Ponce v. Astrue
Filing
25
MEMORANDUM Opinion and Order Signed by the Honorable Arlander Keys on 5/22/2014. Mailed notice(tlp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SHELLEY A PONCE,
Plaintiff,
v.
CAROLYN W COLVIN, Acting
Commissioner of Social Security,
Defendant,
)
)
)
)
)
)
)
)
)
)
Case No. 1:12-cv-06931
The Honorable Arlander Keys
MEMORANDUM OPINION AND ORDER
This case is before the Court on Plaintiff Shelley Ponce’s
motion for summary judgment. She seeks a remand or an outright
reversal of the Commissioner’s decision to deny her application
for
Disability
Insurance
Benefits
Income before September 17, 2009.
below,
Ms.
Ponce’s
motion
is
and
Supplemental
Security
For the reasons set forth
denied
and
the
Commissioner's
motion for summary judgment is granted.
BACKGROUND & PROCEDURAL HISTORY
On December 7, 2006, Plaintiff Shelly Ponce applied for
Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”).
(R. 107.)
Ms. Ponce alleged that she became
disabled as of August 1, 2000, due to a series of health issues
including severe back pain, bladder problems, bursting appendix,
high blood pressure, cholesterol, limited use of her hands, and
pain and numbness on the right side of her body.
(R. 148, 311.)
Ms. Ponce’s application was denied initially on July 27, 2007,
and upon reconsideration on August 24, 2007.
(R. 107.)
Ms.
Ponce requested a hearing before an Administrative Law Judge
(“ALJ”), and the case was assigned to ALJ Arthur Cahn, who held
the
requested
hearing
on
September
2,
2009.
Id.
The
ALJ
partially granted Ms. Ponce’s disability request, holding that
Ms. Ponce was disabled as of October 27, 2007, but not before.
(R. 116.)
Ms. Ponce disagreed with the onset date and requested
the Appeals Council’s review of the ALJ’s decision.
On
December
10,
2010,
the
Appeals
Council
(R. 38.)
vacated
decision and remanded the case for further review.
the
Id.
On
review, the Appeals Council directed the ALJ to: (1) further
evaluate
the
rationale;
claimant’s
(2)
give
subjective
further
complaints
consideration
provide
the
to
and
a
claimant’s
maximum residual functional capacity and provide an appropriate
rationale for it with specific record references; and (3) obtain
evidence from a vocational expert about whether the claimant had
any
transferable
determining
skills
whether
from
the
her
past
vocational
relevant
expert’s
work
while
occupational
evidence was in conflict with the Dictionary of Occupational
Titles.
Id.
The case was then assigned to ALJ Patrick Nagle,
and a second hearing took place on October 27, 2011.
November
14,
disabled
as
2011,
of
ALJ
Nagle
September
determined
17,
2
2009,
that
but
Ms.
not
Id.
On
Ponce
was
prior.
The
significance of this finding is that Ms. Ponce was last insured
for disability insurance benefits on September 30, 2005, though
she
qualifies
later date.
for
supplemental
(R. 49-50.)
insurance
benefits
as
of
the
Again, Ms. Ponce requested the Appeals
Council to review the ALJ’s decision, but it was denied on May
25, 2012.
(R. 5, 32.)
ALJ HEARING
At the hearing before ALJ Nagle, Ms. Ponce appeared, and
was represented by counsel.
(R. 70.)
Ms. Ponce testified that
she was born on September 18, 1954, and lives with her two sons,
daughter in law, two grandchildren and husband.
(R. 81-82, 273-
74.)
With
regard
to
Ms.
Ponce’s
work
history,
Ms.
Ponce
testified to the following: She worked in a warehouse as a line
supervisor at Midwestco Enterprises for thirty years.
304.)
(R. 82,
She would measure, perform quality control inspections,
and check transformers on the trucks.
vary between standing and sitting.
(R. 83).
Id.
The work would
She would also lift
between ten to seventy-five pounds on a regular basis, and if
she “pulled a truck it could go up to about four hundred to five
hundred
pounds.”
working
there
Id.
because
Ms.
her
Ponce
body
testified
was
breaking
that
she
down.
stopped
Id.
She
further stated that the pain started in her arms, and she felt
3
splinters in her feet, which lead to her having surgery on her
right foot. Id.
Ms. Ponce testified to the following: Beginning in 2008,
she had a number of surgeries.
(R. 75.)
she had a cervical back fusion.
Id.
In February of 2008,
Then in 2010, she had
another surgery on her C6 and C7 vertebrae and a subsequent
surgery in September of 2011 on her C3, C4 vertebrae all the way
down to C1 to C2.
She
(R. 76.)
testified
that,
since
2000,
she
was
progressively
losing control of her hand, and if she held something, she would
not be aware if she lost it.
Id.
She also testified that
because of her legs, she would lose her balance, or she would
feel like a thousand needles were going up her right side and
that these symptoms progressed with time.
Id.
She would lose
things often and could not control a toothbrush or comb her
hair.
Id.
Due to the pressure in her leg, she was not able to
pick herself up if she bent down to pick up anything.
Ponce
testified
that,
during
the
eight
years
Id.
Ms.
to
her
prior
surgery, the physicians she sought treatment from continuously
stated that she had perhaps pulled a muscle, but they could not
pinpoint the exact problem.
(R. 77.)
She testified that the
physicians decided to perform surgery because she fell multiple
times,
her
feet
would
tingle,
she
experienced
sharp
pains
oscillating on her right side, the back of her neck was starting
4
to hurt immensely, and she was not able to get out of bed.
Id.
At the time she took pain medication, however, the physicians
insisted that she not continue doing so, in order for them to
pinpoint
the
cause
of
her
symptoms.
Id.
Ms.
Ponce
also
testified that she had carpal tunnel, but did not have surgery.
Id.
She testified that after her back surgery in 2010, her
hands worsened and that, after the subsequent surgery in 2011,
she was not able to move her right hand or raise her right arm.
(R. 77-78,
88.)
She
testified
that
approximately
two
years
lapsed between her first and second surgery, but the pain did
not subside.
(R. 78-79.)
She described feeling as though a
thousand needles were punching her in the arm all the way down
to her feet and in one instance, prior to her second surgery,
her arm froze in place, for which she sought immediate treatment
at an emergency facility. Id.
Ms.
Ponce
then
testified
to
the
tasks
she
was
able
to
perform in 2000, that she was no longer able to perform in 2005.
(R.
79.)
difficulty,
and
eventually an inability, to fold a towel or brush her hair.
(R.
79, 84.)
During
this
she
developed
She would mistake planting her leg down because she
had no control of it.
2010.
time,
(R. 79-80.)
Id.
Her symptoms worsened from 2005-
She testified that the pain got sharper, and
it started to move to the left side, and her left palm and the
outside of her fingers would get cold and numb.
5
(R. 80.)
These
symptoms began after her second surgery.
Id.
She testified
that, before her second surgery, she could walk a distance of
three to four houses before feeling pain, but after the surgery
the pain worsened and she could only go across from the living
room to the back. Id.
With regard to daily life, she testified
that she does not cook and has not done so since 2000.
81.)
She does not do any housework.
Id.
(R. 80-
In October of 2011,
she only left the house once, and that was to attend the ALJ
hearing, however, in 2006 or 2007, she would leave the house
twice a week to get fresh air.
(R. 81.)
She would take rides
with her husband to pick up groceries, but would not get out of
the car because of the pain in her legs.
did
not
attend
any
of
her
son’s
or
Id.
Furthermore, she
grandchildren’s
school
activities. Id.
Ms. Ponce testified that in 2002, she started seeing Dr.
Cohen because she had pain “from her buttocks to the back of her
shoulder.”
(R. 83.)
She experienced shooting pain in her right
arm, and it intensified as time went on.
(R. 84.)
In September
of 2005, and prior, she experienced sharp pain in her leg; her
leg would not settle down, it continuously flinched. Id.
this
time,
she
had
difficulty
pushing
buttons.
Id.
During
She
experienced difficulty tying her shoes, so her family purchased
her
slip-on
shoes.
Id.
Prior
to
2005,
she
used
a
walker
because her right leg would fold up without notice, causing her
6
to fall to her knees.
(R. 85.)
Her right leg felt weak, and
she was unable to tell if it was facing forward or backwards,
often times resulting in her falling.
Id.
She testified that she stopped driving in 2000, because of
leg cramps and her inability to get in and out of the car due to
her legs falling asleep.
(R. 85-86.)
When she climbed stairs,
she had pain in her buttocks, and if she sat too long she felt
pressure around her neck.
(R. 86.)
During this time, she
would get aggravated, feel depressed, and start crying.
Id.
She would take aspirin and stay at home five or six hours.
Id.
She was not able to kneel down because she was not able to get
back up.
Id.
In 2004, she was unable to lift much with her
right hand because it would shake; she was not able to pour a
cup of coffee or a gallon of milk.
difficulty
eating
because
the
(R. 87.)
oscillation
caused her arm to tighten. Id.
She experienced
was
tiring
and
it
She testified that she was also
unable to cut meat or use a fork with her right hand, and that
it was easier to use a spoon because it would hurt her arm to
poke.
(R. 88.)
She also testified that her fingers would swell
periodically. Id.
She was taking four or five medications for
pain, such as Lipitor, and some muscle relaxants. Id.
formerly
taken
Wellbutrin.
Prozac
for
depression,
Id.
7
but
had
She had
switched
to
VOCATIONAL EXPERT TESTIMONY
The
ALJ
also
heard
testimony
from
Terry
Seaver,
a
Vocational Expert, who had reviewed Ms. Ponce’s prior work and
vocational background.
(R. 90.)
Ms. Ponce’s testimony.
prior
employment
supervisor,
a
Id.
consisted
job
with
Ms. Seaver was present during
She testified that Ms. Ponce’s
of
working
medium
as
physical
a
quality
demand.
control
Id.
She
testified that there were no transferrable skills from that job
to a light range position.
Id.
Ms. Seaver determined that a
hypothetical individual who is closely approaching advanced age
with a limited 11th grade education, who shares claimant’s past
work experience and is limited to light work, and in addition is
limited to only occasional fingering or feeling with the right
hand, would only be able to perform occupations which required
“less than frequent or far acuity in the local and national
economy.”
(R. 91.)
Ms. Seaver determined that the hypothetical
person could perform the following jobs: information clerk, DOT
237.367-018, which had four thousand eight hundred jobs in the
local economy; usher, DOT 344.677-014, which had one thousand
jobs in the local economy; hostess, DOT 352.667-010, which had
seven thousand two hundred jobs in the local economy.
Id.
However, Ms. Seaver concluded that sedentary work would be
precluded, even for a hypothetical individual that was younger
in age and not approaching advanced age, because sedentary work
8
would require at least more than occasional fingering with the
bilateral extremities.
(R. 92.)
Ms. Seaver determined that a
hypothetical person who could only occasionally rotate, flex, or
extend their neck, would be precluded from work.
(R. 93.)
MEDICAL RECORD
In
addition
to
the
testimony
of
Ms.
Ponce
and
the
Vocational Expert, the record before the ALJ includes medical
records. However, as pointed out during the ALJ hearing, the
record does not include the medical records of Ms. Ponce that
document her symptoms or ailments between August 2000 to June
2002, because she did not submit them to the Social Security
Administration or the ALJ.
(R. 75.)
PRE-DATE LAST INSURED DATE - Prior to September 30, 2005
On June 10, 2002, Ms. Ponce went to Dr. James Cohen due to
pain
into
her
right
lower
leg,
and
because
occasionally feel like it was going to give out.
her
back
(R. 362.)
would
Dr.
Cohen noted that Ms. Ponce has a history of low back pain, as
she had pain down her right posterior thigh for twenty years.
Id.
On examination, Dr. Cohen noted that Ms. Ponce had good
lumbar range of motion without significant reproduction of her
symptoms, and good range of motion of her hips and knees.
Id.
He also noted that Ms. Ponce’s knee and ankle reflexes were
brisk, EHL testing was normal, sensory exam was normal, pulses
were intact and there was no area of tenderness in her lower
9
legs.
Id.
Dr. Cohen had the impression that Ms. Ponce had some
sciatic-type symptoms, however, he did not obtain x-rays.
Id.
He
and
prescribed
Ms.
Ponce
a
Medrol
Dosepak
and
ibuprofen
advised her to return if her symptoms did not improve.
Id.
On
July 15, 2002, Ms. Ponce went back to Dr. Cohen and complained
that the prescribed Medrol Dosepak and ibuprofen did not ease
her pain.
(R. 361.)
Dr. Cohen obtained an x-ray of her LS
spine, which was normal except for facet arthritis.
Cohen then ordered an MRI.
On
August
3,
2002,
Id.
Dr.
Id.
Ms.
Ponce
had
the
MRI
done
in
the
neurology clinic at ACHN/Fantus Health Center by neurologist Dr.
Richard T. Brannegan.
(R. 386.)
Dr. Brannegan noted that the
exam was unrevealing, that Ms. Ponce tended to give away at
strength testing and that there was no atrophy.
physician
further
noted
that
he
was
unsure
(R. 387.)
if
there
The
was
a
neurologic disease present, and noted that he would get a CT
scan of the brain.
On
October
(R. 386-387.)
23,
2002,
Ms.
Ponce
went
Department of Public Health for a checkup.
to
the
(R. 368.)
medicine physician, Dr. E. Potash, treated her.
Chicago
Internal
(R. 367.)
Dr.
Potash noted that Ms. Ponce had numbness and tingling on her
right side for four to five years, and she experienced rightsided weakness.
Id.
Dr. Potash prescribed Ms. Ponce Naprosyn
and scheduled a follow-up appointment for January 15, 2003.
10
Id.
On January 15, 2003, Ms. Ponce returned to Dr. Potash.
365.)
(R.
She again was experiencing numbness on the right side of
her body.
Id.
Dr. Potash measured her calf muscles, and the
left calf measured at fourteen and three quarter inches and her
right measured at fourteen and one quarter inches, a difference
of a half inch.
Id.
Dr. Potash also noted that Ms. Ponce
limped when walking, and she told him that “she’s always done
this.”
Id.
Dr. Potash noted possible multiple sclerosis or
neurological disease and referred Ms. Ponce to a neurologist.
Id.
On July 18, 2003, Ms. Ponce was again seen at the Chicago
Department of Public Health.
(R. 369.)
She complained that she
had pain in her right and left arms, and that she was not able
to hold objects or fold towels.
Id.
Ms. Ponce indicated that
the Naprosyn helped her headaches, but it did not help with her
arm and leg pain.
Cook County.
On
Id.
She was then referred to Neurology of
Id.
August
8,
2003,
Ms.
Ponce
was
again
seen
in
the
neurology clinic at ACHN/Fantus Healthy Center by neurologist
Dr. Brannegan.
(R. 385.)
Ms. Ponce continued to complain of
right arm and leg pain, as well as weakness.
Id.
She also
continued to express that she felt like needles were poking her
in the arms and legs.
Id.
Dr. Brannegan noted that Ms. Ponce
had trouble with differentiating between sharp vs. dull pain,
vibration sense, and position sense on her right arm and leg.
11
Id.
Dr. Brannegan also indicated that Ms. Ponce’s right side
was weaker than her left side when testing for resistance.
372, 385.)
contrast
and
hemiparesis.
(R.
She had a CT scan of the brain, which showed no
Dr.
Brannegan
diagnosed
Ms.
Ponce
with
chronic
(R. 372)
On October 27, 2003, Ms. Ponce had a CT scan performed by
radiologist Dr. Susan Gilkey, due to the hemiparesis diagnosis.
(R.
384.)
Dr.
Gilkey
noted
that
the
CT
scan
revealed
no
hemorrhage, no mass, edema or midline shift, no hydrocephalus,
no definite infarct identified, and, as a result, Dr. Gilkey was
under the impression that the CT scan was normal.
November
7,
2003,
Dr.
Brannegan
at
the
Id.
ACHN/Fantus
Center again saw Ms. Ponce in the neurology clinic.
On
Healthy
(R. 383.)
Ms. Ponce complained that she was experiencing the same right
side pain and weakness that she had during her previous visits.
Id.
On January 26, 2004, Ms. Ponce had an Electromyogram “EMG”
test performed by Dr. Brannegan.
Id.
He noted that the test
showed no fibrillations or positive sharp waves in muscle sample
and that it was a normal EMG/MCV of the right upper and lower
extremities.
Id.
On June 29, 2004, Ms. Ponce was again seen by Dr. Brannegan
for right arm and leg pain.
(R. 380.)
Dr. Brannegan noted that
there was no clear evidence of neurologic disease and that the
previous
CT
scan
and
EMG
tests
12
were
all
normal.
Id.
Dr.
Brannegan noted that Ms. Ponce’s main complaint was excessive
fatigue, and that he would refer her to general medicine.
Id.
On October 5, 2004, Ms. Ponce complained of a chronic cough and
had a chest x-ray performed.
(R. 378-79.)
that Ms. Ponce did not have pneumonia.
Id.
The x-ray revealed
Radiologist, Dr.
Pamela Sobti, was under the impression that Ms. Ponce may have
had bronchitis.
Id.
On November 2, 2004, Ms. Ponce had a
follow-up visit with Dr. Brannegan.
(R. 377.)
Dr. Brannegan
noted no change, but that he would order a brain MRI to be
performed in six months.
Id.
On April 15, 2005, Ms. Ponce had
a brain MRI, which was read by radiologist, Dr. Osbert Egiebor.
Id.
The MRI showed that there was mild diffuse cerebral and
cerebellar atrophy.
parietal,
occipital
Id.
and
There was also bilateral, frontal,
temporal
cerebral
moderate left nasal septum deviation.
no
intracranial
hemorrhage
or
Id.
abnormal
white
matter,
and
However, there was
extra-axial
fluid
collection, and the ventricular system and basal cisterns were
unremarkable.
Id.
with Dr. Brannegan.
On July 22, 2005, Ms. Ponce had a follow-up
(R. 373.)
Dr. Brannegan noted that Ms.
Ponce was continuing to suffer from the same symptoms, and that
her symptoms were probably not caused by a stroke.
Brannegan advised Ms. Ponce to quit smoking.
13
Id.
Id.
Dr.
POST-DATE LAST INSURED - After September 30, 2005
On October 5, 2006, Ms. Ponce had a mammography screening
examination,
asymmetry.
which
showed
(R. 441.)
dense
breast
parenchyma,
with
mild
There was an area of concern that showed
a small obscured module.
Id.
Ms. Ponce was scheduled for a
follow-up appointment and returned on October 18, 2006.
(R.
442.)
had
On
October
18,
ultrasounds performed.
2006,
Id.
Ms.
Ponce
April
10,
2007,
and
It was noted that the module had
benign mammographic and sonographic features.
On
returned
Ms.
Ponce
Id.
complained
to
internal
medicine physician, Dr. Erenee Sirinian, D.O. about extreme back
and right side pain.
Id.
(R. 417-18.)
Dr. Sirinian ordered an MRI.
Ms. Ponce had an MRI of her lumbosacral spine performed by
radiologist Dr. Jasna Svarc.
Id.
The results of the MRI showed
that there was mottled bone marrow with signal intensity that
suggested subtle patchy osteoporotic change.
Id.
The conus
medullaris was seen at L1, L5, and S1 revealing left central
disc protrusion with annual disruption encroaching the left SI
nerve root.
Id.
Radiologist, Dr. Tae Woo Kim noted that Ms.
Ponce suffered from mild lumbosacral spondylosis, subtle patchy
osteoporotic bones, and left central disc protrusion at L5-S1,
resulting in mild lateral recess stenosis.
Id.
On April 23,
2007, on a subsequent follow-up with Dr. Sirinian, Ms. Ponce
continued to complain of back pain.
14
(R. 414.)
Dr. Sirinian
discussed several options for treatment.
Id.
On July 23, 2007,
Ms. Ponce went to Dr. Sirinian for a follow-up concerning her
back
pain,
elevated
and
blood
again
four
days
pressure.
(R.
later
on
412-13.)
July
Due
27,
to
2007
Ms.
for
Ponce’s
hypertension, on August 9, 2007, she had a myoview myocardial
perfusion study.
have
ischemia
(R. 410.)
because
The exam revealed that she did not
there
was
no
significant
reversible
changes present to suggest ischemis, and no significant left
ventiricular
dilatation
occurred
with
main or triple vessel disease.
stress
Id.
to
suggest
left
On September 5, 2007,
October 8, 2007, and October 28, 2007, Ms. Ponce had follow-up
visits
with
Dr.
Sirinian.
(R.
406-09.)
She
complain of back pain and right side weakness.
On
October
11,
2007,
Ms.
Ponce
performed by Dr. Brenee Sirinian.
that
the
MRI
punctate
showed
white
appearance
was
matter
Ms.
suggestive
arteriosclerosis or migraine.
another
brain
a
the
centrum
ovale,
chronic
small
of
Id.
MRI
Dr. Sirinian noted
had
of
to
Id.
(R. 435.)
Ponce
foci
had
continued
mild
degree
of
small
and
the
vessel
Dr. Sirinian also indicated
that there was no conspicuous acute ischemic insult or space
occupying lesion.
On
January
Id.
7,
2008,
neurosurgeon
Dr.
Sheldon
Lazar
performed another MRI on Ms. Ponce’s cervical spine due to her
right-side neck pain that extended to her right arm.
15
(R. 473.)
The MRI revealed suspicious bone marrow with signal intensity
for
subtle
stenosis.
and
patchy
osteoporotic
(R. 472.)
small
change
and
right
foraminal
It also revealed end plate irregularity
osteophytosis,
as
well
as
C5-C6
minimal
retrolisthesis, disk degeneration, and substantial right central
disc extrusion compressing the spinal cord.
Lazar
recommended
that
Ms.
Ponce
have
(R. 472-73.)
a
level
one
Dr.
anterior
cervical disc/osteophyte removal and fusion at C5-C6 in order to
decompress her spinal canal.
(R. 479.)
Dr. Lazar performed the surgery.
On February 7, 2008,
(R. 482.)
On February 26, 2008, post surgery, Dr. Lazar reported to
Dr.
Sirinian
that
Ms.
functioning better.
Ponce
felt
(R. 480.)
that
her
right
leg
was
Dr. Lazar also reported that Ms.
Ponce was having bilateral arm pain after the surgery, but that
it was resolving and that a neurological examination revealed
Ms.
Ponce
surgery.
had
Id.
right-sided
On
weakness,
April
14,
which
she
Ms.
Ponce
2008,
emergency room complaining of chest pain.
results
came
back
clear,
and
clubbing, cyanosis or edema.
few hours and then discharged.
followed up with Dr. Lazar.
it
was
(R. 561.)
Id.
had
prior
went
(R. 560.)
noted
that
she
to
to
the
Her test
had
no
She was evaluated for a
On June 17, 2008, Ms. Ponce
(R. 463.)
She reported that she
had minimal pain in her right upper extremity and that it was
not comparable to the pain she experienced after surgery.
16
Id.
Dr. Lazar noted that Ms. Ponce’s right leg was still a problem
and was weaker than her left, however, the numbness that she had
in both hands was better.
Id.
On August 8, 2008, Ms. Ponce had
a stress echocardiogram revealing that she had negative stress
echo for ischemia.
(R. 553.)
On March 25, 2009, Dr. Lazar again evaluated Ms. Ponce.
(R. 462.)
She complained of pain on the left side of her neck
and lancinating pains in her left upper extremity.
Id.
Dr.
Lazar ordered an MRI, which he performed on April 1, 2009 and
April 20, 2009.
the
chronic
The April 1, 2009 MRI revealed a mild degree of
white
arteriosclerosis.
matter
(R.
462,
ischemia
460.)
The
from
small
April
20,
vessel
2009
MRI
revealed a mild degenerative disc disease, disc bulging, and a
small central disc protrusion at L5/S1.
(R. 456.)
Dr. Lazar
noted that the bulging disc does not cause significant central
canal or foraminal stenosis, but may gently impress upon the S1
nerve roots within the lateral recesses.
(R. 456-57.)
Dr.
Lazar indicated to Dr. Remesz that Ms. Ponce did not have a
surgical problem.
(R. 455.)
He indicated that she should lose
weight, perform back exercises, and attend Pilates on a regular
basis.
had
Id.
epidural
Ms. Ponce continued to have back pain issues.
steroid
injections
in
her
back
on
December
She
29,
2009, January 26, 2010, February 9, 2010, and June 10, 2010.
(R. 488-99.)
17
On February 23, 2010, Ms. Ponce saw anesthesiologist Dr.
Xiaoyuan Xie.
pain.
(R. 502.)
Id.
Dr.
Xie
She complained of continuing back
directed
that
Ms.
Ponce
increase
her
medication intake of Gabapentin for a few weeks to see if the
pain would subside before he would give her an epidural steroid
injection.
Id.
On September 21, 2010, Ms. Ponce went to the
emergency room complaining of severe neck and right arm pain.
(R. 554.)
(R.
Ms. Ponce’s tests and blood work came back normal.
559.)
She
was
monitored
for
a
few
hours,
prescribed
medication and discharged with instructions to return if pain
worsened and to follow up with her primary care physician.
554.)
(R.
On October 6, 2010, Dr. Lazar performed cervical disk
surgery on Ms. Ponce’s C6-C7 vertebrae.
(R. 543-44.)
After the
surgery, on October 26, 2010, Ms. Ponce was evaluated by Dr.
Lazar.
Ponce
(R. 542.)
reported
Dr. Lazar indicated to Dr. Younan that Ms.
significantly
less
pain
in
her
right
upper
extremity and less numbness in her hand, although she still had
numbness of her thumb and first two fingers.
Id.
Ms. Ponce
still had pain in her shoulder when moving it, and Dr. Lazar
prescribed physical therapy three times a week for eight weeks.
Id.
On February 9, 2011, Ms. Ponce returned to see Dr. Lazar
and had an MRI.
(R. 533.)
“mild
a
change
of
small
The MRI revealed that there was
punctate
18
nonspecific
white
matter
abnormal
foci
in
revealed
small
vessel
migraine etc.
change
and
cerebral
Id.
no
arteriosclerosis
evidence
hemorrhage.
Younan
Ms.
problem.
Ponce
(R. 535.)
Id.
with
The
MRI
possibly
also
severe
However, there was no significant interval
intracranial
that
hemispheres.”
of
a
Id.
once
recent
Dr.
again
ischemic
Lazar
did
not
insult
indicated
have
a
to
or
Dr.
surgical
However, because of Ms. Ponce’s continued
complaints of pain, he would order a CT scan of Ms. Ponce’s
cervical spine to check the fusion, as well as an MRI of her
brain.
Id.
The CT scan revealed mild cervical spondylosis with
disc degeneration.
fusion
across
the
(R. 538.)
disc
The CT scan also revealed bony
space
at
the
C5-C6,
and
substantial
retrolisthesis of C5 on C6, that produced mild spinal stenosis.
(R. 539.)
567).
On April 28, 2011, Ms. Ponce saw Dr. Remesz.
She complained of right arm tingling and numbness that
had been persistent since her last cervical fusion in 2010.
567.)
(R.
She
was
prescribed
follow-up with Dr. Lazar.
pain
Id.
medication
and
was
told
(R.
to
On May 20, 2011, Ms. Ponce had
an x-ray performed by Dr. Ellyn Feinzimer.
revealed postoperative changes at C6-C7.
(R. 537.)
The x-ray
Id.
On June 9, 2011, Ms. Ponce continued to complain of back
pain.
(R. 663.)
Dr. Daniel Laich ordered a CT scan of the
lumbosacral spine and myelogram.
Id.
lumbosacral
retrolistheiss
spondylosis,
minimal
19
The CT scan showed mild
of
L4
and
L5
with bulging disc, and poorly opacified right nerve root.
663.)
(R.
Also, mild central canal and bilateral foraminal stenosis
was not ruled out.
Id.
A few weeks later on June 27, 2011, due
to Ms. Ponce’s complaints of having numbness and pain in her
fingers,
hands,
right
arm
and
Glassenberg performed an EMG.
there
was
electrical
radiculopathy.
Id.
her follow-up exam.
lower
extremities,
(R. 622.)
evidence
for
a
Dr.
Myron
The EMG revealed that
chronic
right
C5,
C6
Four days after Ms. Ponce saw Dr. Laich for
(R. 764.)
Dr. Laich noted that Ms. Ponce
still had right upper extremity pain radiating to her fingers,
right
lower
extremity
radiculopathy
to
top
of
foot,
lumbar
degenerative disc disease L5-S1, L4-L5 greater than L3-L4.
766-67.)
(R.
Dr. Laich also noted that Ms. Ponce indicated that she
was still falling and losing control in her hand, and that it
had
worsened
after
her
2010
surgery.
Id.
Because
of
Ms.
Ponce’s continuous complaints of pain, on September 26, 2011,
Dr.
Laich
performed
posterior C3-T2.
a
third
(R. 784-86.)
cervical
spine
surgery
on
the
Two days later on September 28,
2011 Dr. Laich completed a follow-up and counseled Ms. Ponce on
her diet.
(R. 789.)
STATE CONSULTING PHYSICIANS
On February 6, 2007, internal medicine physician Dr. Liana
Palacci, D.O. completed a Consultative Examination Report.
20
(R.
388-391.)
Dr. Palacci noted that Ms. Ponce’s cervical spine
range of motion was normal.
Id.
Ms. Ponce’s range of motion of
the shoulder, elbows, wrists, knees, ankles, hips, and lumbar
spine
range
bilaterally.
was
normal
Id.
and
she
had
grip
strength
of
5/5
She was able to squat down, stand heel-and-
toe, bear weight, and her gait was non-antalgic.
Id.
Dr.
Palacci noted that Ms. Ponce did not need an assistive device to
ambulate. Id.
Romberg
test
Dr. Palacci further noted that the Cerebellar and
were
both
negative.
Id.
Ms.
Ponce
revealed
decreased sensation in light touch and pinprick of the right
hand; she had strength of 5/5 in all extremities.
Id.
However,
Ms. Ponce did have positive Phalen and Tinel sign of the right
hand at the median nerve.
that
Ms.
Ponce
had
poorly
Id.
Dr. Palacci’s impression was
controlled
hypertension,
probable
carpal tunnel syndrome affecting the right hand, and that Ms.
Ponce’s complaints of lower back pain had no objective findings.
(R. 391.)
On February 26, 2007, Dr. Henry Bernet completed a Physical
Residual
Functional
Capacity
Assessment.
(R.
392-99.)
Dr.
Bernet concluded that Ms. Ponce had the ability to occasionally
lift
twenty
pounds,
frequently
lift
ten
pounds,
stand,
sit,
and/or walk with normal breaks for about six hours of an eighthour workday, and had an unlimited ability to push and/or pull.
(R.
393.)
She
could
climb
ladders,
21
ropes,
and
scaffolds
occasionally, and could balance, stoop, kneel, crouch, and crawl
frequently.
(R. 394.)
She had an unlimited handling ability
(gross manipulation) and an unlimited ability to reach in all
directions, including overhead.
(R. 395.)
However, because of
her carpal tunnel syndrome in her right wrist she had limited
fingering (fine manipulation) and feeling (skin receptors).
Id.
Dr. Berne also concluded that Ms. Ponce had limited far and near
acuity,
and
unlimited
depth
vision, and field of vision.
perception,
accommodation,
color
Id.
After reviewing the objective medical evidence on February
28, 2007, Dr. Frank Jiminez for the Illinois Request for Medical
Advice, advised that Ms. Ponce’s claim be denied.
Ms.
Ponce’s
claim
insufficient
was
evidence.
denied
for
Id.
On
failure
to
August
(R. 400.)
cooperate
13,
2007,
or
upon
reconsideration, Dr. Ernst affirmed Dr. Jiminez’s finding and
advised that Ms. Ponce’s claim should be denied.
(R. 403-404.)
ALJ’s DECISION
On November 14, 2011 ALJ Nagle issued a partially favorable
decision.
(R.
34,
50.)
He
determined
that
disabled on September 17, 2009, but not prior.
Ms.
Ponce
was
(R. 49-50.)
The
ALJ based his decision on Ms. Ponce’s age category changing.
(R. 49.)
education,
Ms. Ponce turned fifty-five and because of her age,
and
work
experience
22
a
finding
of
disabled
was
reached.
Id.
The ALJ applied the five-step sequential analysis
as required by the Act, under 20 C.F.R. 416(g).
The ALJ found that, prior to Ms. Ponce’s established onset
date, considering Ms. Ponce’s age, education, work experience,
and residual function capacity, Ms. Ponce was “capable of making
a
successful
adjustment
to
other
work
significant numbers in the national economy.”
that
existed
in
Id.
At step one, the ALJ determined that Ms. Ponce had not
engaged in substantial gainful activity since her alleged onset
date.
(R. 40.)
At step two, the ALJ determined that Ms. Ponce
had severe impairments of carpal tunnel syndrome of the right
hand/wrist, back pain, and obesity.
Id.
The ALJ determined
that those impairments caused more than minimal limitations to
Ms. Ponce’s ability to perform basic work activities.
Id.
The
ALJ also determined that Ms. Ponce had hypertension and high
cholesterol, however, he found that those conditions were not
severe
impairments
because
they
did
not
result
in
more
than
minimal limitations to the Ms. Ponce’s ability to perform basic
work activities.
At
step
Id.
three,
the
ALJ
determined
that
“Ms.
Ponce’s
impairments did not meet Listing 1.04 ‘Disorders of the spine,’
because
no
evidence
arachnoiditis
effectively
of
existed,
as
motor
and
defined
loss
Ms.
in
existed;
Ponce
could
1.00(B)(2)(b).”
23
no
evidence
still
of
ambulate
(R.
41).
Furthermore, the ALJ determined that Ms. Ponce “did not meet
Listing
11.14,
‘Peripheral
neuropathies,’
because
no
evidence
existed of disorganization of motor function as described in
Section 11.04B in spite of prescribed treatment.”
Id.
At step four, the ALJ determined that Ms. Ponce “has the
residual functional capacity to perform light work… except that
she:
can
ramps
or
only
occasionally
stairs;
can
balance,
never
kneel,
stoop,
crawl,
crouch,
or
climb
or
climb
ladders,
ropes, or scaffolds; can only occasionally perform fingering or
feeling with the right hand; and is limited to occupations that
can be performed with less than frequent near acuity and far
acuity.”
The ALJ supported this determination by considering all of
Ms. Ponce’s symptoms, and the extent to which the symptoms can
reasonably be accepted as consistent with the objective medical
evidence and other evidence, based on the requirements of 20 CFR
404.1529 and SSRs 96-4p and 96-7p, as well as opinion evidence
in accordance with the requirements of 20CFR 404.1527 and SSRs
96-2p, 96-5p, 96-6p, and 06-3p.
Ms.
Ponce
bladder
is
alleging
problems,
a
(R. 41.)
“disability
burst
due
appendix,
to
The ALJ noted that
severe
back
pain,
hypertension,
high
cholesterol, and pain and numbness over the right side of her
body.
She claimed limited use of her hands for grasping or
holding objects and claimed diminished strength.”
24
Id.
The ALJ
then explained that, after careful consideration of the evidence
he
found
that,
while
Ms.
Ponce’s
medically
determinable
impairments could reasonably be expected to cause the alleged
symptoms, he found that her claims concerning the intensity,
persistence,
and
limiting
effects
of
the
symptoms
were
not
credible to the extent they were inconsistent with the residual
functional capacity assessment.
(R. 42.)
The ALJ noted that, with regard to Ms. Ponce’s numbness,
weakness,
right
side
pain
fully
and
back
credible
pain,
and
her
he
found
testimony
her
allegations
not
was
exaggerated.
(R. 42.) The ALJ noted that from a musculoskeletal
standpoint and a neurological standpoint, “the claimant was not
so
limited
that
she
could
functional capacity report.”
not
Id.
work
in
accordance
with
the
With regard to Ms. Ponce’s
numbness and weakness, the ALJ noted that Ms. Ponce gave several
inconsistent dates when her symptoms began.
(R. 42-43.)
In
particular, the ALJ outlines that in 2002, Ms. Ponce stated she
had right side numbness and weakness for a couple of years, in
January of 2003, she described having the same symptoms for four
or five years, and in July of 2003 she described having the same
symptoms for seven years. Id.
With
regard,
to
her
severe
back
pain,
joint
pain,
and
carpal tunnel limitations the ALJ found that Ms. Ponce was not
credible.
(R. 43-46.)
Specifically, the ALJ found that “the
25
record shows numerous examinations in which the claimant’s range
of motion, weight bearing and gait, and muscle strength were
adequate to allow her to perform work activity.
relied
heavily
on
state
agency
non-reviewing
Id.
The ALJ
physicans,
Dr.
Bernet and Dr. Bones. (R. 47.) Specifically, the ALJ agreed with
their diagnosis of carpal tunnel and stated that there had been
no evidence presented that contradicted the physicians’ review
of Ms. Ponce.
The
ALJ
Id.
also
noted
the
State
agency
consultative
examination of Dr. Linda Palacci. Dr. Palacci found that Ms.
Ponce’s spinal range of motion was normal in all segments and
all of her joints exhibited normal range of motion.
(R. 45.)
The ALJ also relied on Dr. Palacci’s finding that Ms. Ponce’s
grip strength was normal in all segments, all of her joints
exhibited normal range of motion, and that she had full strength
in
all
extremities.
Id.
With
regard
to
Ms.
Ponce’s
burst
appendix, the ALJ determined that the event was very remote in
time
and
nothing
in
the
record
suggested
that
Ms.
Ponce’s
appendicitis resulted in any residual complications or problems.
(R. 46.)
With regard to Ms. Ponce’s alleged hypertension and
high cholesterol, the ALJ determined that the record did not
support a finding of disability based singly or in combination
with other symptoms.
the
ALJ
determined
Id.
that
With regard to Ms. Ponce’s weight,
she
was
26
mildly
obese,
and
that
her
obesity had not been shown to hamper her ability to perform
basic work activities.
(R.
47.)
Therefore, the ALJ determined
that Ms. Ponce was not disabled within the meaning of the Social
Security Act and was not entitled to benefits prior to September
17, 2009.
Id. at 50.
At step five, the ALJ determined that “prior to September
17,
2009,
the
date
the
claimant’s
age
category
changed,
considering the claimants age, education, work experience, and
residual functional capacity, there were jobs that existed in
significant numbers in the national economy that the claimant
could have performed.” (R. 48.) The ALJ relied on the testimony
of the Vocational Expert, and determined that, given Ms. Ponce’s
age,
education,
work
experience,
and
residual
functional
capacity, there were jobs that existed prior to her onset date
of
September
17,
2009.
Id.
The
VE
listed
the
following
positions: information clerk, DOT 237.367-018, which had four
thousand eight hundred jobs in the local economy; usher, DOT
344.677-014, which had one thousand jobs in the local economy;
hostess, DOT 352.667-010, which had seven thousand two hundred
jobs in the local economy.
(R. 49.)
The ALJ concluded that
“prior to September 17, 2009, a finding of ‘not disabled’ is
therefore appropriate…”
Id.
After the Appeals Council denied review, Ms. Ponce filed a
lawsuit in this Court, seeking review of the Social Security
27
Administrations’ final agency decision regarding her onset date.
The parties consented to proceed before this Court, and the case
was reassigned on October 2, 2012.
The case is now before the
Court on motions for summary judgment.
Ms. Ponce asks the Court
to reverse the Commissioner’s decision of her onset date, or to
remand the matter for further proceedings.
Defendant responds,
requesting that the Court grant summary judgment in its favor.
STANDARD OF DISABILITY ADJUDICATION
An individual claiming a need for DBI or SSI must prove
that
she
has
a
disability
under
the
terms
of
the
SSA.
In
determining whether an individual is eligible for benefits, the
social
security
analysis.
regulations
First,
the
ALJ
require
must
a
sequential
determine
if
the
five-step
claimant
is
currently employed; second, a determination must be made as to
whether the claimant has a severe impairment; third, the ALJ
must determine if the impairment meets or equals one of the
impairments listed by the Commissioner in 20 C.F.R. Part 404,
Subpart
P,
claimant's
Appendix
RFC,
1;
and
fourth,
must
the
evaluate
ALJ
must
whether
determine
the
the
claimant
can
perform her past relevant work; and fifth, the ALJ must decide
whether
national
the
economy.
Cir.1995).
burden
claimant
of
is
capable
Knight
v.
of
Chater,
performing
55
F.3d
work
309,
in
313
the
(7th
At steps one through four, the claimant bears the
proof;
at
step
five,
28
the
burden
shifts
to
the
Commissioner.
Id.
A district court reviewing an ALJ's decision must affirm if
the decision is supported by substantial evidence and is free
from legal error.
42 U.S.C. § 405(g); Steele v. Barnhart, 290
F.3d 936, 940 (7th Cir.2002).
Substantial evidence is “more
than a mere scintilla”; rather, it is “such relevant evidence as
a
reasonable
mind
might
accept
as
adequate
to
support
a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct.
1420, 28 L.Ed.2d 842 (1971).
substantial
judgment
by
evidence,
the
In reviewing an ALJ's decision for
Court
reconsidering
credibility determinations.”
may
facts
not
or
“displace
evidence
the
or
ALJ's
making
Skinner v. Astrue, 478 F.3d 836,
841 (7th Cir.2007) (citing Jens v. Barnhart, 347 F.3d 209, 212
(7th Cir.2003)).
Where conflicting evidence allows reasonable
minds to differ, the responsibility for determining whether a
claimant
courts.
is
disabled
falls
upon
the
Commissioner,
not
the
Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir.1990).
An ALJ must articulate his analysis by building an accurate
and logical bridge from the evidence to his conclusions, so that
the Court may afford the claimant meaningful review of the SSA's
ultimate findings. Steele, 290 F.3d at 941. It is not enough
that the record contains evidence to support the ALJ's decision;
if the ALJ does not rationally articulate the grounds for that
decision, or if the decision is not sufficiently articulated, so
29
as to prevent meaningful review, the Court must remand.
Id.
DISCUSSION
Ms. Ponce argues that the ALJ’s decision should be reversed
or remanded, because the ALJ erred in three main ways.
Ms.
Ponce
argues
that
the
ALJ
erred
analyze her ability to stand and walk.
11.
by
failing
to
First,
properly
Pl. Mot. S.J. at. pp. 7-
Second, Ms. Ponce asserts that the ALJ erred in evaluating
her credibility.
Id. at 11-14.
Third, Ms. Ponce argues that
the ALJ erred in assessing her RFC to perform light work. Id.
at
14.
Specifically,
Ms.
Ponce
argues
that
the
ALJ
did
not
include a discussion about her fatigue or neck limitations in
the opinion. Id. at 14-15.
THE ALJ’S REVIEW OF RIGHT LOWER EXTREMITY LIMITATIONS
Ms. Ponce argues that the ALJ erred by failing to properly
analyze her ability to stand and walk, and argues that, in doing
so, the ALJ did not properly assess her limitations in working.
Pl. Mot. S.J. at pp. 7-11.
In particular, Ms. Ponce argues that
the ALJ failed to correlate the medical evidence provided, which
showed
that
she
had
significant
right
lower
extremity
limitations, to his conclusion that Ms. Ponce could perform jobs
that required her to stand or walk the entire workday.
10.
Id. at
Ms. Ponce argues that she consistently reported that she
had numbness in her lower extremities, especially on her right
side, which restricted her activities in standing, walking, and
30
maintaining her balance.
Id.
Ms. Ponce also argues that, prior
to her date last insured, she had right calf atrophy, a slight
right
limp,
findings
decreased
that
the
sensation
ALJ
and
failed
other
to
objective
properly
medical
assess.
Id.
Furthermore, she argues that the opinions of the state agency
non-examining reviewing physicians, Dr. Bernet and Dr. Bone, do
not mitigate the ALJ’s failure to assess her limitations because
nearly four hundred pages of additional medical evidence was
placed into the record after their reviews.
Id.
In response, the Commissioner argues that the ALJ did not
err in assessing Ms. Ponce’s activities in standing, walking,
and
maintaining
her
balance.
Def.
Resp.
at
p.
3.
The
Commissioner argues that the ALJ was thorough in his assessment
and
that
Ms.
Ponce’s
argument
is
“nothing
more
than
disagreement with how the ALJ weighed the evidence.” Id.
particular,
the
commissioner
argues
that
the
ALJ
took
a
In
into
account all of the evidence in the record and details over five
pages of Ms. Ponce’s medical history beginning in June 2002.
Id.
The commissioner also argues that the ALJ not only detailed
Ms. Ponce’s medical history from 2002 but that he also discussed
the
findings
of
Dr.
Lina
Palacci,
a
consultative
medical
examiner who found Ms. Ponce to have “normal range of motion in
her spine and joints and full leg strength.”
31
Id. at 6.
The
Commissioner further argues that the ALJ gave great weight to
the opinions of state agency reviewing physicians Dr. Bernet and
Dr. Bone that opined that Ms. Ponce could “perform light work
with additional limitations that she could frequently balance,
stoop, kneel, crouch, crawl, or climb stairs or ramps … perform
limited fingering and feeling with her right hand…” and only
diagnosed Ms. Ponce with carpal tunnel. Id. at. 7.
Furthermore, the Commissioner argues that the ALJ did not
err
by
failing
to
discuss
Ms.
Ponce’s
fatigue
and
neck
limitations, and argues that an ALJ is not required to discuss
every
symptom
or
complaint
in
the
record.
Id.
at
8.
The
Commissioner then argues that the neck and fatigue issues were
minimal and arose in December of 2007, well after Ms. Ponce’s
date
last
insured,
and
argues
significant neck pain in 2008.
Commissioner
argues
that
Ms.
that
Ms.
Ponce
Id. at 9.
Ponce
has
even
denied
Furthermore, the
not
identified
any
contradictory opinion evidence in the new 400 pages of medical
records that “might reasonably impact the reviewing physicians’
2007
opinions
regarding
Plaintiff’s
limitations
prior
to
her
date last insured” and that her “vague statement that ‘400 pages
of medical records came in after those opinions’ is not enough …
to demonstrate that the ALJ abused his discretion.”
Id.
The ALJ is not required to address every piece of evidence
or
testimony
presented,
but
must
32
provide
a
“logical
bridge”
between the evidence and his conclusions. Terry v. Astrue, 580
F.3d 471, 475 (7th Cir. 2009) (citing Clifford v. Apfel, 227
F.3d 863, 872 (7th Cir.2000)).
The ALJ stated that he carefully
considered the entire record.
(R. 41.)
assessing
extremities,
Ms.
Ponce’s
lower
With regard to the ALJ
fatigue,
and
neck
limitations, the ALJ determined that Ms. Ponce could perform
light
work
with
occasional
limitations
such
as
stooping, crouching, or climbing ramps or stairs.
balancing,
Id.
The ALJ
determined that Ms. Ponce could never kneel, crawl, or climb
ladders, ropes or scaffolds and could only occasionally perform
fingering or feeling with the right hand.
the
objective
medical
evidence,
complaints of Ms. Ponce.
as
Id.
well
Id. at 41.
The ALJ reviewed
as
the
subjective
The ALJ detailed Ms.
Ponce’s symptoms, complaints, and the objective medical evidence
beginning in 2002.
complaints
appendix
Id. at 42.
including,
and
right
obesity.
Id.
He assessed all of Ms. Ponce’s
lower
at
extremity,
42-47.
Out
back,
of
all
burst
of
the
objective evidence presented, the ALJ noted that he gave great
weight to the opinion evidence of state agency consultants Dr.
Bernet and Dr. Bone, and that Ms. Ponce could perform light work
in
2007.
objective
Id.
at
findings
47.
The
supported
ALJ
their
stated
that
conclusion
the
that
myriad
Ms.
of
Ponce
could perform light work and that no treating source opinion
exists contradicting them.
Id.
33
The
Court
mentioning
and
finds
that
assessing
2002 through 2010.
the
the
ALJ
was
objective
very
medical
thorough
evidence
in
from
Although Ms. Ponce might not agree with the
conclusion reached, there is no indication that the ALJ failed
to properly build a logical bridge to his conclusion that Ms.
Ponce
was
not
disabled
prior
to
September
17,
2009.
Furthermore, even with the 400 pages of medical evidence being
submitted after the reviews of Dr. Bernet and Dr. Bones, the ALJ
found that this medical evidence still did not contradict their
findings that Ms. Ponce could perform light work.
Therefore,
the ALJ did not err in assessing Ms. Ponce’s lower extremity
limitations.
The ALJ did not specifically address Ms. Ponce’s
fatigue or neck pain prior to her last date insured and how it
would have affected her ability to perform light work.
However,
the ALJ is not required to address every piece of evidence in
the record.
McFadden v. Astrue, 465 F. App'x 557, 559 (7th Cir.
2012).
THE ALJ’S CREDIBILITY DETERMINATION
Next, Ms. Ponce asserts that the ALJ erred in evaluating
her credibility in four ways.
ALJ’s
credibility
analysis
First, Ms. Ponce argues that the
largely
consists
of
boilerplate
language “are not credible to the extent they are inconsistent
with the residual functional capacity assessment,” and that such
language is frowned upon by the Seventh Circuit. Pl. Mot. S.J.
34
at
p.
11.
Second,
Ms.
Ponce
argues
that
the
ALJ
erred
disregarding her subjective complaints of disabling pain.
Ms.
Ponce
argues
that
this
was
legal
error
and
by
Id.
factually
erroneous because the medical record supported her reports of
“right
upper
extremity
limitations
including:
diminished
strength and sensation; positive Phalen’s and Tine’s signs; and
significant diagnostic evidence of stenosis, degeneration, cord
compression, and cervical radiculopathy.
Ponce
argues
that
the
ALJ
erred
by
Id. at 12.
basing
his
Third, Ms.
credibility
assessment on his personal observation of Ms. Ponce during the
ALJ
hearing.
Id.
Specifically,
she
argues
that
she
never
claimed to be in constant pain and that she was not preforming
the activities that exacerbated her pain during the hearing,
such as walking or standing.
Id. at 12-13.
Ms. Ponce argues
that, because the ALJ based his credibility determination on her
appearance
at
the
hearing,
he
failed
to
consider
many
other
factors such as her surgeries, treatments, and her work history
that
showed
she
was
continuously
employed
for
thirty
years
before her alleged onset date. Id. at 13. Fourth, Ms. Ponce
argues
that
the
ALJ
erred
by
not
considering
her
prior
consistent testimony that she gave in front of the previous ALJ,
and that he failed to assess her pain and daily activities.
The Commissioner argues that the ALJ’s credibility finding
was not patently wrong, and that the ALJ assessed Ms. Ponce’s
35
credibility
in
great
detail.
Def.
Resp.
pp.
10,
12.
The
Commissioner further argues that, although the Seventh Circuit
criticizes boilerplate language, it has not “held that the mere
appearance of such language is grounds for reversal, rather, it
is the use of the statement without any other explanation.” Id
at 11.
Next, the Commissioner argues that the ALJ did properly
assess
Ms.
complaints.
Ponce’s
Ponce
Id.
at
credibility
regarding
the
year
and
12.
did
disregard
Specifically,
based
her
not
on
her
symptoms
the
Commissioner
ALJ
subjective
assessed
contradictory
commenced,
different years: 2000, 1998, and 1996.
Next,
the
her
argues
Ms.
statements
noting
three
Id. at 12-13.
that
the
ALJ
not
only
considered his personal observations and the medical record in
determining
Ms.
Ponce’s
credibility,
subjective complaints. Id. at 12.
but
also
Ms.
Ponce’s
Specifically the Commissioner
argues that the ALJ noted Ms. Ponce’s complaints of February
2008, October 2002, and Ms. Ponce’s testimony describing the
pain from 2005-2010.
Id.
Next, the Commissioner argues that
ALJ did not have to specifically address the surgeries regarding
Ms. Ponce undergoing aggressive treatment because the first of
the surgeries took place in February 2008, eight years after Ms.
Ponce’s alleged onset date, rendering them useless to evaluating
Ms. Ponce’s credibility regarding the eight years preceding the
surgery.
Id. at 14.
36
The ALJ did indeed used boilerplate language discounting
the intensity, persistence and limiting effects of Ms. Ponce’s
alleged symptoms. (R. 42.) However, in the immediate following
paragraph, as well as throughout the rest of the opinion, the
ALJ expanded his finding with further detail about the severity
of
Ms.
Ponce’s
alleged
symptoms,
medical
records,
and
treatments.(R. 42-47.) The ALJ noted that Ms. Ponce’s subjective
complaints regarding her burst appendix, which occurred in 1995,
being the cause of her residual complications and problems, was
baseless due to it being remote in time and not indicated in the
medical record.
Id. at 46.
The ALJ only mentioned Ms. Ponce’s
first back surgery in detail, and did not mention the other two
surgeries in formulating his opinion regarding her credibility,
nor did he mention Ms. Ponce’s prior testimony in her previous
ALJ hearing.
Id. at 45.
However, he mentioned that, even as
recent as September of 2010, Ms. Ponce indicated that she had
very minimal back pain, which indicates she could have performed
light work during that time. Id. at 46.
evaluated
Ms.
Ponce’s
credibility
Also, the ALJ partially
based
on
her
describing
debilitating pain at the hearing without exhibiting any overt
pain.
Id. at 42.
Even
with
the
ALJ
using
boiler
plate
language
in
his
analysis, and partially using the ALJ hearing as a basis for his
credibility
determination,
the
ALJ
37
still
provided
substantial
and
detailed
The
ALJ
evidence
provided
in
over
determining
five
pages
Ms
of
Ponce’s
analysis
credibility.
of
objective
medical records, in assessing why Ms. Ponce would be able to
perform light work and why her statements regarding her alleged
symptoms
were
not
credible
as
to
preclude
her
from
working
altogether. Even if the Court were to find that all of Ms.
Ponce’s complaints regarding her credibility assessment had some
validity,
it
still
would
not
be
enough
to
surmount
the
substantial amount of evidence that led to the ALJ’s decision.
The Court finds that the determination that Ms. Ponce lacked
credibility
performing
and
light
that
her
work
symptoms
prior
to
did
not
September
preclude
17,
her
2009
to
from
be
reasonable and well supported by the evidence.
THE ALJ’S RFC DETERMINATION
Next, Ms. Ponce argues that the ALJ failed to analyze her
functional capacity and that he did not follow Social Security
Administration policy.
Pl. Mot. S.J. at p. 14. When determining
a claimant's RFC, the ALJ must consider the combination of all
limitations on the ability to work, including those that do not
individually rise to the level of a severe impairment. Denton v.
Astrue, 596 F.3d 419, 423 (7th Cir. 2010) (citing 20 C.F.R. §
404.1523; Terry v. Astrue, 580 F.3d 471, 477 (7th Cir.2009);
Villano v. Astrue, 556 F.3d 558, 563 (7th Cir.2009)). A failure
to fully consider the impact of non-severe impairments requires
38
reversal.
Golembiewski
v.
Barnhart,
322
F.3d
912,
918
(7th
Cir.2003).
Ms. Ponce argues that the ALJ did not “include a discussion
of
why
reported
symptom-related
functional
limitations
and
restrictions can or cannot reasonably be accepted as consistent
with the medical and other evidence.” Pl. Mot. S.J. at p. 15.
Ms.
Ponce
argues
that
assess, her fatigue.
the
Id.
ALJ
noted,
yet
did
not
properly
Specifically, her difficulty sleeping
at night and her need for extra sleep during the day.
Id.
She
also argues that the ALJ failed to consider her neck pain and
limitations and that such failure amounts to reversible error
because the vocational expert testified that no jobs would be
available if she could only occasionally rotate, extend, or flex
her neck.
Id.
The Commissioner argues that Ms. Ponce’s argument regarding
the ALJ failing to assess limitations based on her fatigue and
neck are baseless.
that
“SSR
96-8p
Def. Resp. p. 8.
does
not
require
The Commissioner argues
that
an
ALJ
discuss
assessment of every symptom or complaint in the record.”
his
Id.
Furthermore, the Commissioner argues that Ms. Ponce’s complaints
about
she
only
complained once of fatigue prior to her date last insured.
Id.
at 9.
record
her
neck
and
fatigue
were
minimal
and
that
The Commissioner argues that the first mentioning in the
of
neck
pain
occurred
39
in
2010,
and
that
“absent
contemporaneous records supporting a conclusion that prior to
September 2005, Plaintiff had disabling limitations related to
fatigue and neck pain, the ALJ did not err by excluding fatigue
and neck pain from his discussion and RFC determination.”
During the hearing, the ALJ asked the VE a hypothetical
regarding
job
availability
for
a
person
who
had
functional
limitations with the ability to occasionally rotate, extend or
flex their neck.
(R. 93.)
The VE responded that there would be
no jobs available for such a person.
Id.
In his opinion, the
ALJ did note that Ms. Ponce denied evening fatigue in July of
2003, but the following year in June of 2004, she complained of
excessive fatigue.
Ms.
Ponce
2008.
denied
(R. 43.)
having
Furthermore, he also noted that
significant
neck
pain
in
January
of
(R. 45.)
Although the ALJ did not expound in great detail regarding
Ms. Ponce’s functional capacity as it related to fatigue or neck
pain,
he
did,
determination.
Ponce
only
insured.
however,
(R. 43, 45.)
complained
Id.
mention
of
it
in
his
credibility
As argued by the Commissioner, Ms.
fatigue
once
before
her
date
last
Furthermore, while Ms. Ponce argues that the ALJ
failed to properly assess her work limitations due to neck pain,
she denied having significant neck pain in 2008.
These
symptoms
were
remote
and
contradictory.
(R. 466.)
Therefore,
the
Court finds that the ALJ was reasonable in not expounding on
40
such symptoms in great detail, as complaining of fatigue only
once before her date last insured and denying significant neck
pain three years after the date, shows that these limitations
had little to no impact on Ms. Ponce’s functional capacity and
ability to perform light work.
The Court finds that (1) there is substantial evidence to
support
that
the
ALJ
adequately
assessed
Ms.
Ponce’s
lower
extremity limitations (2) that the ALJ provided substantial and
detailed analysis to support his credibility determination and
(3) the ALJ was reasonable in his RFC assessment of Ms. Ponce.
Therefore, the Court finds that the ALJ's decision is supported
by substantial evidence and should be affirmed.
Conclusion
For
Ponce’s
the
reasons
Motion
Commissioner's
for
Motion
set
forth
Summary
for
above,
the
Judgment
Summary
Court
and
Judgment,
denies
grants
affirming
Ms.
the
the
decision.
Date: May 22, 2014
E N T E R E D:
_________________________________
MAGISTRATE JUDGE ARLANDER KEYS
UNITED STATES DISTRICT COURT
41
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