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Fox v. Berryhill

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

February 27, 2017

SHELLEY FOX, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.


          HON. MARIA VALDEZ United States Magistrate Judge.

         This action was brought under 42 U.S.C. § 405(g) to review the final decision of the Commissioner of Social Security denying Plaintiff Shelley Fox's claims for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow, Plaintiff's motion for summary judgment [Doc. No. 18] is granted in part and denied in part, and the Commissioner's cross-motion for summary judgment [Doc. No. 26] is denied.



         In November 2012, Plaintiff filed claims for both DIB and SSI, alleging disability since June 4, 2011. (R. 204, 210.) The claims were denied initially and upon reconsideration, after which she timely requested a hearing before an Administrative Law Judge (“ALJ”), which was held on May 7, 2014 (R. 35-61.) Plaintiff personally appeared and testified at the hearing and was represented by counsel. (Id.) Vocational expert Glee Ann Kehr also testified. (Id.)

         On May 30, 2014, the ALJ denied Plaintiff's claims for both DIB and SSI finding her not disabled under the Social Security Act. (R. 19-29.) The Social Security Administration Appeals Council then denied Plaintiff's request for review, leaving the ALJ's decision as the final decision of the Commissioner and, therefore, reviewable by the District Court under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).


         A. Background

         Plaintiff was born on April 2, 1969 and was forty-five years old at the time of the May 2014 hearing. (R. 40, 204.) She completed high school and two years of college. (R. 233.) She has worked as an administrative assistant, a caterer, a support manager, and as a payroll assistant in human resources. (Id.) She has never been married, has no children, and has been living with her parents since 2012. (R. 40.)

         B. Medical Evidence

         1. Treating Sources

         Plaintiff had a neurological consultation with Nin Sun, M.D., Ph.D., on May 29, 2007, where she was assessed with left optic neuritis, and a history of multiple sclerosis (“MS”). (R. 345.) Her primary care physician, Uma Taparia, M.D., indicated in a progress note dated October 10, 2007, that Plaintiff was taking Rebif (Interferon beta-1a)[3] every other day for MS. (R. 340.)

         On April 5, 2010, Plaintiff began seeing neurologist Mathew McCoyd, M.D., who noted Plaintiff had a history of MS with two clinical events in 1990 and 2007. (R. 352-53.) Dr. McCloyd reviewed Plaintiff's last MRI from May 30, 2007 which revealed at least six large periventricular white matter lesions consistent with a history of MS. (R. 354-55.) Dr. McCoyd indicated that Plaintiff tolerated treatment well without side effects and had excellent medication compliance. (R. 353.) Plaintiff denied any clinical events since 2007 and denied double vision, blurred vision, gait imbalance, focal weakness or numbness and reported no psychiatric issues. (Id.)

         Plaintiff next saw Dr. McCoyd on March 29, 2012, where he indicated that Plaintiff was doing well clinically, tolerating medication with no side effects, and had no new focal symptoms. (R. 357.) At the next annual visit on April 15, 2013, however, Dr. McCoyd reported that Plaintiff complained of worsening generalized symptoms, a squeezing sensation in her legs, numbness in her arms for several months, hand numbness, legs stiffening when driving, and poor sleep. (R. 399.) The neurological exam revealed a mild attention tremor on the left with finger-to-nose testing, mild sway, and an inability to tandem walk. (R. 399-400.) Dr. McCoyd noted that the outside MRI, as compared to the 2007 MRI results, now showed at least one new brainstem lesion (right lateral pons near the middle cerebellar peduncle) and a new right periventricular lesion that was prominent. (R. 400.) Dr. McCoyd indicated that Plaintiff had clinically worsened since last seen and that he did not think Plaintiff could work full time due to her MS. (Id.)

         On May 2, 2013, Dr. McCoyd opined that Plaintiff met or equaled Listing 11.09 for MS with significant and persistent disorganization of motor function in two extremities, and a visual or mental impairment. (R. 383-86.) Dr. McCoyd concluded that Plaintiff had confirmed MS with a high radiographic disease burden and neurological symptoms (both diffuse and focal) consistent with the diagnosis. (R. 384.) To support his determination, Dr. McCoyd referred to an abnormal MRI with characteristic brain lesions. (R. 386.)

         Dr. McCoyd further concluded that Plaintiff could occasionally lift a maximum of six to ten pounds, frequently lift up to five pounds, walk less than two hours in an eight hour day, and sit less than four hours in an eight hour workday. (R. 385.) He noted non-exertional limitations that included never climbing ladders, ropes, or scaffolds and never balancing or crouching. (Id.) Dr. McCoyd indicated that Plaintiff could perform the remaining postural activities “occasionally.” (Id.) Dr. McCoyd wrote that Plaintiff had significant visual or communicative limitations due to optic neuritis, could not work in higher heat or humidity and had mild cognitive impairment due to MS. (Id.) He concluded that Plaintiff had not been able to work full time at any time from June 4, 2011 through the present. (Id.)

         2. ...

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