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Embry v. Colvin

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

May 27, 2014

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


JEFFREY COLE, Magistrate Judge.

Natasha Embry, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration denying her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Title II of the Social Security Act ("Act"). 42 U.S.C. §§432(d)(2); 1314(a)(3)(A), 216(l) and 223(d)(2). Ms. Embry asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.



Ms. Embry applied for SSI and DIB on December 31, 2009, alleging that she became disabled on September 30, 2009, due to Moyamoya syndrome. (Administrative Record ("R.") 116-118, 155). Ms. Embry's claims were denied initially on May 11, 2010, and upon reconsideration on November 4, 2010. (R. 58-62, 67-70, 72-75). An administrative law judge ("ALJ") held a hearing on September 8, 2011, at which Ms. Embry, represented by counsel, appeared and testified. Leanne Kehr, an impartial vocational expert ("VE"), also appeared and testified. (R. 3-53).

On November 15, 2011, the ALJ issued a decision finding Ms. Embry not disabled, because her impairments did not prevent her from performing a restricted range of sedentary work. (R. 16-24). The ALJ's decision then became the final decision of the Commissioner when the Appeals Council denied Ms. Embry's request for review of on March 29, 2012. (R. 1-6). See 20 C.F.R. §§ 404.955; 404.981. Ms. Embry 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).




The Vocational Evidence

Ms. Embry was born on April 26, 1979, making her thirty-two years old at the time of the ALJ's decision (R. 33, 156). At the time of the ALJ's decision, she was approximately 5'2" and weighed 230 pounds. (R. 33). Ms. Embry has an 11th grade education, but did not graduate from high school or earn a GED, and has no vocational or specialized training. (R. 34, 156). From 2002 until 2009, Ms. Embry worked as photo specialist for Walgreens. (R. 159, 163). She was on her feet all day, and lifted and carried 20-25 pounds. (R. 164). She also worked as a sewing machine operator from 1998 to 2000, and most recently as a team leader at a department store for the month of December 2009. (R. 157).


The Medical Evidence

On August 13, 2008, Ms. Embry sought treatment after experiencing left-side tingling and numbness for about a week. (R. 260). The numbness progressed up to her face, but there was no pain, weakness, slurred speech, double vision, or difficulty swallowing. (R. 260). Ms. Embry also reported she got headaches that felt like pressure on the top of her head, probably related to her hypertension. (R. 260). She had no symptoms at her examination, however, and physical exam was essentially normal - strength, motor function, sensation, and cerebral exam - with the exception of reflexes, which were diminished bilaterally. (R. 260). ECG was normal. (R. 261-62). Ms. Embry was placed on aspirin, and sent for an MRI.

An MRI performed on November 3, 2008 revealed areas that were suspicious for damage to the myelin sheath that surrounds central nervous system axions. Multiple sclerosis was possible, but other causes could not be ruled out. (R. 259).

On April 27, 2009, Ms. Embry was unable to move her left side when she woke up. She was able to bear weight but kept falling. She went to the hospital on May 4, 2009. (R. 319, 326).

A May 7, 2008, a physical therapy report stated that Ms. Embry had suffered a transient ischemic attack in November 2008, but that Ms. Embry demonstrated safety and independence with functional mobility. She had some mild gait deviations and left side weakness. (R. 306). Upon examination, Ms. Embry denied suffering any symptoms. (R. 307). Motor strength was 4 or 5 out of 5 in all extremities. Neurological signs were essentially normal with the exception of a positive left side Hoffman's sign. (R. 308, 313-15).

An examination on May 7, 2009, revealed intact cranial nerve function, normal sensation, but some weakness and drift in the left arm. (R. 419). On May 8, 2009, Ms. Embry had an ECG. Left ventricle function was normal. Ejection fraction was 55% to 65%. There were no regional wall motion abnormalities. (R. 297). An angiogram on May 9th revealed some compromise of the right internal carotid artery. (R. 301-02). A couple of days later, Ms. Embry had a brain CT. It revealed a large perfusion defect and decreased cerebral blood flow and cerebral blood volume. The focal region of the infarct in the high right frontal lobe corresponded to the area of damage revealed in the MRI. (R. 295-96). Ms. Embry had a normal sleep study on June 4, 2009. (R. 285-86).

On April 30, 2010, Dr. Mohamed reported on Ms. Embry's condition as part of her disability application process. (R. 370-75). He noted her mental status was normal aside from minimally impaired memory and thought process. She had some right side facial weakness. (R. 370). Her strength was normal throughout except for her left hand and fingers, which were 4/5. Coordination was normal. (R. 371-72). Gait was normal, but minimally slowed. (R. 373). She had mild difficulty picking up small objects and tying laces with her left hand. (R. 374).

In June 2010, Ms. Embry underwent an EDAS procedure. (R. 400-01, 408-09). She tolerated it well. (R. 403). After physical therapy evaluation she was discharged. She was told not to lift more than 5-10 for the next 3-4 weeks, ambulate carefully with full weight bearing. (R. 404).

Dr. Alexander Panagos conducted a consultative physical exam on October 13, 2010. Ms. Embry reported that she had suffered five TIAs so far that year and a cerebral vascular accident in May. She underwent a right-side craniotomy, had an uneventful recovery and was undergoing physical therapy. She complained of blurred vision, weakness and numbness in her left arm, and difficulty holding objects for a long time. (R. 448). She could lift no more than three pounds. She had chronic headaches daily, 9/10 in severity, lasting two hours, and resolved with Ibuprofen. Examination revealed corrected vision as 20/25 on the right, 20/30 on the left. (R. 449). There was no edema in her extremities. She had a full range of motion and her gait was normal. Left hand grip strength was 4/5. There were no problems with fine or gross motor movements. Range of motion was normal in all joints. (R. 450). Reflexes and sensation were normal; motor strength was normal aside from it being 4/5 in the left arm. (R. 450-51).

Ms. Embry also saw Dr. Henry Fine for a consultative psychological exam that same day. Ms. Embry related her history of several CVAs and one larger CVA. At that point, she was depressed for about six weeks, but then returned to normal. But she was clearly depressed at the exam. She said her memory was impaired. (R. 444). Upon examination, her immediate recall was intact, but her five minute recall was impaired. She had only vague recollections of recent events such as dinner last night en route to the exam. She claimed not to know any cities besides Chicago and "Webster". She had difficulty performing simple calculations. (R. 445). Diagnosis was depression secondary to her medical condition. (R. 446).

On October 26, 2010, psychologist Phyllis Brister reviewed the medical evidence on behalf of the disability agency. She found Ms. Embry had mild restrictions in her activities of daily living and social functioning, and moderate difficulties in concentration, persistence, and pace. (R. 462). There were moderate limitations noted in the areas of: understanding and remembering detailed instructions, carrying out detailed instructions, working around others. (R. 466-67). Dr. Brister felt Ms. Embry had the capacity to understand, recall, and execute simple, routine, repetitive operations and was capable of performing simple work. (R. 468). On November 1, 2010, Dr. Bharati Jhavari reviewed the record and affirmed the RFC of May 11, 2010. (R. 470-72).

On November 18, 2010, Ms. Embry saw Dr. Mohamed. She had some right side facial numbness, but no other new symptoms. She had pitting edema in her legs. She had a minimal impairment in recall and remote memory, and mild difficulty with calculation. Strength was 5/5 in all extremities. Sensation was normal. Gait was normal but slow. There was still mild decreased rapid repetitive movement in the mildly impaired fine motor movement in the left hand. (R. 475).

On December 7, 2010, Ms. Embry sought treatment after blacking out and falling down a flight of stairs. (R. 522, 524). She was still able to walk and was taking Motrin for pain. (R. 522). There was no indication of major or minor depression and her functionality was not impaired. (R. 522-23). She had decreased strength in her left extremities. (R. 524). Neurological exam was essentially normal, although reflexes were somewhat decreased on the right side. (R. 524).

Ms. Embry had an angiogram on January 11, 2011, to follow up on her EDAS procedure. (R. 502). It revealed very good flow into the middle cerebral artery territory, but the presence of Moyamoya pattern on the left side that ...

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