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Hughes v. Colvin

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

May 12, 2015

SHEILA M. HUGHES, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

JEFFREY COLE, Magistrate Judge.

The Plaintiff, Sheila M. Hughes, seeks review of the final decision of the Defendant, Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. § 1382c(a)(3)(A). Ms. Hughes asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming it.

I. PROCEDURAL HISTORY

Ms. Hughes applied for SSI on July 30, 2010, alleging disability since July 2, 2003 due to Chronic Obstructive Pulmonary Disease ("COPD"), sleep apnea, diabetes, depression, vision impairment and back pain. (Administrative Record ("R.") 15, 17, 24, 35). Her application was initially denied on December 13, 2010 and further denied upon reconsideration on December 2, 2011. (R. 15). Ms. Hughes made a timely request for hearing on January 12, 2012. (R. 15). A hearing was held and presided over by an Administrative Law Judge ("ALJ") on October 2, 2012 where Ms. Hughes, represented by counsel, testified (R. 15, 34-53). No medical personnel testified at the hearing. On November 28, 2012, the ALJ issued a decision denying her SSI claim. On February 12, 2014, the decision of the ALJ became the final decision of the Commissioner when the Appeals Council denied Ms. Hughes' request for review. (R. 1). Ms. Hughes then appealed the Commissioner's decision to District Court for judicial review 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).

Prior to the application at issue here, Ms. Hughes applied for SSI on October 18, 2006. (R. 15). That application was denied on March 7, 2007, denied again on August 10, 2007, and, after a hearing, that denial was affirmed on December 10, 2009. (R. 15).

II. THE EVIDENCE

A. The Vocational Evidence

Ms. Hughes was fifty-eight years old at the time of the ALJ's decision (R. 37). She lives with her adult daughter and young grandson. (R. 37-38). She completed high school and two years of college. (R. 37). Ms. Hughes previously worked as a parking lot attendant for Chicago State University in 2003, letting in students and staff to park their cars and then taking their payment when they left. (R. 18, 45). She lost this job after two weeks when she broke her foot and could not return "for a couple months." (R. 45). The school was unable to save the position for her. (R. 45).

Prior to that, Ms. Hughes also worked as an assistant security officer at Chicago Public Schools for approximately 10 years, which required her to maintain order in the school's hallways and break up any fights among the students, among other tasks. (R. 19, 48-49, 421). She left this position after needing to take too much time off due to having stomach surgery. (R. 365). Other positions held included time as a custodian for the post office and as a cashier in the 1980s, but neither position was for more than a year. (R. 365).

Ms. Hughes did find some part-time work after filing her application, providing home health care to senior citizens for eight hours a week but resigned after only three months. (R. 17, 41-42). Other than this work with senior citizens, Ms. Hughes has not worked since July 2, 2003. (R. 15, 17, 421).

B. The Medical Evidence

1. Dr. Carlton

On November 15, 2010, Ms. Hughes saw Dr. Charles Carlton for an Agency consultative examination. (R. 352). Dr. Carlton reviewed records from Cook County hospital between the dates of March 30, 2010 and July 6, 2010 and spent approximately 30 minutes with her. (R. 352). Dr. Carlton felt Ms. Hughes was reliable. (R. 352). Ms. Hughes reported a history of depression and noted the treatment she was receiving from the mental health center. (R. 355). Dr. Carlton noted she had a flat affect, but was alert and oriented as to time, place and person. (R. 355). He also noted that she could perform basic calculations and opined that she was capable of being responsible for managing her funds. (R. 355).

Dr. Carlton found that Ms. Hughes could go from sitting to standing without assistance and walk greater than fifty feet, even though her gait was rigid. (R. 353, 356). Her abdomen was soft, non-tender and with normal activity in bowel sounds. (R. 354). He found there was pain in her left knee, but other joints had painless range of motion and her lumbar spine showed a decreased range of motion. (R. 354-55, 359). He noted that she had moderate difficulty in both walking on her toes and squatting and arising, while there was mild difficulty with walking on her heels and tandem walking. (R. 357). He found no difficulty in the grip and motor skills of her hands. (R. 355, 357). He opined that she could safely lift, carry and handle objects over 20 pounds with both hands from her waist level and above. (R. 356).

2. Dr. Morrin

Also on November 15, 2010, the agency arranged for Ms. Hughes to see Dr. Patricia Morrin, Psy.D. for a mental status evaluation. (R. 364). Dr. Morrin spent approximately 30 minutes with Ms. Hughes and reviewed three documents relating to Ms. Hughes: Community Mental Health Consult Adult Mental Health Assessment dated June 11, 2007, Community Mental Health Consult Mental Services report dated April 23, 2010, and Community Mental Health Consult Mental Services report dated July 27, 2010. (R. 364). Dr. Morrin noted good hygiene and clean clothes, as well as good eye contact, good effort and a cooperative and polite attitude. (R. 364). Ms. Hughes arrived fifty minutes late and alone. (R. 364). Ms. Hughes reported feeling sad two to three times a week and experiencing anxiety about her own death for the last four years, but denied any thoughts of suicide. (R. 364-65). Her speech was relevant and coherent with a clear articulation, but her affect and mood were "slightly blunted" and "moderately depressed." (R. 366). Her thought process was "intact, " but she would often think her name was being called or would see something "flash across." (R. 366).

Dr. Morrin reported that Ms. Hughes lives with her daughter and grandson. (R. 365). Ms. Hughes said she helps her daughter out with her grandson. (R. 366). Ms. Hughes can dress and clean herself, but sometimes requires assistance because her legs will have trouble with a slippery bathtub. (R. 365). Ms. Hughes had no set wake-up, meal, or bed times and ate three to four meals per day. (R. 366). During the day, Ms. Hughes washes dishes, sweeps and prepares meals on the stove and in the evening she watches TV or reads. (R. 365-66). Ms. Hughes has been divorced for over 30 years. (R. 365). She has three sons, in addition to her daughter, and two siblings that all live in surrounding areas. (R. 365). She communicated with these family members regularly and they got along well. (R. 365). Her relationship with her daughter was "okay." (R. 365). She also maintained relationships with some long term friends and knew her neighbors well. (R. 365). She got along well with coworkers when she was working. (R. 365). She usually takes the bus and said she does not drive. (R. 366). Dr. Morrin diagnosed Ms. Hughes with "depressive disorder, [not otherwise specified]." (R. 366).

3. Dr. Mallick

On April 20, 2011, Ms. Hughes was seen by Dr. Naveed Mallick for a general exam. (R. 403). Dr. Mallick noted she had intermittent leg pain and stiffness on her right side. (R. 403). He found no clear bulge of her vertebrae and referred her to the plain clinic as well as a physical therapist for her lower right back pain. (R. 404). Ms. Hughes saw Physical Therapist Laurie Webb on July 27, 2011 pursuant to Dr. Mallick's referral for pain in her lower back and right leg.[1] (R. 405). Ms. Webb identified that Ms. Hughes had a history of arthritis, required assistance in her "prior functioning level, " required used of a cane at home, and had an impaired endurance. (R. 406). Ms. Webb recommended a home exercise program to help with Ms. Hughes's "sciatica exacerbation." (R. 407). On August 17, 2011, Ms. Hughes again saw Dr. Mallick who noted she still had lower back pain, but felt it had improved. (R. 432).

4. Dr. Phillips

Ms. Hughes visited Dr. Laron Philips on October 31, 2011 for another consultative psychiatric evaluation. (R. 420). Ms. Hughes told Dr. Phillips she suffered from symptoms of depression and anxiety, such as helpless/hopelessness, tearfulness, insomnia, low energy, poor concentration, decreased appetite, and passive suicidal ideation. (R. 420). She indicated her symptoms started when she was let go from Chicago State in 2003 and the prolonged effect of unemployment has made her feel useless and unproductive. (R. 420). She reported insomnia that caused her to fall asleep during the day to the point where her daily living was adversely affected. (R. 420). She also reported taking Zoloft and suffering from sleep apnea, irritable bowel syndrome and diabetes. (R. 421). Her average day was spent at home with little routine or structure. (R. 421). She told Dr. Phillips about her family, including her siblings, children and grandson. (R. 421). She has a family history of depression and bi-polar disorder. (R. 421).

Dr. Phillips noted relevant answers to questions, neat grooming, appropriate dress, and cooperative, appropriate behavior. (R. 421). He found her speech clear, conversation adequate and no signs of delusions, confusions or hallucinations during the consultation. (R. 421). Her mood was "down" and affect was "dysphoric with a saddened quality." (R. 421).

Ms. Hughes identified the correct date, her correct birthdate and the correct location of Dr. Phillips's office. (R. 422). She provided a topical news item, identified former presidents and cities, performed basic math skills, demonstrated abstract thinking, identified the similarities between apples and oranges, had "adequate judgment and insight, " and did not show an impaired cognitive function. (R. 422).

Dr. Philips found that her anxiety and depressive syndromes caused a moderate impairment in her "social, occupational, and interpersonal functioning." (R. 422). He diagnosed her with "Major Depressive Disorder, recurrent, moderate, " anxiety, sleep apnea, irritable bowel syndrome and diabetes. (R. 422-23).

5. Dr. Hudspeth

Dr. Donna Hudspeth, Psy.D., prepared a residual functioning capacity (RFC) assessment on behalf of the Agency based upon treating sources, the consultative examination report of Dr. Morrin, and previous office observations, but did not perform a consultative examination. (R. 381). She reviewed three treating sources: an intake at community mental health from June, 2007; a sleep study from Stroger Hospital from September, 2009; and records from UIC Hospital from 2006. (R. 381). Based upon these sources, Dr. Hudspeth found Ms. Hughes was moderately limited in certain abilities, namely: understanding, remembering and carrying out detailed instructions; interacting appropriately with the general public; responding appropriately to changes in the work setting; and setting realistic goals or making plans independent of others. (R. 392).

In her Functional Capacity Assessment, Dr. Hudspeth found Ms. Hughes to be depressed and anxious and could perform "simple one- and two-step tasks in the work environment within physical limitations." (R. 392). She also recommended that Ms. Hughes not have any dealings with the public, although she could interact with supervisors and co-workers and would respond to the structure of a work environment. (R. 392). Dr. Hudspeth also prepared a Psychiatric Review Technique that opined Ms. Hughes had a moderate limitation in "concentration, persistence and pace" and mild limitations in "daily living" and "social functioning." (R. 379).

6. Dr. Panagos

On October 18, 2011, Ms. Hughes met with Dr. Alexander Panagos, M.D. for yet another consultative examination. (R. 415). Ms. Hughes stopped wearing her CPAP for her sleep apnea and was experiencing daytime somnolence. (R. 415). Ms. Hughes reported depression, hallucinations (both auditory and visual) and diabetes for which she took an ace inhibitor. (R. 416). Ms. Hughes reported experiencing back pain "for the better part of ten years" and she experienced it all day, every day, especially when the weather changed. (R. 415). The pain was a "six or seven" out of ten in severity. (R. 416). Dr. Panagos reported she could walk less than fifty feet or climb five or six stairs with a cane and could not run. (R. 416, 417). Dr. Panagos noted no deformities in her back or lumbar curvature. (R. 417). Although there was tenderness in her lower lumbar vertebrae region, there was a normal range of motion and no trauma. (R. 417). She did not have difficulty getting on and off the table or up from the chair. (R. 417).

Ms. Hughes was alert and oriented, her memory was intact, and she had good concentration and attention span. (R. 418). She was polite and had a good demeanor (R. 418). Her hygiene and dress were acceptable and appropriate. (R. 418). Dr. Panagos noted five clinical impressions, including sleep apnea, irritable bowel syndrome, depression and diabetes. (R. 418).

7. Dr. Dow

Dr. Victoria Dow, M.D. provided a Physical Residual Functional Capacity Assessment based on the evidence in Ms. Hughes's file. (R. 384). Dr. Dow determined Ms. Hughes could lift or carry up to fifty pounds occasionally and twenty five pounds frequently. (R. 384). Dr. Dow also opined Ms. Hughes could sit for six hours in an eight-hour span and was unlimited in pushing or pulling. (R. 384). Dr. Dow found no postural, manipulative, visual, or communicative limitations. (R. 385-87). Dr. Dow recommended Ms. Hughes avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation and hazards such as machinery and heights. (R. 387). Dr. Dow noted that her opinion conflicted with that of Dr. Carlton, a consultative examiner, about how much weight Ms. Hughes could safely lift, as Dr. Carlton recommended only twenty pounds. (R. 389). Dr. Dow did not give controlling weight to Dr. Carlton because he was only an examining source and there was no objective evidence to support his assessment. (R. 389).

C. The Administrative Hearing Testimony

Ms. Hughes, the only witness to testify at the Administrative Hearing, (R. 15, 34-53), testified that, although she used to, she does not take care of her grandson despite living with him and her daughter. (R. 39). She estimated she could walk "about a block" and stand in one place anywhere from five to ten minutes, but no more because of her pain and stiffness. (R. 39, 49). Anything more than a block required her to stop and rest due to pain and fatigue. (R. 49-50). She could sit comfortably in a chair for 45 minutes to an hour. (R. 42). She claimed her internal physician, Dr. Mallick, prescribed her a cane a year before. (R. 39). The cane was not with her at the hearing, however, because she was running late and left it in the car in her haste. (R. 39). Otherwise, she used the cane both in and outside of her apartment. (R. 51-52).

Ms. Hughes testified that, prior to the closure of the Community Mental Health Center in July or August of 2012, she saw Dr. Bell for her depression three times over a six month period. (R. 39-40). Dr. Bell prescribed Zoloft, which she stopped taking about the same time as the center's closure when she ran out. (R. 40). The last time she saw Dr. Bell was right before the center closed. (R. 40). She claimed her internal physician indicated he would write her a prescription for Zoloft upon her next visit. (R. 40). Her depression led her to experience thoughts of her own death, as well as feelings of anxiety, agitation, and nervousness. (R. 51).

Other prescriptions included Metformin, Glipizide XL, Simvastatin, Enalapril, Pantoprazole, Ibuprofen, and Lantus insulin by other doctors. (R. 42-43). She took eighteen units of insulin and five milligrams of Enalapril per day. (R. 42-43). She testified that the Ibuprofen was prescribed by Dr. Mallick for back, hip and leg pain. (R. 43). She was prescribed an inhaler in the past, but was not at the time and had not used one since the spring of that year when she had bronchitis. (R. 46-47). She was prescribed Flonase. (R. 47). She had been diagnosed with "beginning stages" of cataracts, but there were no plans to operate on her eyes at the time. (R. 46).

Ms. Hughes was prescribed a CPAP machine for her sleep apnea, but she did not use it very frequently due to panic attacks. (R. 44). She napped or dozed off during the week due to her sleep apnea and diabetes, but the frequency varied. (R. 44, 48). Later, she testified to sleeping five or six times a day for five to ten minutes at a time. (R. 50). The sleep apnea led to problems in her concentration and focus. (R. 50). She was instructed by her eye ...


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