United States District Court, N.D. Illinois, Eastern Division
SANDRA A. SIKORSKI, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
FINNEGAN United States Magistrate Judge
Sandra A. Sikorski seeks judicial review of the final
decision of the Commissioner of Social Security
(“Commissioner”) denying her application for
Disability Insurance Benefits under Title II of the Social
Security Act (the “SSA”). 42 U.S.C. §
405(g). The parties consented to the jurisdiction of the
United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(c). Plaintiff moved for summary judgment seeking
reversal or a remand, and Defendant responded with arguments
in support of affirming the decision. After careful review of
the record, the Court denies Plaintiff's motion and
affirms the Commissioner's decision to deny benefits.
applied for disability benefits on August 19, 2011, alleging
that she became disabled on April 1, 2010 due to Crohn's
disease, bulging discs in her neck, arthritis in her hands
and knees, attention deficit disorder, and depression. (R.
131, 134). The Social Security Administration denied the
application initially on November 22, 2011, and again upon
reconsideration on May 11, 2012. (R. 15, 62, 63). Plaintiff
filed a written request for hearing and appeared before
Administrative Law Judge Sylke Merchan (the
“ALJ”) on September 19, 2013. (R. 29-61). The ALJ
heard testimony from Plaintiff, who was represented by
counsel (the same counsel representing her in this appeal),
along with medical expert Alan Heineman, Ph.D. (the
“ME”), and vocational expert Craig Johnston (the
“VE”). (Id.). The following month, on
October 24, 2013, the ALJ found that Plaintiff was not under
a disability within the meaning of the Social Security Act
from April 1, 2010 through the date last insured, March 31,
2012, because she was capable of performing past relevant
work as a shipping checker. (R. 15, 24). The Appeals Council
denied Plaintiff's request for review on January 9, 2015,
and Plaintiff now seeks judicial review of the ALJ's
decision, which stands as the final decision of the
Commissioner. (R. 1-3).
support of her request for reversal or remand, Plaintiff
argues that the ALJ: (1) erred in determining that
Plaintiff's mental impairments are not severe; (2)
improperly ignored medical evidence in the records of her
treating physicians suggesting Plaintiff suffers from
disabling physical impairments, and instead engaged in her
own lay person analysis; (3) made a flawed residual
functional capacity (“RFC”) assessment by not
considering all impairments in combination, and improperly
discounting Plaintiff's statements regarding the severity
and limiting effects of her symptoms; and (4) ignored the
VE's testimony that a person needing to use the bathroom
6-9 times throughout the day would be unemployable. As
discussed below, the Court finds that the ALJ's decision
is supported by substantial evidence and does not require
reversal or remand.
was born on August 17, 1964 making her 47 years old on the
date last insured and 49 years old at the time of the
ALJ's decision. (R. 24, 117). She is a high school
graduate and lives with her husband and two of her three
children aged 19 and 25. (R. 35). In the fifteen years prior
to filing for disability, Plaintiff reported working:
part-time for a collection agency (November 1997 to May
1998); full-time in customer service for an import/export
warehouse (January 2004 to June 2005); and full-time for a
repair and towing company (June 2005 to April 2009). (R.
Medical and Other History
March 12, 2005, Plaintiff was admitted to Evanston
Northwestern Healthcare complaining of abdominal pain and
exhibiting acute cholecystitis. (R. 217). Plaintiff told doctors
she had been diagnosed with Crohn's disease 16 years
earlier and been admitted to the hospital for flare-ups 4
times over the preceding 4 years. (R. 222). Based on results
from CT scans, Plaintiff was diagnosed with Crohn's
disease and treated with antibiotics therapy. (R. 236, 250).
She was discharged on March 17, 2005 with instructions to
follow-up with a gastroenterologist, and prescriptions for
Asacol (an anti-inflammatory) and two antibiotics. (R. 244).
on a referral from the office of Nader Aziz, M.D.,
Plaintiff's primary care physician, Plaintiff underwent a
lower GI series for her Crohn's disease on April 4, 2005.
The tests showed a complete obstruction of the distal
ascending colon that was not typical for Crohn's disease.
(R. 284). A May 11, 2005 CT scan of the abdomen and pelvis
further showed a “[m]arkedly abnormal right colon and
cecum with marked thickening of the wall and significant
limitation and irregularity of lumen with extension of mass
outside the colon.” (R. 283). Plaintiff testified that
she underwent a colon resection sometime later in 2005, but
there are no medical records of that procedure. (R. 41).
Plaintiff testified that after the surgery, her condition
from Crohn's disease, including frequent bowel movements,
“just steadily seemed to have gotten a little bit
worse” and “they haven't really been able to
put it into remission since then.” (R. 42).
record does not contain information regarding treatment in
the second half of 2005. As noted, Plaintiff worked full-time
for an import/export company that year. (R. 125).
record contains no information regarding any medical
treatment in 2006, and Plaintiff worked full-time for the
import/export business that year. (Id.).
record contains no information regarding medical treatment
during the first eleven months of 2007. On December 12, 2007,
Dr. Aziz referred Plaintiff for a gallbladder/right upper
quadrant sonography due to her history of Crohn's disease
and liver functions. (R. 277). The test was normal.
(Id.). Plaintiff worked for the import/export
company in 2007, but it appears that she worked less than a
full year based on her reduced earnings that year. See infra
at 3, n. 1. She testified that she quit this job (R. 39), and
later suggested she did so due to her Crohn's symptoms.
(R. 42) (“I used the bathroom a lot and, unfortunately,
I was getting to the point where I was taking too many days
and it just, it wasn't worth it. I tried to stay as long
as I could….”).
2008 (Gallbladder removal; hernia; knee problem)
February 7, 2008, Plaintiff went to Advocate Good Shepherd
Hospital with abdominal pains. (R. 273). On examination she
was found to have right upper quadrant pain and a distended
gallbladder. She was admitted to the hospital for further
evaluation and was started on pain control. (R. 274).
Plaintiff was discharged on February 9, 2008 with directions
to follow up with Barry Rosen, M.D. (R. 271-72). On March 13,
2008, Dr. Rosen performed a laparoscopic cholecystectomy and
laparoscopic reduction of an internal hernia at Good Shepherd
Hospital. (R. 260). Plaintiff's gallbladder was removed
and the internal hernia was reduced. (R. 261). There were no
reported complications. (R. 260). The only other medical
treatment records in 2008 reflect that on April 15, 2008,
Plaintiff had x-rays of her right knee due to complaints of
pain. The tests showed minimal osteoarthritic changes with no
fracture or lesions. (R. 279).
terms of her employment, Plaintiff worked for her
husband's auto repair and towing company. While her Work
History Report said she worked full-time, she testified
during the hearing that in 2008 she worked 20 to 30 hours a
week depending upon how she felt, and her husband paid her
when he had money. (R. 37).
record contains no information regarding any medical
treatment in 2009. According to her Work History Report,
Plaintiff stopped working for her husband's company in
April 2009. (R. 142). FICA earnings from that company in 2009
were $2, 300. (R. 125). Plaintiff testified that she stopped
working because “it got to the point where I was
probably off more than I was there.” (R. 37). She said
that since her husband could not count on her to be there,
“he had to put somebody else in the position.”
support of her disability claim, Plaintiff provided records
of several visits to Dr. Aziz's office between February
26, 2010 and February 5, 2013. Based on these records, it
appears that Plaintiff never actually saw Dr. Aziz but
instead received treatment from a physician assistant
(“PA”) - usually Sheila Gillick (“PA
Gillick”) and occasionally Stacy Baum (“PA
Baum”). (See R. 210). At each visit, the PA recorded
Plaintiff's “Chief Complaint, ” “Reason
for Visit, ” and other information. The electronic
medical record for these visits contain sections to record
notes on various topics, such as: a comprehensive list of
history of present illnesses; current medications; diagnosis
history; review of systems; social history; and family
to May of 2010 (Back and Neck Pain): The first
treatment report from Dr. Aziz's office, dated February
26, 2010, reflects the “Chief Complaint” and
“Reason for Visit” as “neck pain for a few
weeks.” (R. 331). Plaintiff complained to PA Baum of
intermittent neck and right upper arm/shoulder pain that had
been coming and going for two weeks. (Id.). The pain
became worse at night, and with sitting, looking down, and
turning her head from side to side. (Id.). The pain
in her upper arm/shoulder area was minimal and there was no
arm weakness, difficulty with fine manipulative tasks,
tingling or numbness. (Id.).
examination, PA Baum observed that Plaintiff had no lump or
swelling in her neck, and her “shoulders showed a
normal appearance” with normal motion on the right. (R.
332-33). There was no pain elicited on motion or during an
impingement test. (Id.). Plaintiff's
sternocleidomastoid and scalene muscles were tender on
palpitation, but her cervical spine appeared normal, there
was no tenderness, and the intrinsic muscles of the neck and
shoulder muscles showed no weakness. (Id.). PA Baum
diagnosed a neck strain, advised Plaintiff to rest her neck
and avoid excessive strain, and prescribed Flexeril (a muscle
relaxant) and Norco (a pain reliever) for use as needed along
with heat and massage. (R. 333-34).
made no mention of any problems with frequent bowel movements
or diarrhea during this visit. Under social history and work,
the records state: “No job change” and
“occupation auto business, works with family (does alot
(sic) of computer work).” (R. 332).
returned to Dr. Aziz's office the next week, on March 4,
2010, complaining of continued neck and right arm pain. She
said the Flexeril provided no relief and she was now
experiencing tingling intermittently on her pinky finger and
the tip of her thumb. (R. 335). PA Gillick found that
Plaintiff's shoulders appeared normal with normal motion
on the right and no associated pain. (R. 337). Plaintiff
complained of significant pain with flexion and extension
from the shoulder, and muscle tenderness in the
sternocleidomastoid and scalene muscles on palpitation, but
there was no tenderness in other muscles or areas of the
spine. (Id.). Plaintiff also exhibited no weakness
in the muscles of the neck or the right shoulder. (R. 338).
PA Gillick diagnosed a “[c]ervical strain [versus]
cervical herniation of C4, C5, ” and prescribed a
Medrol Dose Pack (an anti-inflammatory) and Norco as needed.
(Id.). PA Gillick noted that if there was no
improvement from the medication, an MRI of the cervical spine
would be considered. (Id.). Again, Plaintiff did not
mention any problems with frequent bowel movements or
diarrhea On March 10, 2010 Plaintiff underwent an MRI of her
cervical spine that showed a disc bulge with right
paracentral/foraminal disc protrusion resulting in mild
central spinal canal stenosis and mild to moderate proximal
right foraminal stenosis at ¶ 5-C6. (R. 325). There was
also a shallow broad-based central disc protrusion with an
annular tear at ¶ 6-C7, and a shallow central disc
protrusion at ¶ 4-C5 that resulted in mild narrowing of
the central spinal canal without significant stenosis.
(Id.). The test further revealed a slight reversal
of the cervical lordosis. (Id.).
returned to Dr. Aziz's office on March 11, 2010 to follow
up on her MRI results with PA Gillick. (R. 339). The physical
exam findings were exactly the same as those observed on
March 4, 2010. (R. 340-41). PA Gillick diagnosed Plaintiff
with herniated discs at ¶ 4-C5, C5-C6 and C6-C7, and
radiculopathy in her right upper extremity. (R. 341). PA
Gillick instructed Plaintiff to continue taking Flexeril, add
Celebrex (an anti-inflammatory) to her medication regimen,
and go for a physical therapy evaluation and treatment.
only record of Plaintiff's physical therapy is a
“Discharge Note” dated May 17, 2010 from
Accelerated Rehabilitation Centers (the
“Center”). (R. 285). Plaintiff had attended 5
appointments to address “brachial neuritis or
radiculitis nos [not otherwise specified], ” and missed
1 appointment. (Id.). Her treatment consisted of:
manual therapy; range of motion exercises; passive manual
stretching; progressive resistive strengthening; mechanical
traction; body mechanics/postural training; patient
education; and instructions on an in home exercise program
and therapeutic exercise. (Id.). At her appointment
on March 25, 2010, Plaintiff reported feeling “quite a
bit better, ” though she was still having some
occasional thumb paresthesia and some pain in her
cervicothoracic junction. (Id.). Plaintiff said she
was going on vacation for a couple of weeks and did not
return phone calls to schedule further treatment. The Center
assumed that Plaintiff was no longer interested in pursuing
therapy and discharged her from the Center's active
files. (Id.). At that time, Plaintiff was reportedly
“making progress in terms of her subjective complaints
and function.” (Id.).
noted previously, Plaintiff alleges she became
“disabled” as of April 1, 2010. (R. 131).
24, 2010 Plaintiff again saw PA Gillick. (R. 343). Her
“Chief Complaint” was “sinus pressure, sore
throat [for] 1 week” and “reason for visit”
was “sore on right eye, teeth pain.”
(Id.). The treatment notes reflect that PA Gillick
diagnosed Plaintiff with obesity for the first time on
record. Her body mass index (“BMI”) was recorded
as 41.8. (R. 345). PA Gillick prescribed medications for
Plaintiff's cold and instructed her to restart Weight
Watchers. (R. 345-46). Under Review of Systems, there is an
entry for “Gastrointestinal” which notes
“No abdominal pain.” There is no mention of
problems with diarrhea or too frequent bowel movements.
2010 (Crohn's Disease/Bleeding): Plaintiff next
saw PA Gillick on October 5, 2010, and the PA noted as the
“Chief Complaint” that Plaintiff was “being
seen for a follow up to her Crohn's Disease” and
she reported vaginal bleeding following intercourse related
to a prior hysterectomy and to Crohn's disease. (R.
347). PA Gillick diagnosed Crohn's disease
of the stomach, obesity (BMI was 35.4), vaginal bleeding, and
rectal pain secondary to Crohn's. (R. 349). The
records reflect no complaints of diarrhea or frequent bowel
movements. PA Gillick ordered blood tests and a urinalysis,
and instructed Plaintiff to return to the clinic if the
condition worsened or new symptoms arose. She also wrote that
Plaintiff “needs to see GI - for colonoscopy.”
returned to PA Gillick on October 19, 2010 for a
comprehensive exam, to review her test results, and for a
medication refill. (R. 354). PA Gillick noted that Plaintiff
did not feel poorly, and had no neck pain or stiffness, and
no anxiety, depression or sleep disturbances. (R. 355). Upon
physical examination, Plaintiff's neck demonstrated no
decrease in suppleness or cervical mass, and her back was
normal with no tenderness. (R. 356-57). She still exhibited
abdominal tenderness in the left side on palpitation, but her
bowel sounds were normal, and there was no evidence of any
mass or rigidity in the abdomen. (R. 357). Under
“Review of Systems” for “Gastrointestinal,
” PA Gillick noted: “No dysphagia, no heartburn,
no nausea, no vomiting, no abdominal pain, and no
diarrhea.” (R. 355). PA Gillick diagnosed (in relevant
part) Crohn's disease, and instructed Plaintiff to
follow-up in two weeks for blood work, get a colonoscopy, and
increase exercise and weights. (R. 357-58). PA Gillick also
provided a prescription for Apriso that was to last through
approximately February 2011 (30 day supply with 5 refills).
(R. 357). As noted below, it was not until June 9, 2011 that
PA Gillick next prescribed Apriso when Plaintiff appeared
that day for a “Medication Check” after
experiencing an “exacerbation” of her Crohn's
symptoms. (R. 370).
2011 (arm injury and neck pain): Plaintiff next went
to Dr. Aziz's office on March 3, 2011 after injuring her
arm during a fall. Her “Chief Complaint” was
“Pain on right side of neck starting to shoot down
[patient] fell 10 days ago.” Plaintiff reported the
neck pain began suddenly and was constant, and included pain,
tingling and numbness in her arms, but she had no difficulty
with fine manipulative tasks. (Id.). Plaintiff rated
her pain as an 8 out of 10, and demonstrated tenderness in
her shoulder and back muscles. (R. 362). Her cervical spine
was abnormal in appearance but she had no elbow weakness and
full strength of 5/5. (Id.). PA Gillick diagnosed
herniated cervical discs C5-C6 and C6-C7 right, cervicalgia,
and radiculopathy in the upper right extremity at ¶ 5,
C6, and C7, and prescribed a Medrol Dose Pack, Flexeril, and
Norco. (Id.). PA Gillick instructed Plaintiff to
follow up in 1 week, indicating that if there was no
improvement, an MRI would be considered. (R. 362-63).
next appointment with PA Gillick on March 10, 2011, Plaintiff
reported that her neck pain had gotten worse. (R. 364). PA
Gillick modified Plaintiff's prescriptions to Flexeril,
Norco and Celebrex, and instructed her to return after seeing
an orthopaedic surgeon. (R. 366). Plaintiff saw orthopaedic
surgeon Mark T. Nolden, M.D. on March 23, 2011 complaining of
throbbing right-sided neck pain with radiation into the
parascapular region, right arm, forearm, and associated index
finger numbness. (R. 287). Plaintiff reported her fall to Dr.
Nolden, and told him that she had a one year history of neck
pain and that she underwent physical therapy for one month
which helped. (R. 288). Plaintiff stated her pain tended to
be worse in the morning and “waxe[d] and wane[d]
between a 2 and an 8 on a ten-point scale.”
(Id.). She also reported subjective weakness of the
right upper extremity but denied gait or balance problems.
examination, Dr. Nolden noted no deformity of the neck, no
tenderness when palpating the spine, no trigger point
tenderness on either side, and no muscle spasms.
(Id.). Plaintiff exhibited pain on forward flexion
of the cervical spine and was “somewhat
apprehensive” in performing extension, lateral
bending, and rotation, though all those movements were within
normal limits. (R. 289). A Spurling's maneuver executed
to the right was positive for pain in the right parascapular
region, radiating down the right arm, but there was no pain
on the left side. (Id.). Plaintiff exhibited 4/5
strength in her right triceps and 5/5 in the left, as well as
5/5 motor strength bilaterally in her deltoids, biceps, wrist
extensors, wrist flexors, finger flexors and interossei.
(Id.). Her somatosensation was grossly intact to
light touch over the C4 through C8 dermatomes bilaterally,
though she did exhibit a diminished right-sided
brachioradialis reflex compared to the left. (Id.).
Plaintiff's biceps and triceps reflexes were symmetric
and no pathologic reflexes were elicited in the upper
Nolden took two images of Plaintiff's cervical spine that
revealed anterior longitudinal ligament ossification at
¶ 5-C6 and C6-C7, but the images were otherwise normal.
(R. 289). Dr. Nolden reviewed Plaintiff's MRI from March
10, 2010, and diagnosed “[p]robable right-sided C6
radiculopathy.” (Id.). He recommended physical
therapy and an epidural steroid injection, and scheduled a
follow-up appointment in a month. (Id.). There is no
record, however, that Plaintiff ever had another evaluation
with Dr. Nolden.
9, 2011 (Crohn's exacerbation; diarrhea/frequent bowel
was next seen by PA Gillick at Dr. Aziz's office on June
9, 2011. The “Chief Complaint” was
“Medication Check.” (R. 367). The “Reason
for Visit” stated “stomach is bad---crohn's
exacerbation, no blood in stool, constant pain and diarrhea -
water or mucus - is almost never solid, has 4-5 xa day before
noon - 6-9 x/a day - normally 3x/day but always liquid. Visit
for: medication refill. Patient is here for interval
re-evaluation of therapy for attention deficit disorder
[‘ADD'] and for long-term medication use
evaluation.” (R. 367).
examination, Plaintiff's mood was euthymic, and she
reported no problems with her peer group or any socially
inappropriate behavior. (Id.). Her physical
examination was also normal. (R. 369-70). As with each of the
other records from Dr. Aziz's office, this one states
under “Function”: “No physical disability
and activities of daily living were normal.” (R. 368).
PA Gillick's “Assessment” was:
“Allergic rhinitis, ” “ADD, ” and
“Crohn's disease of the stomach
Exaccerbation.” (R. 370). This is the first medical
record diagnosing Plaintiff with ADD and it is unclear what,
if any, tests or examinations PA Gillick relied upon in
making this assessment.
Gillick ordered three lab tests (a comprehensive metabolic
panel, “CBC (includes diff/plt)” and “Sed
Rate by Modified Westergren”). (Id.). She also
prescribed Vyvanse for 30 days (no refills),  and a longer-term
supply of Apriso. (R. 370). Plaintiff was instructed to
return in one month for a follow-up visit, but waited seven
months (until January 2012) to do so. In the interim,
Plaintiff applied for disability benefits on August 19, 2011.
(R. 131). In a Function Report completed at that
time, Plaintiff wrote that she has to go to the bathroom 6
times per day (once at night), “making it hard to do at
work.” (R. 150-51).
Evaluations In Fall of 2011
Dr. Shah: On October 15, 2011, Mahesh Shah, M.D.
examined Plaintiff for the Bureau of Disability Determination
Services (“DDS”). (R. 290). Dr. Shah noted that
Plaintiff reported suffering from Crohn's disease for the
last 23 years, and that it has been getting progressively
worse. In addition, Plaintiff stated that she experiences
cramping and diarrhea 8 to 10 times a day, but has never had
related fissures or fistulas. (Id.). She also
complained of worsening pain in her hands and knees for about
five years, and neck pain stemming back one-and-a-half years.
Plaintiff told Dr. Shah that she had received a cortisone
shot earlier in the year, which helped her neck pain for a
short period, ...