditions meant that she should avoid concentrated exposure to extreme cold, extreme heat, humidity, fumes, odors, gases and poor ventilation (R. 389). In support Dr. Arjmand cited Dr. Palacci's clinical impressions, her range of motion findings, the negative result of the straight-leg raise test and the grip strength test result (R. 386-87). Also recited were (1) West Suburban's treatment notes stemming from Outley's October 8, 2010 hospitalization, ...

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