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Olszowka v. Colvin

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

January 3, 2017

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


          Maria Valdez, Magistrate Judge

         This action was brought under 42 U.S.C. § 405(g) to review the final decision of the Commissioner of Social Security denying a claim of Jennifer S. Olszowka for Disability Insurance Benefits. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow, plaintiff's motion for summary judgment [Doc. No. 13] is denied and the Commissioner's cross-motion for summary judgment [Doc. No. 22] is granted.



         In April, 2011, Plaintiff filed a claim for Disability Insurance Benefits, alleging disability since January 1, 2011. (R. 196.) The claim was denied initially and upon reconsideration, after which she timely requested a hearing before an Administrative Law Judge (“ALJ”). On November 29, 2012, Plaintiff, who was represented by counsel, personally appeared and testified before the ALJ. Vocational expert Richard T. Fisher also testified. (R. 75.) At a second hearing on September 12, 2013, the ALJ received additional testimony from Plaintiff, vocational expert Michelle Peters, and medical expert (“ME”) Ronald Semerdjian, M.D. (R. 27.)

         On January 27, 2014, the ALJ denied plaintiff's claim for Disability Insurance Benefits, finding her not disabled under the Social Security Act. The Social Security Administration Appeals Council then denied plaintiff's request for review, leaving the ALJ's decision as the final decision of the Commissioner and, therefore, reviewable by the District Court under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).


         A. Medical Evidence

         Plaintiff has both lupus and fibromyalgia. She was treated by rheumatologist Dr. Arnold Lim beginning in January 2008. (R. 359.) After he moved, she was examined once on February 25, 2010 by another doctor in his original practice, Dr. Sydney Brandwein, M.D. (R. 359-61.) Plaintiff reported generalized pain and being easily tired, and specifically neck, musculoskeletal, and gastrointestinal symptoms. Dr. Brandwein concluded that her lupus and fibromyalgia were currently stable, with symptoms including arthralgias, soft tissue pain and myofascial tenderness, nonrestorative sleep disorder, fatigue, and Raynaud's phenomenon. (R. 361.) Although he recommended a follow-up visit in six months, Plaintiff did not see Dr. Brandwein further because she did not feel comfortable with him. (R. 88, 361.)

         Plaintiff's current treating rheumatologist, Thomas P. Palella, M.D., examined her at least thirteen times between February 2011 and November 2013. (R. 347, 368-74, 390-91, 414, 425, 446-47.) Dr. Palella documented fatigue, soreness, limitations in concentration, and limitations in her abilities to grasp items and to get dressed without assistance. He treated plaintiff's conditions with medications including Prednisone, Plaquenil, and the pain medications Tramadol and oxycodone. (R. 405.) He also recommended that she rest and pace her activities. (R. 387.)

         On August 8, 2011, Scott A. Kale, M.D. performed a consultative exam. (R. 310-18.) Plaintiff reported generalized pain and tenderness, mild “fibro-fog, ” and depression, as well as headaches, sun sensitivity with hair loss, and occasional Raynaud's phenomenon. The primary reason she claimed she could not work was pain and anxiety caused by stress. As for her activities of daily living, Plaintiff advised that she could feed, bathe, dress, and toilet herself, as well as drive a car and take public transportation. In her exam, she was able to perform manual and orthopedic maneuvers without difficulty. (R. 312-13.) Her ranges of motion were normal in all joints except her lumbar spine, where she demonstrated mild limitations. (R. 314-15.) She displayed no redness or swelling in any joints, but she had 18/18 tender points associated with fibromyalgia. (R. 312.) Her neurological and mental status exams were largely normal. (R. 317.) Dr. Kale listed pain and anxiety associated with stress as plaintiff's main mental status issues. (Id.)

         In September 2011, two consulting physicians issued opinions about plaintiff's mental and physical restrictions. First, on September 7, reviewing psychologist Michael E. Cremerius, Ph.D. completed a Psychiatric Review Technique Form (“PRTF”) after reviewing plaintiff's file, including Dr. Kale's report. Dr. Cremerius concluded that, despite her reports of depression, Plaintiff had no medically-determinable mental impairment. (R. 320, 332.) In a Physical RFC Assessment completed September 8, 2011, Ernst Bone, M.D. noted that Plaintiff was diagnosed with fibromyalgia in 2002 and with lupus in 2008, and that she suffers from chronic pain, hypertension, and arthritis. (R. 335, 339.) Based in part on Dr. Kale's exam, Dr. Bone determined that Plaintiff was able to perform the exertional and sit/stand demands of light work, but she was limited to only occasional climbing, balancing, stooping, kneeling, crouching, or crawling due to pain. (R. 335.) He found her statements regarding the physical limitations imposed by her illness to be credible and consistent with the limitations in his RFC assessment. (R. 341.)

         From December 2012 through April 2013 Plaintiff saw Paul A. Marsiglia, D.O, in connection with pain in her neck, shoulder, and head. (R. 405-19.) Dr. Marsiglia prescribed a muscle relaxant, which provided some relief. (R. 406, 412.) A course of aqua therapy was also helpful. (Id.) Dr. Marsiglia also referred Plaintiff to psychologist Timothy R. Tumlin, Ph.D. for a psychological screening examination. (R. 420.)

         On December 19, 2012 and January 9, 2013, Dr. Tumlin evaluated Plaintiff over two appointments, using a clinical interview and various assessments including a Multidimensional Pain Inventory, a Survey of Pain Attitudes, and a Personality Assessment Inventory (“PAI”). (R. 420.) Based on these tests, Dr. Tumlin concluded that Plaintiff “did not exaggerate her difficulties nor did she attempt to portray herself in a more favorable or fault-free light than was true.” (Id.) Plaintiff reported that her pain medications were “pretty good” at relieving her pain but caused some memory impairment. (R. 421.) Her PAI indicated that she was “experiencing a significant degree of depression characterized by affective symptoms such as feelings of sadness and distress” and loss of interest in activities. She also displayed cognitive symptoms of depression “to a lesser but still noteworthy extent.” (R. 422.) Dr. Tumlin opined that plaintiff's “coping” with her pain was “very good, ” and that she “could benefit from further psychological services because she is open to learning new ways to adapt to her pain.” (R. 424.)

         In March 2013, Dr. Palella completed an Attending Physician Statement for plaintiff's insurer, which included a comprehensive assessment of her physical capabilities. (R. 433-34.) The report states that while Plaintiff could lift up to twenty pounds occasionally and ten pounds frequently, she was able to sit, stand, and walk just one hour each per day, intermittently. She could not climb, twist, bend, stoop, reach above shoulder level, or perform repetitive fine finger movements. He found that she had a moderate limitation in psychological function, with an ability to tolerate “only limited stress situations in only limited personal relations.” (R. 434.) Dr. Palella attributed plaintiff's work restrictions to “extreme fatigue” and “restricted physical mobility due to pain and inflammation, ” and “decreased judgment due to prescribed narcotic pain medication.” (Id.) He suggested that Plaintiff could benefit from physical therapy. (Id.)

         B. plaintiff's Testimony

         In June 2011, Plaintiff submitted a written report[1] describing her illness and level of function. (R. 239-51.) She indicated that she is able to make breakfast and lunch in the morning but then goes back to bed. (R. 244.) She wakes up numerous times per night due to pain and has impaired memory. (R. 244, 250.) She is able to do the dishes daily and laundry weekly, along with some ironing and vacuuming, and she goes grocery shopping weekly. (R. 245-47.) She has difficulty holding a pen for long periods of time, and too much physical activity causes pain that can endure for a week. (R. 247-48, 250.)

         Plaintiff's husband also submitted a report in June 2011 in which he indicated that Plaintiff suffered from extreme fatigue, muscle aches and pains, and nausea. (R. 229.) Plaintiff was able to perform some housework, prepared meals four to seven times a week, and went out two to three times a week including grocery shopping; however, some days were “lost” due to nausea. (R. 230-31, 233.) She slept poorly and had impaired memory and concentration, as well as reduced motor skills in her hands. (R. 230, 232, 234.) Sunlight and stress triggered her condition. (R. 236.)

         In an October 2011 follow-up report, Plaintiff indicated that she had increased pain in her arms, hands, and neck, and she was experiencing more migraines. (R. 272.) She had a harder ...

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