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Kalinowski v. Colvin

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

November 29, 2016

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


          SIDNEY I. SCHENKIER United States Magistrate Judge.

         In this Social Security appeal, plaintiff Cynthia Kalinowski moves for reversal and remand of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for disabled widow's insurance benefits under 42 U.S.C. § 402(e) (doc. # 11), The Commissioner has filed a cross-motion asking the Court to affirm the decision (doc. # 20). For the reasons set forth below, we grant Ms. Kalinowski's motion and deny the Commissioner's motion, I, Ms. Kalinowski was born on June 19, 1958, making her 45 years old at the time of her husband's death on December 30, 2003 (R. 277, 329). On January 25, 2010, Ms. Kalinowski filed an application for widow's insurance benefits, stating that she became unable to work due to a disabling condition beginning on December 15, 2001 (R. 277-78). In order to be entitled to disabled widow's benefits, Ms. Kalinowski must have established that she had a disability beginning on or before January 31, 2013 (the Commissioner calls this the end of the "prescribed period"), which is seven years after January 1, 2006, the date Ms. Kalinowski was last entitled to survivor's benefits (R. 13). See 42 U.S.C. § 402(e)(4); 20 C.F.R. 404.335(c).

         After her claim was denied initially and on reconsideration, Ms. Kalinowski appeared and testified at a hearing before an Administrative Law Judge ("ALJ") on February 28, 2012 (R. 103-39). The ALJ issued an opinion denying benefits on April 4, 2012 (R. 142-58), but on July 29, 2013, the Appeals Council vacated the decision and remanded the case to the ALJ (R. 159-62). The ALJ obtained additional evidence and held another hearing on October 6, 2014 (R. 63-102).[2]He issued a second written opinion on November 17, 2014, finding Ms. Kalinowski not disabled (R. 9-29). On July 22, 2015, the Appeals Council issued a decision adopting the ALJ's "findings or conclusions regarding whether the claimant is disabled, " but modifying the ALJ's opinion to state Ms. Kalinowski was not under a disability from her alleged onset date through January 31, 2013, the end of the prescribed period (R. 4-5).[3] The ALJ's ruling, as adopted and modified by the Appeals Council, stands as the final decision of the Commissioner. See Murphy v. Colvin, 759 F.3d 811, 815 (7th Cir. 2014), as amended (Aug. 20, 2014), reh'g denied (Oct. 10, 2014).


         The medical record begins on March 13, 2007, when Ms. Kalinowski was admitted to Loretto Hospital after overdosing on Paxil (anti-depressant) and alcohol and attempting to cut her wrist (R. 381-83). Upon discharge two days later, her primary diagnosis was listed as depression, with several secondary diagnoses that included alcohol abuse and personality disorder (R. 381).

         After a gap of almost three years, the evidence in the record picks up again in February 2010, when Ms. Kalinowski completed various function reports for the Bureau of Disability Determination Services ("DDS"). She reported that she lived alone in a house with her dog, and she took care of her personal needs, prepared meals, cleaned, did laundry, drove alone to the store and church, and sometimes babysat her grandchildren (R. 317-21). She had no trouble getting along with people, but she sometimes had trouble leaving home because she felt depressed or panicked (R. 318, 322-23). Ms. Kalinowski's oldest daughter, Connie O'Connor, filled out a function report in February 2010, stating, among other things, that her mother could no longer care for her grandchildren or be social due to panic attacks and depression (R. 309-13). Ms. Kalinowski took medications prescribed by her primary care physician, Saroj Verma, M.D., including Paxil, Xanax (anti-anxiety) and Seroquel (anti-psychotic) (R. 548-53).

         On April 14, 2010, Harley G. Rubens, M.D., completed a psychiatric evaluation of Ms. Kalinowski for DDS. He observed that she "seemed somewhat shaky and clammy, " her "[disposition was generally dramatic, " her mood was "moderately anxious, " and her attention and concentration fluctuated with her anxiety level (R. 510). However, Ms. Kalinowski calmed down quickly during the examination, and she had normal speech, cognition, orientation, memory, general knowledge and judgment (R. 509-11). Dr. Rubens wrote that Ms. Kalinowski "describe[d] an inconsistent picture concerning her anxiety and withdrawal" (R. 511). On May 3, 2010, R. Leon Jackson, Ph.D., completed a psychiatric review technique based on Dr. Ruben's examination. He concluded that Ms. Kalinowski's mental impairments were not severe and caused no more than minimal functional limitations (R. 515-27).

         Ms. Kalinowski began receiving mental health counseling from Metropolitan Family Services ("MFS") in March 2010. At a mental status examination in May 2010, she showed good judgment and impulse control, but she appeared distraught, with a very intense demeanor and anxious and constricted mood (R. 535). An MFS psychiatrist, Nasir Ali Syed, M.D., diagnosed Ms. Kalinowski with major depressive disorder and agoraphobia without panic disorder, and he continued her prescriptions for Paxil, Xanax and Seroquel (Id.). On June 14, 2010, Dr. Verma filled out a medical evaluation stating that Ms. Kalinowski was "extremely depressed and anxious, " with serious limitations in activities of daily living ("ADLs"), social functioning, and concentration persistence or pace, and four or more episodes of decompensation in the previous 12 months (R. 680). In addition, Dr. Verma opined that Ms. Kalinowski had full capacity for all physical activities, except she could not lift more than 10 pounds (Id.).

         Ms. Kalinowski's mental health symptoms fluctuated. From July 2010 through February 2011, she sometimes felt her medications were working well to reduce her panic and depression and improve her sleep, but at other times she was tearful and distraught and reported having trouble sleeping and eating (R. 558-61, 571-72, 863, 867, 1037). On March 3, 2011, Ms. Kalinowski wrote in a function report that her panic attacks, anxiety and depression were getting worse, and that sometimes she did not want to leave the house or get out of bed (R. 332, 335). An MFS note from the same date noted that despite compliance with her medication, Ms. Kalinowski had increased anxiety with some breakthrough panic attacks (R. 567).

         On April 1, 2011, E. Eveline Powers, M.D., another psychiatrist at MFS, completed a mental impairment questionnaire for Ms. Kalinowski (R. 640). After reviewing Ms. Kalinowski's symptoms, including sleep, mood and appetite disturbance, recurrent panic attacks, and feelings of sadness and hopelessness (R. 640, 642), Dr. Powers opined that she had moderate restrictions in ADLs, marked difficulties in maintaining social functioning, and frequent deficiencies of concentration, persistence or pace, which would seriously limit her ability to perform in various work settings (R. 640-42). Dr. Powers noted that Ms. Kalinowski took Paxil, Xanax and Seroquel, but she "remains depressed and has frequent panic attacks" (R. 640-41).

         On May 12, 2011, Kirk Boyenga, M.D., affirmed the May 2010 DDS psychiatric review technique finding Ms. Kalinowski's mental impairments were not severe (R. 644). Dr. Boyenga noted that although Ms. Kalinowski continued to feel irritable, withdrawn and hopeless, a February 2011 assessment from MFS stated that therapy was helping to decrease Ms. Kalinowski's anxiety and allowing her to feel better and socialize more (R. 645). Dr. Boyenga indicated that he had reviewed all of the evidence in the file, but this does not appear to have included Dr. Powers' April 2011 report, because in his explanation of his decision, the latest psychiatric evidence to which Dr. Boyenga referred was dated March 11, 2011 (R. 644-45).

         From June through September 2011, Ms. Kalinowski reported continuing depression at her counseling sessions at MFS (R. 857-58, 570). On September 9, 2011, Dr. Verma's partner, Obaida Shah-Khan, M.D., filled out a physical RFC form that listed Ms. Kalinowski's physical impairments as hypertension, peripheral vascular disease, and poor circulation and pain in her legs (R. 647). He opined that she could only sit/stand for 10 minutes at a time, and less than 2 hours total in a day (R. 647-48). Dr. Shah-Khan wrote that Ms. Kalinowski was significantly limited in reaching and handling and could lift less than 10 pounds only rarely because of dizziness from hypertension (R. 649). Her medications included Norvasc and Prinivil, for high blood pressure and chest pain, and Trental, for poor blood circulation (R. 545).

         On November 7, 2011, Ms. Kalinowski suffered a comminuted fracture (a break into more than two fragments) of the midshaft of her right humerus (the arm bone running from shoulder to elbow) (R. 662-63). Kishan Chand, M.D., manipulated the fracture and applied a long-arm cast (Id.). On December 23, 2011, Ms. Kalinowski still had pain and aches in her arm (R. 732), and Dr. Chand predicted slow healing (R. 663). On January 18, 2012, Dr. Chand applied a new cast (R. 731), and on January 24, 2012, Dr. Chand opined that Ms. Kalinowksi's prognosis was guarded, and he prescribed an orthotic for her upper arm for 6 months (R. 723-24). On February 15, 2012, Dr. Chand noted that the fracture site showed "more healing, " and the pain was regressing (R. 735).

         On January 30, 2012, another MFS psychiatrist, Franchot Givens, M.D., completed a psychiatric evaluation of Ms. Kalinowski, which noted some improvement in her depression and panic attacks with medication (R. 704). However, Ms. Kalinowski reported that she continued to experience depressive and anxiety episodes that were easily triggered without warning, and she was becoming increasingly unable to cope, make decisions or solve basic problems by herself (R. 712, 940, 947-48). She continued to take Seroquel, Paxil and Xanax (R. 710-11).


         On February 28, 2012, Ms. Kalinowski testified at a hearing before the ALJ that she became depressed in 2001 when her mother and grandmother died and her husband's illness worsened (R. 109-10). After her husband passed away, she drank too much, but she stated that she no longer drank more than one glass of wine every two weeks (R. 114). Ms. Kalinowski testified that she did not sleep well, and most days she wants to stay in bed (R. 116, 122, 132). She rarely cleaned the house or did laundry, and she had little appetite, eating only one meal a day or some days not eating at all (R. 116-20). Ms. Kalinowski sometimes drove to the ...

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