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Merriweather v. Colvin

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

October 17, 2016

Mae Merriweather, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          IAIN D. JOHNSTON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Mae Merriweather brings this action under 42 U.S.C. §405(g), challenging the denial of social security disability benefits.

         BACKGROUND

         In the spring of 2011, plaintiff filed her applications for disability insurance benefits and supplemental security income. She alleged a disability beginning January 1, 2009, and complained about high blood pressure, bronchitis, emphysema, an enlarged heart, thyroidism, and kidney problems. R. 48. Insofar as this Court can tell, there was no mention of what is now the central focus of this appeal-namely, dizziness and fainting.

         On May 19, 2011, Dr. Vidya Madala, an agency doctor, reviewed plaintiff's records and concluded that the above-listed problems did not render plaintiff disabled because she could, among other things, stand or walk six hours a day. R. 52.

         On Oct. 26, 2011, Dr. K.P. Ramchandani examined plaintiff and her medical records. Plaintiff presented with shortness of breath, lifting difficulties, a chronic cough, and lumbar pain. R. 611. There is again no mention in this report of any problems with dizziness and, in his review of systems, Dr. Ramchandani noted that plaintiff denied syncope (the medical term for fainting). R. 612. Dr. Ramchandani administered a pulmonary test measuring plaintiff's scores in technical areas such as FEV1 and FVC. He concluded that she had the following conditions: (1) “COPD in a patient with history of tobaccoism”; (2) “Arthralgia of the lumbar spine”; (3) “uncontrolled hypertension in a patient with history of proteinuria”; and (4) “Status-post thyroidectomy for multi nodular goiter currently on replacement therapy.” R. 613.

         On November 3, 2011, another agency doctor, Dr. Marion Panepinto, reached basically the same conclusion as did Dr. Madala earlier in the year. Ex. 8A.

         On August 8, 2013, a hearing was held before an administrative law judge (ALJ). Plaintiff was represented by her first counsel. Plaintiff was then 59 years old and was living with her daughters, one who was 33 years old and the other 15 years old. She testified that her problems began in January 2009, which was her onset date, when she began experiencing problems breathing and walking, as well as dizziness and fainting. She did not know what caused her breathing problems, although she had been diagnosed with emphysema. As of January 2009, she was getting dizziness “maybe twice a week” and the episodes lasted “about 30 seconds.” R. 16-17. At the date of the hearing (August 2013), she was having these episodes “about four times a month, ” and they still lasted about 30 seconds. R. 17.

         The ALJ next asked plaintiff about her recent work activity. In 2011 and 2012, she worked out of her home making and selling dinners to people who would come by and pick them up. She worked on average 25 hours a week and was on her feet most of the time. Also in this same period (i.e. 2011-12), she received unemployment compensation. From June 2008 to January 2011, she worked as a sales associate at Walmart, where she was on her feet the whole time except for breaks.

         The ALJ next questioned plaintiff about daily activities. She testified that she spent most of her day “laying down.” R. 23. She testified that she did not do any cooking and that her daughter prepared the meals. She last did laundry three or four months ago and last swept around the house six months ago. She went to the store about 3 times a month. Although she did not walk much, except for an occasional visit to the corner store, her doctors advised her to walk to keep her blood pressure down. She stated that she has her blood pressure checked when she goes to the doctor and at Walmart and that it has been “pretty steady.” R. 28. She was taking various medications for her blood pressure. When asked whether there were any periods in which she did not take her medications, she testified that there were “a few times like in 2011 that I really didn't have the money to really get them.” R. 30. She has been a smoker since age 11. She has uses an inhaler twice a day on average, but does not have use a nebulizer machine.

         Later in her testimony, plaintiff testified that she had an MRI recently and that her doctors told her that “the blacking out was strokes.” R. 36. This testimony seemed to surprise the ALJ as he interjected: “Wait a minute, nothing of that's put in the record. Are we missing something?” R. 37. Plaintiff responded that she went to the doctor just the previous week and that was when her doctor told her that she had “little bitty strokes.” Id. This information was apparently also new to plaintiff's counsel. The ALJ and counsel then agreed that these new records should be provided to the ALJ after the hearing. The ALJ seemed frustrated that the records were not provided earlier, telling plaintiff the following: “You got to give your lawyer a head's up, ma'am.” R. 38.

         About a month after the hearing, plaintiff's first counsel submitted the missing records from the Crusader Clinic along with a letter explaining what he considered to be significant about them. R. 340-41. Counsel focused on a spirometry study and argued that it showed that plaintiff had breathing problems. Counsel made no argument regarding strokes or fainting problems. Nor did counsel make any request a follow-up hearing or ask for a new medical opinion.

         On February 28, 2014, the ALJ issued his opinion finding plaintiff not disabled. The ALJ found that plaintiff had the following severe impairments: “arthralgias of lumbar spine and left shoulder, history of carpal tunnel syndrome, chronic obstructive pulmonary disease (COPD), hypertension, history of hyperthyroidism, status post thyroidectomy, history of chronic kidney disease (CKD), history of renal calculi, obesity (BMI 35) and tobacco abuse.” R. 92. The ALJ found that plaintiff did not meet any listing. He specifically considered whether she met Listing 3.02 that is based on FEV1 values and the spirometry test. Plaintiff does not challenge this finding on appeal. The ALJ found that plaintiff had the residual functional capacity to do light work subject to certain limitations. The ALJ's rationales are discussed below.

         On March 31, 2014, plaintiff's first counsel wrote a letter to the Agency seeking a review of the ALJ's decision. In this letter, counsel again focused solely on the issues “related to [plaintiff's] chronic obstructive pulmonary disease.” R. 207. There was no mention of any ...


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