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Sikorski, v. Colvin

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

September 29, 2016

SANDRA A. SIKORSKI, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          SHEILA FINNEGAN United States Magistrate Judge

         Plaintiff 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.

         PROCEDURAL HISTORY

         Plaintiff 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).

         In 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.

         FACTUAL BACKGROUND

         Plaintiff 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. 142-145).[1]

         A. Medical and Other History

         1. 2005

         On March 12, 2005, Plaintiff was admitted to Evanston Northwestern Healthcare complaining of abdominal pain and exhibiting acute cholecystitis.[2] (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).

         Based 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).

         The 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).

         2. 2006

         The record contains no information regarding any medical treatment in 2006, and Plaintiff worked full-time for the import/export business that year. (Id.).

         3. 2007

         The 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….”).

         4. 2008 (Gallbladder removal; hernia; knee problem)

         On 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).

         In 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).

         5. 2009

         The 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.” (Id.).[3]

         6. 2010

         In 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 history.

         February 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.).

         On 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).

         Plaintiff 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).[4]

         Plaintiff 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.).

         Plaintiff 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. (Id.).

         The 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.).

         As noted previously, Plaintiff alleges she became “disabled” as of April 1, 2010. (R. 131).

         On May 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.

         October 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).[5] 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.” (Id.).

         Plaintiff 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).

         7. 2011

         March 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).

         At her 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. (Id.).

         On 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 extremities. (Id.).

         Dr. 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.

         June 9, 2011 (Crohn's exacerbation; diarrhea/frequent bowel movements):

         Plaintiff 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).

         On 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.

         PA 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), [6] and a longer-term supply of Apriso.[7] (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).[8] 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).

         Disability Evaluations In Fall of 2011

         1. 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, ...


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