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Perry v. Colvin

United States District Court, N.D. Illinois

May 14, 2013

SONJA PERRY, Plaintiff,
v.
CAROLYN COLVIN, Commissioner of Social Security, Defendant

Page 950

For Sonja Perry, Plaintiff: Barry Alan Schultz, LEAD ATTORNEY, Law Offices of Barry Schultz, Evanston, IL.

For Michael J. Astrue, a Commissioner of Social Security, Defendant: Zachary David Clopton, LEAD ATTORNEY, United States Attorney's Office, Chicago, IL; AUSA-SSA, United States Attorney's Office (NDIL), Chicago, IL.

Page 951

MEMORANDUM OPINION AND ORDER

Jeffrey Cole, UNITED STATES MAGISTRATE JUDGE.

The plaintiff, Sonja Perry, seeks review of the final decision of the Commissioner (" Commissioner" ) of the Social Security Administration (" Agency" ) denying her application for Disability Insurance Benefits (" DIB" ) and Supplemental Security Income (" SSI" ) under Title II of the Social Security Act (" Act" ), 42 U.S.C. § § 423(d)(2), and 1382c(a)(3)(A). Ms. Perry asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks summary judgment affirming the decision.

I.

PROCEDURAL HISTORY

Ms. Perry applied for DIB and SSI on August 10, 2007, alleging an onset date of July 14, 2004 due to fibromyalgia, head, back, and neck injury. (Administrative Record (" R." ) 147). Additionally, Ms. Perry filed concurrent disability claims on September 8, 2006 for a Period of Disability and Disability Insurance (Title II) benefits and for SSI payments. (R. 26). Because she filed her current claims less than two years after the initial adverse determination on her 2006 application, the current applications are considered to be an implied request to reopen the 2006 applications. Her current claims were initially denied on January 15, 2008, and upon reconsideration on April 4, 2008. (R. 26). Thereafter, Ms. Perry filed a written request for a hearing on Mary 23, 2008. (R. 26).

An administrative law judge (" ALJ" ) held a hearing on February 4, 2010, at which Ms. Perry, represented by counsel, appeared and testified. (R. 52-134). At this hearing, Lee O. Knutson, testified as a vocational expert. (R. 85-89). On February 17, 2010, the ALJ issued an unfavorable decision, denying Ms. Perry's application for DIB and SSI. (R. 26-47). Ms. Perry then filed a timely appeal on September 27, 2010, and requested review by the Appeals Council, which was denied on November 19, 2010. (R. 1-8). Ms. Perry has appealed that decision to this Court. This Court has jurisdiction per 42 U.S.C. § 405(g) and 1383(c).

II.

THE RECORD EVIDENCE

A.

The Vocational Evidence

Ms. Perry was born on December 24, 1969, making her forty years old at the time of the ALJ's decision (R. 62). She lived with her sister and her family. Id. She attended Englewood High School through 10th grade, and has been working towards gaining her GED. (R. 68). Ms. Perry previously worked as a school bus driver until an accident in 2004. (R. 74). She held this position for approximately five years, and worked a split-shift during that time. Id. Prior to that, she was a cashier/cook and a lunch room supervisor at a school. (R. 243).

B.

The Medical Evidence

Ms. Perry originally suffered injuries on July 14, 2004 when she was involved in an accident with another vehicle while working as a school bus driver. (R. 75-76). As a result, she suffers pain in her head, neck, shoulders, and back. See Plaintiff's Memorandum

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in Support of Her Motion for Summary Judgment at 2. (" Plaintiff's Memorandum" ). Additionally, Ms. Perry claims that she has suffered symptoms of major depression, memory loss, and a panic disorder. (R. 60, 78-80). Ms. Perry also suggests that the combination of chronic pain in her head, back, neck, and other extremities has led to a diagnosis of fibromyalgia. Id. She claims that both her mental and physical impairments have not allowed her to work since her accident in 2004. (R. 242).

On the date of the accident, Ms. Perry's medical assessment from Advocate Trinity Hospital noted pain to her head, neck, shoulders and back. (R. 366). A CT scan showed the existence of an approximately 3 x 2 x 2 cm. low attenuation extra-axial masslike lesion. (R. 335). The report further noted that the lesion appeared to potentially be an arachnoid cyst, and recommended a further MRI of the brain. Id. A chest x-ray revealed no acute cardiopulmonary findings. (R. 336). An x-ray of Ms. Perry's cervical spine showed no definitive acute bony abnormality. (R. 337). An x-ray of her lower back and lumbar spine also showed no definitive acute bony abnormality. (R. 338). Additionally, the emergency room medical report explained that Ms. Perry showed no neurological deficits, but that she did have a slow and steady gait and was experiencing a pain at the level of 8/10. (R. 366). The report also suggested that Ms. Perry consult with Dr. S. Ahmed or Ms. Perry's personal physician with copies of her CT scan in 1-7 days. (R. 367).

After Ms. Perry's discharge from Advocate Trinity Hospital, she returned to the hospital on September 10, 2004, complaining of pain, a sense of tingling and numbness, and a headache. (R. 373). She underwent a CT scan, which, according to Dr. Richard Bauer's report, showed a lesion. (R. 364, 369). Dr. Bauer suggested that an MRI of the brain be done. Id.

On August 19, 2005, Ms. Perry once again returned to the emergency room at Advocate Trinity Hospital complaining of abdominal pain and vomiting. (R. 316). She was diagnosed with acute abdominal pain and potential acute gastritis and told to consult with her primary care physician. (R. 320). On December 30, 2005, Dr. Kenneth Lapat performed a Venous Doppler exam of Ms. Perry's left leg, finding no evidence of deep vein thrombosis, but he suggested an ultrasound of the area if the symptoms persisted. (R. 333).

In addition to Ms. Perry's visits to Advocate Trinity Hospital, she underwent an audiology evaluation on November 10, 2005, performed by audiologist Nancy Hamilton at Mt. Sinai Hospital. (R. 340). Ms. Hamilton found that Ms. Perry had moderate/severe sensorineural hearing loss bilaterally. Id. Additionally, Ms. Perry was under the care of Dr. Herman Morgan for panic attacks that were not controlled by " SSRI's, beta-blockers, and antianxiolitic agents. (R. 357). According to Dr. Morgan's notes, Mr. Perry reported feeling nervous during a consultation on May 25, 2006. (R. 363). On September 9, 2006, Dr. Morgan noted that Ms. Perry still felt extremely nervous and was experiencing persistent headaches. ® . 362). In a letter dated September 7, 2007 to the Illinois Department of Human Services, Office of Rehab Services -- Disability Determination, Dr. Morgan wrote that Ms. Perry has a history of panic disorder and migraine headaches that had not been cured by treatment. (R. 448). Additionally, Dr. Morgan noted that Ms. Perry's medications as of her last visit on April 3, 2007 were Alprazolam, Paxil, and Depakote. Id.

On August 11, Ms. Perry returned to Trinity Hospital complaining of pain and

Page 953

swelling in her left ankle that radiated up to her thigh. (R. 300). After her ankle and leg were examined, Ms. Perry was discharged and told to return if her condition does not get better or worsens. (300-01). Ms. Perry also sought treatment at the Garfield Damen clinic with Dr. Oladeinde from July 2006 until November 2006. (R. 341-49). The records from these visits show that Ms. Perry reported the recent sprain to her right ankle during her visit on July 16, 2006, as well as a complaint of depression. (R. 347). Dr. Oladeinde instructed Ms. Perry to undergo an MRI and prescribed Vicodin for her ankle pain. The MRI of Ms. Perry's ankle, taken on July 17, 2006, showed swelling and mild degenerative changes. (R. 354). Ms. Perry then returned to Dr. Oladeinde on July 20, 2006, complaining of continuing ankle pain; Dr. Oladeinde suggested she begin physical therapy. (R. 346).

On August 11, 2006, Ms. Perry was back at Dr. Oladeinde's office complaining of pain and swelling in her left leg. (R. 345). Due to Dr. Oladeinde's concern that Ms. Perry may have developed deep venous thrombophlebitis (" DVT" ), Dr. Oladeinde ordered Ms. Perry to go to the E.R. at Trinity Hospital. Id. After a CT study of her left leg at Trinity Hospital, DVT was ruled out. (R. 298-300). Ms. Perry then had a follow-up visit with Dr. Oladeinde on August 17th complaining that her left leg was still swollen, which prompted the doctor to refer Ms. Perry for another ultrasound. (R. 344). Additionally, Dr. Oladeinde reviewed the MRI taken of Ms. Perry's brain, noted the arachnoid cyst, and ordered another MRI to be performed. Id. That MRI, performed on September 6, 2006, showed no abnormal enhancement, but the presence of mild sinus disease. (R. 351). Dr. Oladeinde treated Ms. Perry for her complaints of sinus problems and headaches on September 12, 2006. (R. 343).

On December 14, 2006, Ms. Perry met with Dr. Peter Biale for an Internal Medicine Consultative Examination for the Bureau of Disability Determination Services. (R. 433-37). Dr. Biale's report noted the following problems: rheumatoid arthritis, painful hands, low back pain, neck pain, hearing loss, migraine headaches, bronchitis, and depression. (R. 436). In addition to the medical examination on December 14, 2006, Ms. Perry also met with Dr. John O'Donnell who performed a Psychiatric Evaluation. (R. 438-45). In his report, Dr. O'Donnell noted several findings in his diagnosis, including: panic disorder with agoraphobia, depressive disorder, a history of post-traumatic stress disorder, a history of cognitive disorder, and personality disorder. (R. 444).

On May 18, 2007, Dr. Linda Mileti, a rheumatologist at The University of Chicago Hospital, examined Ms. Perry. (R. 400-01). Dr. Mileti noted that Ms. Perry was tender throughout both the joints and soft tissue diffusely, that she had a full range of motion, muscle strength of 5/5 on the left side, and decreased muscle strength on the right side. Id. Additionally, Dr. Mileti noted that Ms. Perry was a 3 to 4- in the proximal and distal muscle groups of both the upper and lower extremities on the right. (R. 401). Dr. Mileti concluded that she likely had fibromyalgia and probable obstructive sleep apnea. Id. Dr. Mileti examined Ms. Perry again on June 29, 2007, and noted that Ms. Perry experienced 18/18 tender points, but no evidence of diffuse connective tissue disease. (R. 403-04). Further, Dr. Mileti stated that Ms. Perry's pain likely stemmed from obstructive sleep apnea. Id. He also noted that Ms. Perry was scheduled to undergo a sleep study in August of 2007. Id.

On May 26, 2007, Ms. Perry underwent an MRI at The University of Chicago Hospital

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performed by Dr. Richard Keating. (R. 416). Dr. Keating noted that Ms. Perry complained of hearing loss and left leg weakness. Id. MRI examination was normal with no signs of hemorrhage, mass, edema, or other abnormalities. Id.

On June 8, 2007, Dr. Shalini Chawla performed a psychiatric evaluation. (R. 452-56). Dr. Chawla noted that Ms. Perry presented symptoms of depression and anxiety that stemmed from the accident in 2004. (R. 455). Dr. Chawla also found that Ms. Perry had multiple neurovegetative symptoms of depression including hopelessness, helplessness, low energy, anhedonia, and decreased concentration as well as appetite and sleep, and somatic pain symptoms. Id. Dr. Chawla noted that Ms. Perry had symptoms of panic attacks with agoraphobia and claustrophobia. Id. He found she had a biological predisposition for psychiatric illness and psychosocial stressors such as unemployment, poor coping skills in response to her illness, lack of family support, and her status as a single mother. Id. Dr. Chawla recommended that Ms. Perry partake in psychotherapy to address these stressors. (R. 456).

On December 4, 2007, Dr. Helena Radomska performed a psychiatric evaluation on Ms. Perry specifically for the Bureau of Disability Determination Services. (R. 464-68). According to Dr. Radomska's report, Ms. Perry suffered from panic disorder with agoraphobia. (R. 467). The doctor noted Ms. Perry's complaints of neck and shoulder pain as well as her fibromyalgia. Id. In regard to the stressors in Ms. Perry's life, Dr. Radomska highlighted the fact that Ms. Perry's medication provided little improvement with her mood swings and sleep. Id. Although Ms. Perry did not appear suicidal, she voiced complaints about her severe pain. Id. Dr. Radomska assigned Ms. Perry received a Global Assessment of Functioning (" GAF" ) score of a 45. [1] Id.

That same day, Ms. Perry saw Myrlie Casco for an Internal Medicine Consultative Examination for the Bureau of Disability Determination Services. (R. 469-73). Dr. Casco noted no major ailments or impairments, but did state that Ms. Perry was uncooperative due to complaints of body aches. Id.

On December 18, 2007, Dr. Towfig Arjmand performed a Physical Residual Functional Capacity Assessment (" RFC" ). (R. 493-500). Dr. Arjmand noted that Ms. Perry should never climb ropes, but that she could climb ladders and scaffolds occasionally. (R. 495). Dr. Arjmand also noted Ms. Perry's history of chronic bronchitis, and found she could not be exposed to concentrated pulmonary irritants. (R. 497).

On January 8, 2008, Ms. Perry underwent a Mental Residual Functional Capacity Assessment and another psychiatric review with Dr. Carl Hermsmeyer. (R. 501-03; 479-92). In his report, Dr. Hermsmeyer noted that Ms. Perry suffered from adjustment disorder with depressed mood. (R. 482). Dr. Hermsmeyer commented that Ms. Perry showed signs of panic disorder without agoraphobia. (R. 484). He concluded that Ms. Perry had a panic disorder without agoraphobia and an adjustment disorder with depressed mood. (R. 491). Dr. Hermsmeyer further noted that the severity of Ms. Perry's ailments did not meet or equal any mental listing, but are more than non-severe. Id. Additionally, Dr. Hermsmeyer explained that although

Page 955

Ms. Perry may have problems with understanding, remembering, and the ability to carry out detailed instructions, she retains the mental capacity to perform simple one and two-step tasks at a consistent pace. Id.

An Illinois Request for Medical Advice form was completed by Dr. John Tomassetti and Dr. Ernst Bone, on March 27 and 28, 2008. (R. 505-07). This report noted that Ms. Perry was capable of performing light, unskilled work with the occasional climbing of ramps and stairs. (R. 507). Additionally, it noted that Ms. Perry should avoid exposure to pulmonary irritants. Id.

C.

The Administrative Hearing Testimony

1.

Ms. Perry's Testimony

Ms. Perry testified that she has lived with her sister, brother-in-law, and niece at her sister's house, and has resided there for approximately the last four years. (R. 62). She stated that she had two children ages 21 and 18 and three grandchildren ages 4, 5, and 1. (R. 63). She noted that her younger son now stays with his father because he is sick. (R. 63-64). She explained that she did not have a current source of income, and that she gets by with the assistance of friends and family. (R. 64). She also received payment from a previous Worker's Compensation Case after her bus accident in 2004. (R. 64-65). She believed that she had received $12,000 in the settlement of the case. (R. 65).

Ms. Perry said she attended Englewood High School until 10th grade and that she was attempting to attain her GED. (R. 68). She testified that she could read and do some arithmetic. (R. 70). In response to the ALJ's hypothetical about figuring out the correct amount of change that would be received from a five-dollar bill, Ms. Perry said that she thought she would be able to do it. Id. Additionally, Ms. Perry stated that she currently has a driver's license, but it may be revoked because she owes $8,421 in child ...


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