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Gary v. Berryhill

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

February 28, 2017

RICKEY L. GARY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the U.S. Social Security Administration[1], Defendant.


          Maria Valdez, 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 Rickey Gary's (“Plaintiff”) claim for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (“the Act”). 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. 12] is denied and the Commissioner's motion [Doc. No. 20] is granted.



         Plaintiff applied for SSI on January 4, 2010 alleging an onset date of June 1, 2006 due to loss of hearing in both ears, Human Immunodeficiency Virus (“HIV'), and a seizure disorder. (R. 270-72, 287.) The application was denied initially and again upon reconsideration. (R. 181-82.) After both denials, on November 9, 2010, Plaintiff filed an Administrative Law Judge (“ALJ”) hearing-request pursuant to 20 C.F.R. § 404.929 et seq. (R. 195-97.) The hearing was scheduled on December 2, 2011. (R. 54-180.) Plaintiff appeared for his hearing along with his attorney and testified before the ALJ. (Id.) A Vocational Expert (“VE”) was also present to offer testimony. (Id.) On March 14, 2013, the ALJ issued a written determination finding Plaintiff not disabled and therefore denied his SSI application. (R. 24-48.) The Appeals Council (“AC”) denied further review on October 8, 2014. (R. 1-3.)


         Plaintiff's medical records indicate that he was admitted to the University of Chicago Medical Center on October 27, 2008 due to a seizure. (R. 362.) It was noted that this was Plaintiff's first seizure. (R. 367, 370.) On October 22, 2009, Plaintiff was admitted to Provident Hospital for another seizure episode. (R. 388.) Hospital evaluations indicate that Plaintiff had a normal CT scan and other laboratory testing and he was released on the same day. (R. 377.) On January 27, 2010, Ms. Marcella Jackson, a family friend, completed a seizure description form for Plaintiff. (R. 312.) She wrote that Plaintiff has at most one seizure a month and stated that she has only witnessed one of Plaintiff's seizures on July 15, 2009. (Id.) She stated that when Plaintiff experiences a seizure, he bites his tongue and is disoriented or confused after the episode. (Id.) On January 28, 2010, Plaintiff's mother, Ms. Carolyn Gary, also completed a seizure description form. (R. 313.) She noted that she only witnessed one of Plaintiff's seizures in December 2009. (Id.) She stated that Plaintiff has at most one seizure per month. (Id.) She further noted that during an episode, Plaintiff will bite his tongue and bang his head on the table. (Id.)

         Plaintiff began seeking psychiatric help from the CORE Center at Stroger Hospital (“CORE Center”) since December 18, 2009 for depression. (R. 420.) During his initial screening, Plaintiff noted that he had many psychological stressors such as financial and familial problems. (Id.) He reported lacking sleep. (Id.) After the mental status exam, the doctor noted that Plaintiff's judgment and insight were poor, however, he was at minimal suicidal risk. (R. 421.) Plaintiff continued to visit the CORE Center throughout 2010. (R. 424-30.) On June 18, 2010 it was noted that Plaintiff no longer suffered from seizures. (R. 430.) Plaintiff did not return to the CORE Center for some time but on April 19, 2011, Plaintiff returned and underwent another psychosocial screening because he felt that his depressive symptoms were returning. (R. 532.) After a medical evaluation, the attending physician found that Plaintiff had minimal suicide risk and had good judgment and insight. (R. 533.)

         On May 22, 2010, Dr. Elizabeth Kuester completed a Psychiatric Review Technique Form (“PRTF”) in which she evaluated Plaintiff's affective disorder under listing 12.04 and his substance addiction disorder under listing 12.09. (R. 449-62.) With regard to functional limitations, Dr. Kuester noted that Plaintiff had mild limitations in the areas of social functioning, activities of daily living, and maintaining concentration, persistence, and pace. (R. 459.) Dr. Kuester noted that the medical evidence does not support Plaintiff's allegations regarding his mental impairments, as they tend to suggest minimal treatment, mild limitations in social functioning, as well as a lack of severe psychiatric restrictions. (R. 461.)

         In May 1, 2010, Dr. Rochelle Hawkins of Disability Determination Services conducted an exam evaluating Plaintiff's disability due to HIV and seizures. (R. 435-442.) A physical examination returned normal results and Dr. Hawkins opined that Plaintiff did not have any restrictions or abnormalities. (R. 436-37.) He had normal range of motion in his arms and legs. (R. 439-42.) With regard to his knees, Dr. Hawkins did not indicate any limitations or abnormalities. (R. 441.) The same month, on May 27, 2010, Dr. Francis Vincent completed a physical RFC evaluation in which he assessed Plaintiff's limitations with his history of HIV, hearing loss, and seizures. (R. 463-70.) Dr. Vincent noted that Plaintiff did not have any physical limitations except that he should avoid concentrated exposure to hazardous machinery. (R. 467.) Dr. Vincent opined that Plaintiff's seizures were well-controlled and he is able to hear without the assistance of hearing aids. (R. 470.)

         Medical records indicate that Plaintiff has been a patient at Stroger since June 18, 2010. (R. 475.) He has been treated for AIDS, seizures, tobacco use, and occasional cocaine use. (R. 501.) During a follow-up appointment on February 25, 2011, it was noted that Plaintiff denied having any further seizures and that he was progressing as expected. (R. 498, 500.) On March 25, 2011, Plaintiff visited the emergency room at Stroger due to worsening symptoms of depression. (R. 494, 609-10.) It was noted that Plaintiff denied having suicidal ideations but he has had thoughts of hurting himself. (R. 609.) He was discharged but was diagnosed with major depression. (R. 574, 610.) At discharge, the attending physician noted that Plaintiff was oriented, coherent, and was low risk for suicide or homicide. (R. 574.)

         On March 26, 2011, Plaintiff underwent a comprehensive psychiatric evaluation at John Madden Mental Health Center. (R. 581-87.) Though it was noted that Plaintiff was depressed, the evaluating doctor found Plaintiff to be cooperative, organized, and goal-directed. (R. 583.) The doctor further opined that Plaintiff's affect was normal. (Id.) Likewise, Dr. John Raba also completed a seizure questionnaire in which he noted that Plaintiff suffered seizures in December 2009 and February 2010. (R. 568.) He further opined that Plaintiff's associated mental problems were depression, memory problems, and short attention span. (R. 569.) Dr. Raba indicated that Plaintiff would be capable of low stress jobs but he would disrupt the work of coworkers and would require more supervision than an unimpaired employee. (Id.) Dr. Raba also opined that Plaintiff would be absent about two days per month due to his impairments. (R. 570.)

         On April 8, 2011, Dr. Raba completed another mental impairment medical assessment form. (R. 567.) Dr. Raba has treated Plaintiff since 1991 and noted that Plaintiff visits him about three to six times monthly. (R. 568.) Dr. Raba opined that Plaintiff's concentration and attention would be impaired 70 percent of the workday and found Plaintiff to have moderate limitations in maintaining activities of daily living, maintaining social functioning, accepting instructions and responding appropriately to criticisms, and getting along with coworkers without unduly distracting them. (Id.) Dr. Raba found Plaintiff markedly impaired in his ability to maintain attention, concentration, persistence, and pace, as well as dealing with normal work stress. (Id.) Dr. Raba also completed a physical impairment questionnaire and opined that Plaintiff can lift five to ten pounds. (R. 571.) He further opined that Plaintiff could reach overhead 80 percent of the time with his left and right arm, but is able to grasp and conduct fine manipulations fully with his left and right hand. (Id.) He noted that Plaintiff could sit for six hours in an eight-hour workday and can stand or walk for two hours in a workday. (Id.)

         On April 19, 2011, Plaintiff underwent another psychiatric evaluation with the CORE Center. (R. 526.) Plaintiff stated during the evaluation that he has been feeling depressed for a couple years but was never treated for it until March 2011. (R. 527.) He was diagnosed with major depressive disorder and advised to receive counseling and medication as treatment. (R. 530.) He was prescribed Celexa for depression and Trazodone for anxiety. (Id.) During a follow-up appointment on June 28, 2011, Plaintiff reported that he was compliant with his medication after being non-compliant for two weeks. (R. 510, 514.) He stated that he continued to feel symptoms of depression due to financial stressors. (R. 510.) He also stated that he needed financial assistance but could not find a job. (Id.)

         On May 13, 2011, an MRI was taken of Plaintiff's knee after an altercation with his brother. (R. 608, 613.) It was noted that there is a large perfusion at the left knee joint but there was no evidence of fracture or dislocation. (Id.)

         III. ...

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