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William Hughes v. Michael J. Astrue

November 21, 2011


The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole


The plaintiff, William Hughes, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). 42 U.S.C. §§ 423(d)(2). Mr. Hughes asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.



Mr. Hughes applied for DIB on June 26. 2006, alleging that he became disabled on June 1, 2006, due to chronic dry eye and eye pain, headaches, rapid heart beat, shortness of breath, and depression. (R. 140-142, 198). His application was denied initially and upon reconsideration. (R. 74-85). Mr. Hughes filed a timely request for hearing. An ALJ held a hearing on May 21, 2009, at which Mr. Hughes, represented by counsel, appeared and testified. (R. 27-71). In addition, Thomas Guslove testified as a vocational expert. (R. 65-70). On September 18, 2009, the ALJ issued a decision finding that Mr. Hughes was not disabled because he did not have a severe impairment -- an impairment that would significantly limit his ability to perform basic work activity -- prior to the expiration of his insured status on June 30, 2008. (R. 7-26). This became the final decision of the Commissioner when the Appeals Council denied Mr. Hughes' request for review of the decision on July 21, 2010. (R. 1-5). See 20 C.F.R. §§ 404.955; 404.981. Mr. Hughes has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).




Vocational Evidence Mr. Hughes was born on October 26, 1976, making him thirty-two years old at the time of the ALJ's decision. (R. 140). His most recent job was as in customer service/phone sales from February to April in 2004. (R. 171). Prior to that, he worked in large machine sales, computer support and graphic design, and as a technical dispatcher and technical writer. (R. 171). These jobs were all performed mostly while sitting and required little lifting -- no more than ten pounds at any time. (R. 171-178). For the purposes of receiving DIB, Mr. Hughes' insured status expired June 30, 2008. (R. 12, 126, 148, 155). Accordingly, the question is whether Mr. Hughes was disabled prior to that date. Califano v. Sanders, 430 U.S. 99, 101 (1977); Allord v. Astrue, 631 F.3d 411, 413 (7th Cir. 2011).


Medical Evidence On June 19, 2006, Mr. Hughes saw Dr. Michael McGarry, complaining of occasional heart palpitations occurring at rest, eye pain, nasal congestion, and ear pain. The doctor advised Mr. Hughes to undergo a Holter monitor, prescribed him medication for the ear and nasal problems, and told him to see an ophthalmologist for the eye problem. (R. 451). The next month, on July 13th, Mr. Hughes called the doctor's office and complained of worsening dyspnea (shortness of breath) on exertion. The doctor recommended he go to an emergency room (R. 452); he was seen at Resurrection Health Care's St. Francis Hospital that same day. (R. 457-62). Mr. Hughes recounted a three-week history of intermittent rapid palpitations which could occur at any time, shortness of breath with simple activity, and chest pain. His heart rate ranged from 117-140. An EKG was deemed normal but for a sinus rhythm with possible premature atrial complexes with aberrant conduction and premature ventricular complexes or fusion complexes. (R. 461). Mr. Hughes' heart rate came down following completion of the diagnostic studies including a negative stress test. (R. 462). The final diagnosis was simply palpitations. (R. 460).

Three days later on July 19, 2006, Mr. Hughes returned to the St. Francis Hospital emergency room with worsening chest pain which he described as a "ripping type" of pain. (R. 466). Tests were agin essentially normal and he was referred to Dr. McGarry later that day. (R. 467). The doctor described Mr. Hughes as "very anxious." (R. 453). Dr. McGarry also noted that Mr. Hughes was still having occasional palpitations with chest wall pain which the doctor attributed to a pectoral strain. He prescribed Naproxen for the pain, Metropolol for the palpitations, and Buspar for anxiety. (R. 453). Two days later on July 21st, Mr. Hughes was noted as still having anxiety and Dr.McGarry added prescriptions for Zoloft --an anti-depressant -- and Klonopin -- an anti-anxiety medication.

At the end of July, Mr. Hughes saw Dr. McGarry to follow up on his palpitations and for ongoing pectoral pain. (R. 455). On August 22, 2006, Mr. Hughes went to the Christ Hospital emergency room (R. 261-67) for palpitations and shortness of breath which he described as continuous. (R. 262). On August 31, 2006 Mr. Hughes saw Northwestern University Hospital Cardiologist Dr. John Jacobson who did an assessment of Mr. Hughes' palpitations. The doctor noted that the palpitations were somewhat better on Altenol, but that Mr. Hughes was not tolerating the medication well due to side effects. (R. 294). Dr. Jacobson advised Mr. Hughes that the arrhythmias "while very symptomatic, (were) unlikely to be life threatening." (R. 294). Dr. Jacobson recommended that Mr. Hughes undergo an event monitor while off the Altenol. (R. 294).

On September 11, 2006, Mr. Hughes returned to Dr. McGarry. (R. 456). Mr. Hughes was not tolerating the medication that had previously been prescribed for his chest wall pain -- it was causing stomach problems. Because of ongoing chest pain and spasm, an injection of Kenalog and Lidocaine was administered to the right chest wall pectoral muscle. (R. 456).

Later that month, on September 29, 2006, Mr. Hughes went to Christ Hospital, where Dr. Jonathan Wyatt evaluated the persistent pain in his breast and underarm. The doctor recommended a rheumatology consult to rule out fibromyalgia and polymyositis and also recommended an MRI to rule out a bulging disc at the thoracic level (R. 279). The following day, Mr. Hughes was back in the emergency room, complaining of palpitations and chest pressure, this time at Palos Community Hospital. Mr. Hughes was hospitalized through October 2, 2006. (R. 475-500). The admitting physician, Dr. Abdul-Hamid Shahbain, thought Mr. Hughes was suffering from anxiety and probable depression. The palpitations responded to Flecainide, and their severity decreased. (R. 485). Mr. Hughes also saw Dr. Thomas Bump on October 1, 2006. The doctor described Mr. Hughes' palpitations as "highly symptomatic" and that they are causing Mr. Hughes "extreme distress." Dr. Bump described Mr. Hughes as "highly anxious and distressed" and said "in fact I am concerned about his emotional and mental state." (R. 500). A heart monitor showed occasional premature ventricular and atrial beats. Dr. Bump felt it was Mr. Hughes' emotional state, and not the premature beats, that was the more likely determinate of his extreme distress. (R. 500). Nevertheless, he called the palpitations "very disabling." (R. 500).

On October 9, 2006, a 24-hour Holter monitor performed while Mr. Hughes was on Flecainide revealed "frequent premature atrial contractions which are felt by the patient as palpitations and occasional premature ventricular contractions . . . [but] no sustained arrythmia." (R. 502). The next month, on November 1, 2006, Dr. Bump described the palpitations as "extremely severe and disabling" and said they "correspond chiefly to frequent premature fascicular beats (a variant of premature ventricular beats)." Dr. Bump further noted that Mr. Hughes could not tolerate beta-blocker therapy and that he has been treated with increasing doses of Flecainide. But, higher doses caused Mr. Hughes dizziness and nausea. The doctor planned on changing the medication for the palpitations to Rythmol. (R. 447). The following week, on November 8, 2006, Dr. Bump noted that the Rythmol (Propafenone) had not produced an improvement and that Mr. Hughes remained "very symptomatic from his frequent ectopic beats." Dr. Bump felt multiple extra systoles in Mr. Hughes' pulse. He increased dosage of Propafenone to try to help Mr. Hughes with his "highly symptomatic extra systoles." Dr. Bump noted that Mr. Hughes was not a good candidate for an ablation, as this procedure would cause significant risk of causing complete heart block and pacemaker dependency. (R. 446).

On November 17, 2006, Mr. Hughes told Dr. Bump that the increased dosage of Rhythmol had only helped for a couple of days. Once again, Dr. Bump described Mr. Hughes as suffering from "highly symptomatic fascicular beats." His examination once again revealed frequent extrasystoles. Given the lack of response to prior medication, Dr. Bump began a trial of Mexiletine, another arrhythmia drug. (R. 505). Unfortunately, this caused severe side effects and made Mr. Hughes feel "worse than he ever felt in his life." On December 1, 2006, his condition remained "extremely symptomatic." At that time, Dr. Bump described "the highly symptomatic premature ventricular beats (as) probably arising from a fascicle of the left bundle branch block." As Mr. Hughes told the doctor that the Rythmol had worked to best -- although it did not eliminate the premature beats, Dr. Bump restarted Mr. Hughes on the higher dosage of Rhythmol. (R. 444).

On January 20, 2007, Mr. Hughes was back at the Christ Hospital emergency room, complaining that he felt like he was going to pass out. (R. 268-75). His palpations seemed to be occurring more frequently and there was also some chest pain and shortness of breath. An ECG revealed frequent premature ventricular complexes and possible premature atrial complexes with aberrant conduction. (R. 274). The diagnosis was palpitations, and Mr. Hughes was released and advised to follow up with his doctor.

Mr. Hughes had an echocardiogram with doppler on January 29, 2007, at Loyola University Medical Center, which revealed a sinus rhythm with frequent premature ventricular complexes. (R. 743-44). On February 5, 2007, Mr. Hughes was admitted to Loyola for a cardiac catheterization and biopsy procedure which was done under sedation. (R. 746). The idea was to rule out a heart disease known as ARVD (arrhythmogenic right ventricular dysplasia) (R. 767) and, indeed, the procedure did not reveal evidence of RV dysplasia. (R. 811). The biopsy was also deemed unremarkable.

(R. 815).

Following the testing, Mr. Hughes went to see a rheumatologist, Dr. Manjari Malkani, regarding his ongoing chest wall pain and diffuse body aches and fatigue. Dr. Malkani ruled out a cardiac source for the pain and a possible musculoskeletal source for pain was explored. In the past Dr. Malkani stated that physical therapy seemed to worsen the problem and medication that had been prescribed led to gastrointestinal side effects. The doctor also noted Mr. Hughes' history of "having a poor sleep pattern with excessive daytime drowsiness and daytime fatigue." Dr. Malkani's examination revealed that there were "significant tender points of fibromyalgia for which I would like to start Flexeril." The doctor also wanted to get x-rays of Mr. Hughes' hands and feet. (R. 439).

Mr. Hughes next visited John Lincoln Hospital, where he sought treatment for blurry vision, chest pain, and right arm numbness on April 22, 2007. Mr. Hughes also reported he was still getting intermittent chest pain and palpitations. (R. 384). At subsequent ophthalmological examination on June 25, 2007, Mr. Hughes said he was having throbbing eye pain in both eyes intermittently since April 2007, and sharp pain since before April. Dr. Ziemanski indicated Mr. Hughes suffered from a vitreous detachment and multiple floaters in both eyes. The doctor said the floaters which were observed could be removed however there would be potential complications from the procedure; these were explained to Mr. Hughes. (R. 395). Mr. Hughes next saw a retinologist, Dr. Pelzak, in July of 2007, and then another ophthalmologist, Dr. Laura Sanders, in September and October of 2007. Dr. Sanders noted that Mr. Hughes was having pain around the orbits which would throb and vary in intensity. Mr. Hughes reported seeing shadows, reflections, and of being extremely sensitive to transferring from a dark to a light environment or vice versa.

Dr. Sanders noted that Dr. Pelzak had informed Mr. Hughes that he had a complete vitreous detachment of the left eye and a 75 percent vitreous detachment of the right eye. Dr. Sanders confirmed these findings in dilated fundus examination. She initially diagnosed Mr. Hughes with dry eye syndrome, based on testing which revealed "severely low" eye moisture. She gave Mr. Hughes a trial of artificial tears, but within two days Mr. Hughes reported that the eye drops were causing more irritation and blurriness. Dr. Sanders recommended a change to Visine preservative free drops. She also suggested that Mr. Hughes' complaints of headaches, nausea, and ongoing visual problems may have a neurologic component, as she could not explain the source for Mr. Hughes' severe pain and visual scintillations. (R. 402-03).

Next, Mr. Hughes saw Dr. Michael Schwartz, a neurologist, on September 12, 2007. Dr. Schwartz' felt that "some of his complaints appear to be related to a beta-adrenergic overflow syndrome," noting that in the past Mr. Hughes had been unable to tolerate beta blockers that had been prescribed. It was also Dr. Schwartz' opinion that a mandibular joint dysfunction was related to the head/ear complaints. The doctor did not believe that all of Mr. Hughes' complaints were attributable to one single syndrome. (R. 407-09).

Mr. Hughes sought counseling for the anxiety and stress he was experiencing at Metropolitan Health Services beginning in late October of 2007. (R. 594). Staff clinical notes stated that Mr. Hughes was labile, sad and irritable; he became tearful, overwhelmed and irritable. The mood swings were not considered related to a bipolar disorder but rather related to Mr. Hughes' response to stress. (R. 572-73). Mr. Hughes was further noted to have decreased energy, feelings of hopelessness and sleep disturbance. (R. 575). These symptoms were also related to what was described as Mr. Hughes' "stress response due to coping with medical condition(s)." (R. 575). It appeared to the staff that Mr. Hughes was under a significant amount of ...

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