United States District Court, N.D. Illinois, Eastern Division
VENETTA A. OUTLEY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
I. Shadur, Senior United States District Judge
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),
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")
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
2. Commissioner seeks affirmance of her denial of benefits.
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
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.
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. 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
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
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).
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).
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).
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).
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).
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).
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).
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).
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.
followed up with Dr. May on May 12, 2012 after she had gone
to the emergency room for chest pains (R. 511). 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).
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.
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,
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).
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
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.
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).
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).
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).
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).
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).
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.
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).
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.
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).
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).
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, ...