Nowak v. Colvin

Filing 24

MEMORANDUM AND OPINION affirming the final decision of the Commissioner of Social Security. The Clerk of Court shall enter judgment in favor of defendant. Signed by Magistrate Judge Clifford J. Proud on 6/2/2015. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ELICE C. NOWAK,

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

Civil No. 14-cv-554-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), pro se plaintiff Elice C. Nowak seeks
judicial review of the final agency decision denying her application for
Supplemental Security Income (SSI) benefits pursuant to 42 U.S.C. § 423. 2
Procedural History
Plaintiff applied for benefits in March, 2011, alleging disability beginning on
December 15, 2009. (Tr. 14). After holding an evidentiary hearing, ALJ James
E. Craig denied the application in a written decision dated April 3, 2013. (Tr.
16-25). The Appeals Council denied review and the decision of the ALJ became
the final agency decision. (Tr. 1). Administrative remedies have been exhausted

This matter was referred to the undersigned for final disposition upon consent of the parties,
pursuant to 28 U.S.C. §636(c). See, Doc. 11.

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Plaintiff was represented by counsel when this case was filed. Counsel was granted leave to
withdraw. See, Doc. 19.

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and a timely complaint was filed in this Court.
Plaintiff has not filed a brief or otherwise identified any specific error in the
ALJ’s decision. Therefore, the Court will undertake a general review of the record.
Applicable Legal Standards
To qualify for SSI, a claimant must be disabled within the meaning of the
applicable statutes. 3 For these purposes, “disabled” means the “inability to engage
in any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. §423(d)(1)(A). For a DIB claim, a claimant must establish that she was
disabled as of her date last insured. Stevenson v. Chater, 105 F.3d 1151, 1154
(7th Cir. 1997).
A “physical or mental impairment” is an impairment resulting from
anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C.
§423(d)(3).

“Substantial gainful activity” is work activity that involves doing

significant physical or mental activities, and that is done for pay or profit. 20
C.F.R. §§ 404.1572.
Social Security regulations set forth a sequential five-step inquiry to
The statutes and regulations pertaining to Disability Insurance Benefits (DIB) are found at 42
U.S.C. § 423, et seq., and 20 C.F.R. pt. 404. The statutes and regulations pertaining to SSI are
found at 42 U.S.C. §§ 1382 and 1382c, et seq., and 20 C.F.R. pt. 416. As is relevant to this case, the
DIB and SSI statutes are identical. Furthermore, 20 C.F.R. § 416.925 detailing medical
considerations relevant to an SSI claim, relies on 20 C.F.R. Pt. 404, Subpt. P, the DIB regulations.
Most citations herein are to the DIB regulations out of convenience.

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determine whether a claimant is disabled. The Seventh Circuit Court of Appeals
has explained this process as follows:
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates whether an
alleged physical or mental impairment is severe, medically
determinable, and meets a durational requirement. The third step
compares the impairment to a list of impairments that are considered
conclusively disabling. If the impairment meets or equals one of the
listed impairments, then the applicant is considered disabled; if the
impairment does not meet or equal a listed impairment, then the
evaluation continues. The fourth step assesses an applicant's residual
functional capacity (RFC) and ability to engage in past relevant work. If
an applicant can engage in past relevant work, he is not disabled. The
fifth step assesses the applicant's RFC, as well as his age, education,
and work experience to determine whether the applicant can engage in
other work. If the applicant can engage in other work, he is not
disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
Stated another way, it must be determined: (1) whether the claimant is
presently unemployed; (2) whether the claimant has an impairment or combination
of impairments that is serious; (3) whether the impairments meet or equal one of
the listed impairments acknowledged to be conclusively disabling; (4) whether the
claimant can perform past relevant work; and (5) whether the claimant is capable of
performing any work within the economy, given his or her age, education and work
experience. 20 C.F.R. §§ 404.1520; Simila v. Astrue, 573 F.3d 503, 512-513 (7th
Cir. 2009).
If the answer at steps one and two is “yes,” the claimant will automatically be
found disabled if he or she suffers from a listed impairment, determined at step
three. If the claimant does not have a listed impairment at step three, and cannot
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perform his or her past work (step four), the burden shifts to the Commissioner at
step five to show that the claimant can perform some other job. Rhoderick v.
Heckler, 737 F.2d 714, 715 (7th Cir. 1984). See also Zurawski v. Halter, 245
F.3d 881, 886 (7th Cir. 2001) (Under the five-step evaluation, an “affirmative
answer leads either to the next step, or, on Steps 3 and 5, to a finding that the
claimant is disabled…. If a claimant reaches step 5, the burden shifts to the ALJ to
establish that the claimant is capable of performing work in the national
economy.”).
This Court reviews the Commissioner’s decision to ensure that the decision
is supported by substantial evidence and that no mistakes of law were made. It is
important to recognize that the scope of review is limited. “The findings of the
Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this Court must
determine not whether Ms. Nowak was, in fact, disabled at the relevant time, but
whether the ALJ’s findings were supported by substantial evidence and whether
any errors of law were made. See, Books v. Chater, 91 F.3d 972, 977-78 (7th Cir.
1996) (citing Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995)).
The Supreme Court has defined “substantial evidence” as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 91 S. Ct. 1420, 1427 (1971). In reviewing for “substantial
evidence,” the entire administrative record is taken into consideration, but this
Court does not reweigh evidence, resolve conflicts, decide questions of credibility,
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or substitute its own judgment for that of the ALJ. Brewer v. Chater, 103 F.3d
1384, 1390 (7th Cir. 1997). However, while judicial review is deferential, it is not
abject; this Court does not act as a rubber stamp for the Commissioner. See,
Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
ALJ Craig followed the five-step analytical framework described above. He
found that plaintiff had not engaged in substantial gainful activity since the alleged
onset date. He found that plaintiff had severe impairments of interstitial cystitis,
history of Crohn’s colitis, depression, generalized anxiety disorder, pain disorder
associated with psychological factors and a medical condition, pseudoseizures,
borderline personality traits, somatization disorder versus somatic delusions, and
opiate dependence and abuse. He further determined that these impairments did
not meet or equal a listed impairment.
The ALJ found that Ms. Nowak had the residual functional capacity (RFC) to
perform light work with no exposure to dangerous electric shock, moving
machinery or heights. She was unable to perform detailed or complex tasks, and
was restricted to only occasional intermittent contact with coworkers, supervisors
and the public.
Based on the testimony of a vocational expert, the ALJ found that plaintiff
was able to do jobs which exist in significant numbers in the national and local
economies. Therefore, he concluded that she was not disabled during the relevant
time period.
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The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order.

The following is a summary of

pertinent portions of the record.
1.

Agency Forms
Plaintiff was born in 1962, and was 47 years old on the alleged onset date of

December 15, 2009. (Tr. 117). She alleged that she was unable to work because
of a seizure disorder, interstitial cystitis, and depression. (Tr. 121). She had
worked in the past as a “team leader” at a Target store, a room inspector in a hotel,
a dog handler at a kennel, a cashier and a receptionist. (Tr. 144-145).
In a Function Report filed in August, 2011, plaintiff stated that she had
constant pain and had to be “heavily medicated to prevent seizures.” She stated
that she was “bedridden.” (Tr. 180-181).
Plaintiff’s adult children lived with her. Her son filed a report in August,
2011, in which he stated that plaintiff had “1 or less” seizures a month and he had
witnessed his mother have a total of 4 seizures.

(Tr. 202).

Plaintiff’s adult

daughter filed a report stating that her mother had “1 or less” seizures a month, and
she had witnessed only 1 seizure. (Tr. 203).
2.

Evidentiary Hearing
Plaintiff was represented by an attorney at the hearing on February 27, 2013.

(Tr. 40).
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Plaintiff testified that her niece was taking care of her. Her niece took care of
everything around the house and helped her with her personal care. She even had
to cut up plaintiff’s food. Plaintiff’s right hand did not work very well since she had
a very bad seizure in October, 2012. (Tr. 46-47).
She had a Medicaid card. (Tr. 41).
Ms. Nowak testified that she had 3 to 4 seizures a month during which she
was “out” for 5 to 30 minutes. She was not functional for several hours after a
seizure.

Medication controlled her seizures for a while, but then she became

tolerant of the medication. (Tr. 43).
Cystitis caused her to have “constant bleeding” from her bladder, and
constant pain. It was “completely painful” and she was “bedridden most of the
time.” (Tr. 45).
A vocational expert also testified. The ALJ asked a hypothetical question
that corresponded to the ultimate RFC findings, set forth above. The VE testified
that this person could not do plaintiffs past work but she could do other jobs such
as bench assembler, electrical assembler and bench hand. (Tr. 50-51).
3.

Medical Treatment
(a)

Seizure Disorder

Ms. Nowak was admitted to the hospital for seizure activity in December,
2009. She had been diagnosed with a seizure disorder several years earlier and
started on anti-seizure medication. She stopped taking the medication about a

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year prior to the hospitalization. She was restarted on anti-seizure medication.
(Tr. 265-271). She followed up with Dr. Syed Shah in February, 2011. She had
not had any more seizures. She was taking Keppra and Dilantin. She was to
continue on those medications and return in 4-6 weeks. (Tr. 223). There are no
further office notes from Dr. Shah.
In June, 2011, plaintiff told a doctor that she had not been taking Dilantin
and had not had any seizure activity. (Tr. 475).
Ms. Nowak saw Dr. Roger Joy in his office for problems related to cystitis on
September 30, 2011. He had seen her in the hospital and had increased her
dosage of Dilantin because her level was extremely low.

She had “denied

noncompliance as a reason why.” She said she had a seizure the previous Friday.
(Tr. 610-613). On December 27, 2011, plaintiff told Dr. Joy that she had not had
any more seizures. (Tr. 703). The next mention of a seizure in Dr. Joy’s records
is dated January 11, 2012. Plaintiff said she had gone to the emergency room for
a seizure a couple of days prior. (Tr. 618). There is no emergency room record of
this visit.
Plaintiff told Dr. Julia Bancroft that she went the emergency room for a
seizure in August, 2012. (Tr. 805). On October 11, 2012, she told Dr. Bancroft
she had 8 seizures in 2 weeks. (Tr. 814). Dr. Bancroft’s office notes indicate that
plaintiff was exercising daily, for a total of 5 to 10 hours a week in the fall of 2012.
(Tr. 806, 809, 812, 815).
On October 17, 2012, plaintiff was admitted to St. Elizabeth’s Hospital in
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Belleville, Illinois, on transfer from the emergency room at another hospital. She
had gone to the emergency room for suicidal ideation. She claimed that she had a
seizure in the ambulance. Dr. Randy Jung determined that this episode was really
a pseudoseizure. She gave inconsistent accounts of her medications during her
stay, so the pharmacy was called. She had not had any medications dispensed
since November, 2011.

Dr. Jung stated that she presented a “melodramatic

presentation” and the ambulance was diverted to another hospital “where she was
evaluated and had absolutely no physical signs whatsoever that indicated any type
of physical signs of pathology.”

She was hospitalized for 5 days.

Dr. Jung

concluded that her reports of “terrible excruciating symptoms seems largely
exaggerated.” He observed that she did not appear to be in “any kind of meaningful
physical distress whatsoever.” In addition, she claimed to be depressed, but he
observed no evidence to support that claim. She claimed to have had a prior
stroke, but a CT scan of the brain was normal, which “called into question” her
claim of a prior stroke. She claimed that she had not used opiates “for years,” but
a drug screen was positive for opiates. Dr. Jung stated that he “strongly suspect[s]
this patient is trying to represent herself as having exaggerated symptomology in
some effort to gain additional housing and food in a manner similar to the
pseuodseizure she had in the ambulance….” (Tr. 819-825).
(b)

Cystitis/Crohn’s Disease

Plaintiff was hospitalized a number of times for complaints relating to cystitis
and/or Crohn’s disease. See, 225-370, 453-563, 659-801, 818-836, 842-921).
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In December, 2009, Dr. Solomon Apostol noted that she had been doing
“relatively well at home with her sulfasalazine tablets” until two weeks prior to
admission. (Tr. 283-284). In February, 2010, Dr. Apostol noted that she had
been doing well up until two days prior to admission. (Tr. 256-257).
Ms. Nowak was hospitalized again in June, 2011, under the care of Dr.
Niranjan Shrestha. The nurses who were taking care of her reported that she had
“significant drug-seeking behavior.” Dr. Shrestha determined that he would no
longer act as her primary care physician “due to her drug-seeking behavior.” (Tr.
480).
Plaintiff then came under the care of Dr. Roger Joy. She was hospitalized
under Dr. Joy’s care in February, 2012. In the discharge summary, Dr. Joy wrote:
The patient is a frequent admission with this bladder pain that has
been going on for many years. There is no true treatment of this,
other than to provide analgesics. We do however believe that the
patient’s discomfort is not as bad as she says, and we have to be very
careful about how we approach her in the hospitalization with IV
narcotics.
(Tr. 760).
Plaintiff was again hospitalized at the end of March, 2012. Dr. Joy’s history
and physical note states:
This is a 49-year old female who was in the office complaining of her
usual suprapubic pain, abdominal pain, nausea and vomiting stating
that it had been ongoing for 4-5 days. The patient has chronic
interstitial cystitis by history, has had multiple admissions to the
hospital for pain management and antiemetics despite the history
elicited from her. There was never any evidence of her being
dehydrated. We have never witnessed any nausea and vomiting in the
hospital. There is certainly some suspicion to her history. We have
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obtained some records from her previous provider which do
document interstitial cystitis. However, it appears that this patient
has been on ongoing narcotics since at least 2007.
(Tr. 739).
Plaintiff was hospitalized again in mid-April, 2012. In a progress note, Dr.
Joy noted that plaintiff claimed to have vomited twice while in the hospital the
previous day. He wrote, “However, it was unwitnessed and when the nursing staff
saw it, it was cold and did not appear to be something that the patient regurgitated.”
(Tr. 845). In the discharge summary, Dr. Joy noted that plaintiff was admitted
through the emergency room, and she initially had bacteria in her urine. She was
started on antibiotics because of concern that she had a urinary tract infection. He
continued:
Because there was concern of her contamination, the urinalysis was
repeated on a straight cath preparation. It is amazing that on her
original specimen from the emergency department, there was 3+
blood. However on a repeat urinalysis by straight cath, there was no
red blood cells. This is the second time that this has occurred in this
individual who states constant pain and constant hematuria. She has
given us a history of having bladder cancer and having some InterStim
anticarcinogenic agents as the etiology of her interstitial cystitis. We
have queried the Army facility that this is supposedly to have occurred
and we are awaiting their records.
(Tr. 846). Dr. Joy also noted that her hospital course was “uncomplicated” and
the “only thing she wanted was her pain medications on time.” She asked Dr. Joy
to let her stay another day, but he felt it was not justifiable. She was to see a
urologist in Chicago for further evaluation. (Tr. 846).
c)

Depression/Anxiety
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As was detailed above, plaintiff was admitted to St. Elizabeth’s Hospital on
October 17, 2012, on transfer from the emergency room at another hospital. She
had gone to the emergency room for suicidal ideation. In the discharge summary,
Dr. Jung noted discrepancies in plaintiff’s presentation. He doubted that she had
a real seizure in the ambulance, she had not had her prescriptions filled since
November, 2011, and her “self report of all these terrible excruciating symptoms
seems largely exaggerated.” He also noted that she claimed that her depression
was worse, but she “actually seems totally without evidence as an external observer
of being particularly depressed or anxious.” (Tr. 819). In an addendum, he noted
that she did not have a home to go to upon discharge, and he “strongly suspect[ed]
this patient is trying to represent herself as having exaggerated symptomology in
some effort to gain additional housing and food. . . .” (Tr. 821).
Plaintiff was admitted to St. Mary’s Good Samaritan Hospital in Centralia,
Illinois, in November, 2012, for suicidal ideation. She had been abusing Vicodin,
taking 10 to 12 pills a day, and had been kicked out of her son’s home. She had
not been taking her seizure medication. Her drug screen was positive for opiates.
She indicated that she wanted to “get detoxed.” (Tr. 914). She was discharged
after 4 days in improved condition. Her niece had agreed that plaintiff could stay
with her. The Axis I diagnoses were substance-induced mood disorder, opiate
dependence and opiate abuse. She had psychosocial stressors of homelessness
and addiction to pain medication. It was “strongly suggested that she go through a
substance abuse program.” (Tr. 911-912).
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4.

Opinions of Treating Doctors
There are no functional assessments from plaintiff’s treating doctors in the

record.
5.

Consultative Psychological Exam
Fred Klug, Ph.D., performed a consultative psychological exam in May, 2011.

He concluded that Ms. Nowak’s attention span was adequate and her concentration
was good. Her immediate and long term memory were intact, but her short term
memory was poor.

New learning ability was good.

Tests for central nervous

system deficits were negative for brain impairment. Her thought processes were
goal-directed and relevant, and she had no hallucinations, delusions, obsessions or
compulsions. (Tr. 405-408).
Analysis
Plaintiff has not identified any particular error committed by the ALJ. The
Court has undertaken a general review of the record and of the ALJ’s decision,
recognizing that the Court must act as an impartial decision maker and not as an
advocate for the pro se plaintiff. Pliler v. Ford, 124 S. Ct. 2441, 2446, 159 L. Ed.
2d 338 (2004).
After carefully reviewing the administrative record and the ALJ’s decision,
this Court concludes that the final decision of the Commissioner must be affirmed,
for the following reasons.
ALJ Craig followed the established five-step sequential analysis.
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In

performing this analysis, he discussed the relevant medical evidence. This is not a
case in which the ALJ cherry-picked the evidence or ignored evidence favorable to
the plaintiff’s case. See, e.g., Srogham v. Colvin, 765 F.3d 685, 698 (7th Cir.
2014).
The ALJ’s credibility analysis was based on appropriate factors and was
supported by references to specific evidence. “So long as an ALJ gives specific
reasons supported by the record, we will not overturn his credibility determination
unless it is patently wrong.” Curvin v. Colvin, 778 F.3d 645, 651 (7th Cir. 2015).
In particular, the ALJ noted that plaintiff’s doctors were skeptical of her
complaints, that the medical records and the reports of her adult children
contradicted her account of her seizure disorder, and that there was no evidence in
any of the medical records to support her claim that she was in constant pain and
was bedridden.
The ALJ’s RFC assessment was supported by the opinion of a state agency
consultant.

“State agency medical and psychological consultants are highly

qualified physicians and psychologists who are experts in the evaluation of the
medical issues in disability claims under the Act.” SSR 96-6p, 1996 WL 374180,
at *2. It is proper for the ALJ to rely upon the assessment of a state agency
consultant. Schmidt v. Barnhart, 395 F.3d 737, 745 (7th Cir. 2005). Lastly, the
ALJ’s conclusion that plaintiff was able to perform jobs that exist in the national
and local economies was supported by the testimony of a vocational expert.
In sum, after careful review of the record as a whole, the Court is convinced
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that ALJ Craig committed no errors of law, and that his findings are supported by
substantial evidence. Therefore, the final decision of the Commissioner must be
affirmed.
Conclusion
The final decision of the Commissioner of Social Security denying Elice C.
Nowak’s application for disability benefits is AFFIRMED.
The Clerk of Court shall enter judgment in favor of defendant.
IT IS SO ORDERED.
DATE:

June 2, 2015.

s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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