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Shewmake v. Colvin

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

June 12, 2014

CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, [1] Defendant.


YOUNG B. KIM, Magistrate Judge.

James Shewmake seeks disability insurance benefits ("DIB"), see 42 U.S.C. §§ 416(i), 423, claiming that he is unable to work because of his diabetes, Crohn's disease, Hepatitis C, and anxiety. After the Commissioner of the Social Security Administration denied his application, Shewmake filed this suit seeking judicial review. See 42 U.S.C. § 405(g). Before the court are the parties' cross-motions for summary judgment. For the following reasons, Shewmake's motion is granted to the extent that the case is remanded for further proceedings and the Commissioner's motion is denied:

Procedural History

Shewmake applied for DIB on May 12, 2010, claiming he became unable to work as of June 1, 2009. (Administrative Record ("A.R.") 35.) After his claims were denied initially and upon reconsideration, (id. at 108, 122), Shewmake sought and was granted a hearing before an administrative law judge ("ALJ"), (id. at 137-38). The ALJ held a hearing on September 27, 2011, at which Shewmake and a vocational expert provided testimony. (Id. at 54.) On November 7, 2011, the ALJ issued a decision finding that Shewmake is not disabled within the meaning of the Social Security Act and denying his DIB claim. (Id. at 32-51.) When the Appeals Council denied Shewmake's request for review, (id. at 1-4), the ALJ's denial of benefits became the final decision of the Commissioner, see O'Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010). On August 10, 2012, Shewmake filed the current suit seeking judicial review of the Commissioner's decision. See 42 U.S.C. § 405(g); (R. 3). The parties have consented to the jurisdiction of this court. See 28 U.S.C. § 636(c); (R. 8).


Shewmake contracted Hepatitis C while serving in the Navy over 20 years ago, (A.R. 465), was diagnosed with diabetes more than 10 years ago, (id. at 57), and has suffered from anxiety disorder since at least July 2009, (id.). He was also diagnosed with Crohn's disease during the summer of 2009. (Id. at 359.) A high school graduate, Shewmake was a construction worker for nearly 20 years until he was let go from his job in November 2008. (Id. at 248, 268, 332.) He was 44 years old when he stopped working, is currently unemployed, and lives with his wife and their two children. (Id. at 60-61.) Shewmake presented both documentary and testimonial evidence in support of his claim.

A. Medical Evidence - Physical Health

The relevant medical record begins in July 2009 when Shewmake sought treatment at Primary Care Joliet ("PCJ"). (A.R. 468.) Shewmake initially was seen by Laura Neilsen, a physician's assistant, and during later visits was treated by Linda Hushaw, a nurse practitioner ("NP"). (See, e.g., id. at 457, 585.) Dr. Yatin Shah, an internal medicine doctor at PCJ, sometimes co-signed Shewmake's medical notes. (See, e.g., id.) When Shewmake visited PCJ in July 2009, he reported having severe and frequent diarrhea ever since going on a camping trip a couple weeks earlier. (Id. at 352.) He was given antidiarrheal medications, (id.), but ended up in the emergency room at Provena Saint Joseph Medical Center a week later with bloody diarrhea and renal failure, (id. at 349). At that time he reported having four bowel movements a day, abdominal cramping, and weight loss of 32 pounds over the previous two weeks. (Id. at 353.) A colonoscopy and biopsy confirmed that Shewmake had pancolitis (a severe form of ulcerative colitis) and Crohn's disease. (Id. at 359.)

During a follow-up visit to PCJ in early August 2009, Shewmake reported that his diarrhea had ceased. (Id. at 465.) However, during subsequent visits in October and November 2009, he reported having diarrhea again and was referred to a gastroenterologist. (Id. at 457, 461.) In December 2009 and February 2010, Shewmake saw Dr. Kamran Ayub at Southwest Gastroenterology, who recommended an inflammatory bowel disease ("IBD") panel and capsule enterography testing. (Id. at 396-97.) The capsule endoscopy report noted "[f]ew small erosions only." (Id. at 392.)

Meanwhile Shewmake continued to visit PCJ from January through June 2010 on a monthly basis. Shewmake complained of diarrhea, fatigue, and weight loss from January to April 2010. (Id. at 443, 446, 449, 453.) During an April 2010 visit NP Hushaw noted that Shewmake experienced a recent flare-up in his ulcerative colitis symptoms after eating peanuts and deviled eggs, and that he ate pancakes with syrup and sweetened iced tea the day of his visit. (Id. at 442-44.) NP Hushaw recommended that he aim to exercise for 30 minutes three to five days per week, and that he cut back on sodium, fast food, and foods high in protein. (Id. at 444.)

Shewmake went to the emergency room at Silver Cross Hospital in May 2010 complaining of persistent diarrhea. (Id. at 404.) He was given steroids, which improved his symptoms, and was discharged in stable condition. (Id.) But he continued to report diarrhea, fatigue, and weight loss through June 2010, and NP Hushaw again recommended that he stick to a healthy diet and cut back on foods high in calories, fat, and sugar. (Id. at 429, 432, 436.) Shewmake went back to PCJ for a follow-up visit in August 2010, during which he reported having recently gone swimming in a lake. (Id. at 590.) He also complained of diarrhea, fatigue, and weight loss. (Id. at 591.)

Later that August, Dr. Sarat Yalamanchili conducted a 40-minute examination of Shewmake at the request of the Illinois Bureau of Disability Determination Services ("DDS"). (Id. at 537-40.) Dr. Yalamanchili noted that Shewmake had a history of diarrhea from Crohn's disease as well as a history of Hepatitis C and poorly controlled blood-sugar levels. (Id. at 538, 540.) He observed that Shewmake was in no acute distress, his abdomen was "soft, nontender without organomegaly [abnormal enlargement] or masses palpable[, ]" and his bowel sounds were "normoactive." (Id.) Dr. Yalamanchili noted that Shewmake had some difficulty with squatting and arising, and that his symptoms included "inability to work because of his recurrent diarrhea." (Id. at 539-40.) A few days later in September 2010, Shewmake saw Dr. Mary DeGroot, a podiatrist at DeGroot Foot and Ankle Clinic, for diabetic foot care and reported having gone on a "pretty rugged" camping trip which left two of his toenails discolored. (Id. at 507.)

Later that September, Dr. Francis Vincent, a medical consultant, completed a Physical Residual Functional Capacity ("RFC") Assessment. (Id. at 529-36.) He opined that Shewmake could lift 20 pounds occasionally and 10 pounds frequently, stand or walk for about six hours in an eight-hour workday, sit for about six hours in an eight-hour workday, and perform unlimited pushing and pulling. (Id. at 530.) Dr. Vincent noted that Shewmake could frequently climb ramps or stairs and balance, but because of low-back pain could only occasionally climb ladders, ropes, or scaffolds, stoop, kneel, crouch, and crawl. (Id. at 531.) Dr. Vincent concluded that Shewmake had no manipulative, visual, communicative, or environmental limitations, except that he should avoid concentrated exposure to hazards. (Id. at 532-33.) He believed Shewmake's statements were only "partially credible in light of the overall evidence" and that his claimed limitations "exceed[ed] that supported by the objective medical findings[.]" (Id. at 536.)

From September 2010 through September 2011, Shewmake continued to make monthly visits to PCJ and had several appointments with various specialists. During a September 2010 visit to PCJ he reported no exacerbations in Crohn's symptoms and denied having diarrhea. (Id. at 716-17.) Then in October 2010, Shewmake saw Dr. Ayub for a Crohn's flare-up and reported having diarrhea five to ten times per day. (Id. at 556.) Dr. Ayub wrote a note stating that Shewmake "at times requires frequent episodes to [the] bathroom" and recommended that he get a colonoscopy. (Id. at 550, 557.) The next day Shewmake again went to the emergency room at Silver Cross Hospital complaining of abdominal pain. (Id. at 565.) He also reported that he was constipated. (Id. at 567.) X-rays showed large amounts of retained fecal debris, but without any evidence of bowel obstruction. (Id. at 565.)

The following week in October 2010, Shewmake visited PCJ and NP Hushaw noted that Shewmake wanted a "second opinion since he does not want to have recommended surgery[, ]" presumably to address his Crohn's. (Id. at 583-84.) NP Hushaw's notes contain no mention of diarrhea for that day, or for his following appointment on November 15, 2010. (See id. at 583-85.) On November 16, 2010, Shewmake had a colonoscopy and was treated by Dr. Nikhil Bhargava, a gastroenterologist, on November 29, 2010. (Id. at 619-21.) The colonoscopy showed active proctitis, or inflammation of the rectum's lining, and extraintestinal manifestations of IBD. (Id. at 622.) Dr. Bhargava noted that Shewmake was experiencing "approximately 3 to 10 bowel movements per day" and had "three flares in the last two years[.]" (Id. at 621.) He also reported that Shewmake was drinking two to three cups of iced tea per day. (Id.) Dr. Bhargava observed that Shewmake's abdomen was non-tender and non-distended, and that his bowel sounds were positive. (Id.)

From December 2010 through April 2011, Shewmake denied having or made no mention of diarrhea during his visits to PCJ. (Id. at 695, 697, 701, 704, 707.) In that time period Shewmake was examined further by state consultants and his own medical providers. In January 2011, Dr. David Mack completed an Illinois Request for Medical Advice form affirming Dr. Vincent's September 2010 Physical RFC Assessment. (Id. at 623-25.) According to the form, Shewmake alleged his condition had worsened since the initial assessment in that his bowel movements and abdominal cramps became more frequent. (Id. at 625.) After listing the additional records he considered on review, Dr. Mack concluded that Shewmake's claims were still only "partially credible" and that "objective medical evidence" did not support the severity of his statements. (Id.)

In a February 2011 letter, Dr. Bhargava wrote that Shewmake was "still having three to five bowel movements per day" but denied having weight loss. (Id. at 673.) A physical examination revealed no acute distress and a non-tender, non-distended abdomen with positive bowel sounds. (Id.) Shewmake's labs showed his small bowel follow-through was "unremarkable." (Id.) Dr. Bhargava noted that Shewmake's diarrhea could be the result of Crohn's exacerbation, irritable bowel syndrome ("IBS"), or narcotic-related bowel issues. (Id.)

In March 2011, NP Hushaw completed a Functional Capacity Questionnaire and a Medical Source Statement ("MSS") in which she stated that Shewmake suffers from "recurrent/persistent diarrhea, " abdominal pain, weight loss, and bowel incontinence. (Id. at 627.) She opined that he could sit for three hours and stand or walk for three hours in an eight-hour workday, (id. at 633), but that he could only sit for 30 minutes at a time and stand for 15 minutes at a time in a competitive work situation, (id. at 628). She stated that he was "[i]ncapable of even low stress jobs" because of frequent flare-ups and hospitalization and that his pain would frequently be severe enough to interfere with the attention and concentration needed to perform simple work tasks. (Id. at 628, 633.) NP Hushaw opined that Shewmake would need to take eight unscheduled breaks throughout the day because of pain, fatigue, and diarrhea, and could not work an eight-hour workday. (Id. at 629.) She further concluded that he would miss more than four days of work per month because of his impairments. (Id. at 630.)

Later in March 2011, Dr. Bhargava performed another colonoscopy on Shewmake and noted symptoms of Crohn's disease and pseudopolyps, but he found ulcerative colitis "very unlikely." (Id. at 667.) He noted that Shewmake had three to four non-bloody bowel movements per day, and that his abdominal pain was "reasonably well controlled." (Id. at 672.) He observed that Shewmake's abdomen was non-tender, non-distended, and produced positive bowel sounds. (Id.) Dr. Bhargava suspected Shewmake might have IBS along with IBD. (Id.)

In May 2011 Shewmake complained of diarrhea and abdominal pain during a visit to PCJ, (id. at 692), but in the months that followed his symptoms appeared to lessen or become milder. In June 2011, Dr. Bhargava wrote a letter reporting that Shewmake had three to five non-bloody bowel movements per day. (Id. at 671.) Dr. Bhargava observed that Shewmake's abdomen appeared normal and concluded that his Crohn's disease had only "mild symptoms." (Id.) Shewmake denied or made no mention of having diarrhea in June and July 2011 visits to PCJ. (Id. at 685, 689.) Dr. Nancy Reau, a gastroenterologist in Dr. Bhargava's group, wrote in a July 2011 letter that Shewmake's Crohn's disease was "quiescent." (Id. at 758.) Dr. Wassim Harake, an endocrinologist, reported in July 2011 and August 2011 that diarrhea was "not present" when reviewing Shewmake's gastrointestinal system. (Id. at 776, 779.)

Shewmake also denied or made no mention of having diarrhea during August and September 2011 visits to PCJ and reported both times that he exercises two to three times per week. (Id. at 679, 683.) In August 2011, Dr. Bhargava wrote that Shewmake had three to five "well-formed bowel movements." (Id. at 756.) Dr. Bhargava also suspected that Shewmake's Crohn's disease was "secondary to diabetes, " and that his frequent bowel movements were actually due to diabetes because "endoscopically he appeared mild to moderate." (Id.)

In September 2011, Dr. Shah signed an MSS stating that Shewmake could only sit and stand or walk for less than two hours a day. (Id. at 766.) He concluded that Shewmake was capable of tolerating only a low level of work stress because his "diarrhea causes anxiety and pain, " and that a higher level of stress "would exacerbate these symptoms." (Id. at 767.) According to Dr. Shah, Shewmake would miss work more than three times per month. (Id. at 768.)

B. Medical Evidence - Mental Health

Shewmake has never sought psychiatric treatment, but records from PCJ note he has a history of anxiety. (See, e.g., A.R. 432, 465, 471, 717.) During many visits NP Hushaw indicated Shewmake had decreased concentration or a depressed mood. (See, e.g., id. at 429, 436, 454.) NP Hushaw also wrote on several occasions that medications such as Xanax and Ativan provided ...

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