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Shewmake v. Colvin

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

November 28, 2016

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


          MARY M. ROWLAND United States Magistrate Judge

         Plaintiff James Robert Shewmake Jr. filed this action seeking reversal of the final decision of the Commissioner of Social Security denying his application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act (Act). 42 U.S.C. §§ 405(g), 423 et seq., 1381 et seq. The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c), and filed cross motions for summary judgment. For the reasons stated below, the case is remanded for further proceedings consistent with this Opinion.


         To recover DIB or SSI, [1] a claimant must establish that he or she is disabled within the meaning of the Act. York v. Massanari, 155 F.Supp.2d 973, 977 (N.D. Ill. 2001). A person is disabled if he or she is unable to perform “any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. §§ 404.1505(a), 416.905(a). In determining whether a claimant suffers from a disability, the Commissioner conducts a standard five-step inquiry:

1. Is the claimant presently unemployed?
2. Does the claimant have a severe medically determinable physical or mental impairment that interferes with basic work-related activities and is expected to last at least 12 months?
3. Does the impairment meet or equal one of a list of specific impairments enumerated in the regulations?
4. Is the claimant unable to perform his or her former occupation?
5. Is the claimant unable to perform any other work?

20 C.F.R. §§ 404.1509, 404.1520, 416.909, 416.920; see Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). “An affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than Step 3, ends the inquiry and leads to a determination that a claimant is not disabled.” Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985). “The burden of proof is on the claimant through step four; only at step five does the burden shift to the Commissioner.” Clifford, 227 F.3d at 868.


         Plaintiff applied for DIB and SSI on May 12, 2010, alleging that he became disabled on June 1, 2009, because of Crohn's disease, [2] diabetes, high blood pressure, eye condition, hepatitis C, and stress-related anxiety. (R. at 35, 97, 108, 212-23). The application was denied initially and on reconsideration, after which Plaintiff filed a timely request for a hearing. (Id. at 35, 97-100, 137). On September 27, 2011, Plaintiff, represented by counsel, testified at a hearing before an Administrative Law Judge (ALJ). (Id. at 35, 52-96). The ALJ also heard testimony from Grace Gian-forte, a vocational expert (VE). (Id. at 35, 52-96, 198-99).

         The ALJ denied Plaintiff's request for benefits on November 7, 2011. (R. at 35- 45). The Appeals Council (AC) denied Plaintiff's request for review on July 19, 2012. (R. at 1-7). On June 12, 2014, this court reversed and remanded the ALJ's decision. Shewmake v. Colvin, No. 12 CV 6339, 2014 WL 2619659, at *1 (N.D. Ill. June 12, 2014) (Kim, J.).

         In the meantime, on August 14, 2012, Plaintiff filed a subsequent application for DIB, alleging disability beginning on November 8, 2011. (R. at 791, 849, 893). On September 13, 2013, the ALJ issued a favorable determination, finding Plaintiff disabled commencing November 8, 2011. (Id. at 791, 849-59, 893). On September 2, 2014, the AC affirmed the disability decision beginning November 8, 2011, but determined that the period prior to November 8, 2011, required further administra- tive proceedings. (Id. at 791, 893). Therefore, the AC vacated the ALJ's November 7, 2011 decision and remanded to an ALJ for further proceedings consistent with the June 12, 2014 Opinion of this court. (Id.). On March 16, 2015, Plaintiff, represented by counsel, testified at a second hearing before an Administrative Law Judge (ALJ). (Id. at 791, 1070-105). The ALJ also heard testimony from GleeAnn L. Kehr, a vocational expert (VE). (Id. at 791, 1023, 1098-105).

         The ALJ again denied Plaintiff's request for benefits on April 2, 2015. (R. at 791- 808). Applying the five-step sequential evaluation process, the ALJ found, at step one, that Plaintiff had not engaged in substantial gainful activity from June 1, 2009, the alleged onset date, through November 7, 2011 (the relevant period). (Id. at 793-94). At step two, the ALJ found that during the relevant period, Plaintiff's Crohn's disease, hepatitis C, a spinal disorder, diabetes mellitus, and mood and anxiety disorders were severe impairments. (Id. at 794-95). At step three, the ALJ determined that during the relevant period, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any of the listings enumerated in the regulations. (Id. at 795-97).

         The ALJ then assessed Plaintiff's residual functional capacity (RFC)[3] and determined that during the relevant period, he had the capacity to perform sedentary work, except that Plaintiff

was further limited to work requiring no climbing of ladders, ropes, and scaffolds, no more than frequent balancing, stooping, kneeling, crouching, and crawling, could tolerate occasional exposure to hazards and could frequently operate motor vehicles. Additionally, [Plaintiff] was limited to work comprised of simple, routine, repetitive tasks with a relaxed or flexible production rate requirement in the shift.

(R. at 798). Based on Plaintiff's RFC and the VE's testimony, the ALJ determined at step four that during the relevant period, Plaintiff was unable to perform any past relevant work. (Id. at 806). At step five, based on Plaintiff's RFC, age, education, and the VE's testimony, the ALJ determined that during the relevant period, there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed such as address clerk, account clerk, and telephone clerk. (Id. at 806-07). Accordingly, the ALJ concluded that during the period of June 1, 2009, through November 7, 2011, Plaintiff was not suffering from a disability, as defined by the Act. (Id. at 807-08).

         Plaintiff did not file written exceptions with the AC, and the AC did not review the ALJ's decision on its own. (Mot. 2). Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. 20 C.F.R. §§ 404.984(d), 416.1484(d).


         Judicial review of the Commissioner's final decision is authorized by § 405(g) of the SSA. In reviewing this decision, the Court may not engage in its own analysis of whether the plaintiff is severely impaired as defined by the Social Security Regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Nor may it “reweigh evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute [its] own judgment for that of the Commissioner.” Id. The Court's task is “limited to determining whether the ALJ's factual findings are supported by substantial evidence.” Id. (citing § 405(g)). Evidence is considered substantial “if a reasonable person would accept it as adequate to support a conclusion.” Indoranto v. Barnhart, 374 F.3d 470, 473 (7th Cir. 2004); see Moore v. Colvin, 743 F.3d 1118, 1120-21 (7th Cir. 2014) (“We will uphold the ALJ's decision if it is supported by substantial evidence, that is, such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”) (citation omitted). “Substantial evidence must be more than a scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). “In addition to relying on substantial evidence, the ALJ must also explain his analysis of the evidence with enough detail and clarity to permit meaningful appellate review.” Briscoe ex rel. Taylor v. Barn-hart, 425 F.3d 345, 351 (7th Cir. 2005).

         Although this Court accords great deference to the ALJ's determination, it “must do more than merely rubber stamp the ALJ's decision.” Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (citation omitted). “This deferential standard of review is weighted in favor of upholding the ALJ's decision, but it does not mean that we scour the record for supportive evidence or rack our brains for reasons to uphold the ALJ's decision. Rather, the ALJ must identify the relevant evidence and build a ‘logical bridge' between that evidence and the ultimate determination.” Moon v. Colvin, 763 F.3d 718, 721 (7th Cir. 2014). Where the Commissioner's decision “lacks eviden- tiary support or is so poorly articulated as to prevent meaningful review, the case must be remanded.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).


         Plaintiff began complaining of diarrhea, nausea, and vomiting in July 2009. (R. at 471). He was having profuse, bloody diarrhea, with about 15 loose bowel movements daily. (Id. at 352-53). On July 28, 2009, after three weeks of chronic diarrhea, he was admitted to Provena Saint Joseph Medical Hospital because of bloody diarrhea, renal failure, and dehydration, and was kept for observation and treatment until July 31. (Id. at 349, 355). Flashade M. Kareem, M.D., diagnosed bloody diarrhea, most likely inflammatory bowel disease (IBD), acute renal failure, insulin dependent diabetes mellitus, and hypertension, and prescribed Asacol and Flagyl.[4](Id. at 349).

         On July 16, 2009, after seeing Plaintiff every one to three months for almost three years for a variety of ailments, Linda Hushaw, APN, [5] completed a Medical Source Statement. (R. at 627-30). Plaintiff's symptoms included chronic fatigue, nausea/vomiting, abdominal pain, recurrent/persistent diarrhea, bowel incontinence, and weight loss. (Id. at 627). Hushaw opined that Plaintiff was incapable of even low-stress jobs because of frequent Crohn's disease flare-ups and hospitaliza-tions. (Id. at 628). She also opined that Plaintiff needs to take unscheduled breaks every hour due to pain, fatigue, and diarrhea. (Id. at 629).

         On August 14, 2009, Plaintiff denied any diarrhea since he was discharged from the hospital. (R. at 465). A physical examination of his abdomen was unremarkable. (Id. at 466). Laura Neilsen, PAC, [6] later co-signed by Yatin Shah, M.D., [7] diagnosed ulcerative colitis, continued Asacol, and recommended that Plaintiff avoid spicy, fatty, and gas-producing foods, and other dietary triggers. (Id. at 467). On October 7, Neilsen prescribed ranitidine, [8] recommended that Plaintiff avoid spicy, fatty, gas-producing, and lactose-containing foods, and referred him to a gastroenterologist. (Id. at 463).

         On February 2, 2010, a capsule endoscopy found only a few small erosions. (R. at 392). Kamran Ayub, M.D., noted that Plaintiff was doing well on Asacol. (Id. at 396). On March 4, Plaintiff complained of diarrhea, along with episodic abdominal pain not controlled by his medications, for which he was prescribed Norco.[9] (Id. at 446, 448). On April 6, Plaintiff reported a flare-up in his ulcerative colitis after eating peanuts and deviled eggs and requested a pain medication for his chronic ab- dominal discomfort. (Id. at 442). At the gastroenterologist's recommendation, the Norco dosage was increased and Florastor was prescribed.[10] (Id. at 442, 445). On May 6, Plaintiff reported an improvement in his abdominal pain and cramping but increased fatigue and nausea, for which promethazine was prescribed. (Id. at 438, 440). Around this time, Dr. Hamad prescribed Entocort for Plaintiff's Crohn's dis-ease.[11] (Id. at 438).

         On May 8, 2010, Plaintiff was hospitalized, complaining of frequent diarrhea with occasional bloody stools, uncontrolled nausea, and vomiting over the prior two weeks. (R. at 405, 407, 435). Ramalingappa Mukunda, M.D., assessed dehydration from Crohn's disease, diarrhea with exacerbation, diabetes mellitus, and hypertension. (Id. at 406). Plaintiff was treated with steroids, and after his symptoms improved, he was released with a referral to a gastroenterologist. (Id. at 404).

         On June 3, 2010, Plaintiff complained of diarrhea and fatigue but denied nausea and vomiting. (R. at 435-36). On examination, APN Hushaw found inflammatory changes to Plaintiff's colon and ulcerative colitis. (Id. at 435). She opined that Plaintiff was unable to return to work because of weakness and frequent bowel movements related to his Crohn's disease. (Id. at 435). On June 14, Hushaw referred Plaintiff to a pain clinic for chronic pain syndrome. (I ...

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