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Cooley v. Berryhill

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

April 25, 2017

DELLA M. COOLEY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.


          Sidney I. Schenkier, Magistrate Judge

         Plaintiff Delia M. Cooley ("Ms. Cooley" or "Plaintiff) seeks reversal or remand of the final decision of the Acting Commissioner of Social Security ("Commissoner") denying her claim for Disability Insurance Benefits (doc. # 12: Pl.'s Mem. in Support of Summ. J.). The Commissioner has filed a motion seeking affirmance of the decision denying benefits (doc. # 19; Def.'s Mot. for Summ. J.). For the following reasons, we grant the Commissioner's motion and affirm the Commissioner's decision.


         Ms. Cooley applied for benefits on February 4, 2011, alleging she became disabled on October 10, 2005 (R. 286), due to high blood pressure, fibromyalgia, sleep apnea, and carpal tunnel syndrome ("CTS") (R. 127). She later amended her alleged onset date to October 1, 2008 (R. 306). Her date last insured ("DLI") was June 30, 2012, approximately four months before she turned 50 years old (R. 20). Ms. Cooley's claim was denied initially and on reconsideration, and after a hearing on July 24, 2012, the Administrative Law Judge ("ALJ") issued an opinion on October 22, 2012, denying Ms. Cooley's request for benefits. On November 29, 2013, the Appeals Council vacated the ALJ's decision and remanded Ms. Cooley's claim to the ALJ. Ms. Cooley appeared for a second hearing before the same ALJ on May 30, 2014. On July 24, 2014, the ALJ issued another written decision finding Ms. Cooley was not disabled from October 1, 2008 through the DLI (R. 15-35). The Appeals Council denied Ms. Cooley's request for review of the decision (R. 1-6), making the ALJ's July 2014 ruling the final decision of the Commissioner. See Loveless v. Colvin, 810 F.3d 502, 506 (7th Cir. 2016).


         Plaintiff testified that she worked for years in customer service at Nicor Gas before being terminated in 2007 after having trouble working due to pain in her arm, back and neck (R. 112-13). The record shows that Ms. Cooley visited her primary care doctor, Sanjay Pethkar, M.D., at Suburban Healthcare Associates from January 2006 through November 2008, and then again from May 2011 through 2014. During the earlier visits, Ms. Cooley intermittently complained of neck and arm pain, high blood pressure (hypertension), headaches, tingling and numbness in her hands or arms due to CTS and fatigue from sleep apnea (despite her use of a CPAP machine) (R. 417-84). At the appointments during which Ms. Cooley complained of neck pain, Dr. Pethkar at times recorded that she had muscle spasms, tenderness and decreased motion in her cervical spine (neck) (Id.). Dr. Pethkar consistently diagnosed Ms. Cooley with hypertension and CTS, and occasionally diagnosed her with fibromyalgia or radiculopathy (nerve pain) of the upper extremity when she complained of neck pain (Id.).

         Ms. Cooley also complained of cramping, tingling and numbness in her legs in October 2008, and examination that day showed muscle spasm and tenderness in her lower (lumbosacral) spine (R. 441). Dr. Pethkar treated Ms. Cooley with medication for high blood pressure and occasionally medication for nerve pain (Effexor) (Id.). At Ms. Cooley's November 2008 visit, Dr. Pethkar noted that she could not work due to multiple medical problems (R. 440).

         On March 6, 2009, Meda Raghavendra, M.D., examined Ms. Cooley for an initial consultation at a pain management clinic (R. 537-40). Dr. Raghavendra recorded that she had normal strength and ambulation, but was positive at fibromyalgia tender points throughout her body (R. 539-40). Ms. Cooley did not have a follow-up appointment with him (Id.).

         Kimberly Middleton, M.D., performed a consultative examination of Ms. Cooley on March 25, 2011. Dr. Middleton reported that Ms. Cooley's strength, movements, gait and balance were normal, but she had "mild tenderness" at fibromyalgia trigger points in the low bilateral cervical region, occiput (back of the head), trapezius, bilateral gluteal region, bilateral greater trochanter, and bilateral knees (R. 499). She concluded that Ms. Cooley had fibromyalgia, CTS and sleep apnea, although Ms. Cooley did not appear to be easily fatigued that day (R. 500). Dr. Middleton opined Ms. Cooley could perform sedentary to medium work, but with limits on lifting, pulling, pushing and operating heavy or vibratory machinery (Id.).

         Ms. Cooley returned to Dr. Pethkar on March 29, 2011, complaining of pain in her neck and both arms as well as daytime drowsiness from sleep apnea (R. 506). Ms. Cooley's examination was normal, but Dr. Pethkar wrote that she "cannot work due to multiple medical problems" (R. 507). On that same visit, Dr. Pethkar and Ms. Cooley completed a disability status update relating to Ms. Cooley's long term disability claim with Unum Life Insurance Company (R. 524-32). Dr. Pethkar stated that Ms. Cooley's diagnoses were CTS, fibromyalgia, sleep apnea, and radiculopathy, and that she could not drive due to sleep apnea and CTS (Id.). Dr. Pethkar checked boxes indicating that Ms. Cooley could occasionally (up to one-third of the day): sit, stand, walk, lift/carry up to 20 pounds, push/pull, perform fine finger movements, climb, twist/bend/stoop and reach above shoulder level (R. 527). On the same form, Ms. Cooley reported that muscle pain and stiffness made it difficult to complete household chores and that she experienced daytime sleepiness, among other symptoms (R. 528). However, she did not need assistance caring for herself or performing daily activities; she just performed them slowly (Id.).

         On April 11, 2011, state agency medical consultant, Richard Bilinsky, M.D., assessed Ms. Cooley's residual functional capacity ("RFC") (R. 127-34). He found that her statements were "somewhat excessive when compared to the objective medical evidence, " and opined that Ms. Cooley could perform light work and stand, walk or sit for a total of about six hours in an eight-hour workday with unlimited ability to push and/or pull (R. 131). This opinion was affirmed on reconsideration by Francis Vincent, M.D. (R. 521-23).

         In May 2011, Dr. Pethkar assessed Ms. Cooley with chronic fatigue syndrome, possible fibromyalgia, and chronic pain syndrome, and he prescribed Cymbalta (for nerve and muscle pain) and Tramadol (a narcotic) (R. 505). He also noted that Ms. Cooley took Oxycontin for pain (R. 504). In February 2012, Ms. Cooley also complained of low back pain and leg tingling; Dr. Pethkar prescribed Lyrica (for nerve and muscle pain) (R. 545-46).

         On May 10, 2011, Jeff Floyd, a physician's assistant at Suburban Healthcare, completed chronic pain and sleep disorder RFC questionnaires on Ms. Cooley's behalf (R. 514-20). He wrote that Ms. Cooley's fibromyalgia, CTS, hypertension, and sleep apnea caused intermittent flare-ups of chronic pain and fatigue, which would frequently interfere with the attention and concentration needed to perform even simple work tasks (R. 514). Mr. Floyd wrote that Ms. Cooley could sit for 15 to 20 minutes and stand for 10 to 15 minutes before needing to change positions, and sit, stand or walk no more than two hours total in an eight-hour work day (R. 515). She would also need intermittent periods of walking around for 5 to 10 minutes at a time (Id.). Mr. Floyd also indicated that Ms. Cooley could only rarely lift and carry 10 pounds and had significant limitations doing repetitive reaching, handling or fingering (R. 516).


         Ms. Cooley appeared at her first hearing before the ALJ on July 24, 2012. She testified that she tried working at Comcast in July 2010, but stopped after about six weeks because she had difficulty concentrating during training, felt pain in her back and neck after sitting for hours, her hands and wrists would "swell up" due to her CTS, and her blood pressure went up, making her lightheaded and dizzy (R. 104-06). Ms. Cooley testified that she saw her doctor every three to four months for management of her medication for blood pressure and fibromyalgia. Her fibromyalgia medication varied because she did not have insurance and could not always afford it; at times she could only afford Aleve or extra strength Tylenol (R. 106-09). Every two weeks, her pain was so bad that she could barely move around (R. 115). Ms. Cooley testified that she still felt fatigued despite using a CPAP machine at night, and CTS still caused her arm pain (R. 110-12). Nevertheless, Ms. Cooley tried to keep up her stretching exercises and daily activities, like cleaning the house, doing dishes, grocery shopping and cooking, though she could not stand or sit for more than 30 to 40 minutes due to pain (R. 115-16). She also visited her grandchildren about once per week and drove short distances (R. 117-19).

         On October 22, 2012, the ALJ issued an opinion finding Ms. Cooley not disabled, but the Appeals Council remanded this opinion on November 29, 2013. On remand, the Appeals Council ordered the ALJ: to evaluate fibromyalgia at Step 2 of the evaluation process and under Social Security Ruling 12-2p; to consider more recent clinical records from Dr. Pethkar; to account for Ms. Cooley's increase in age - to 50 -- in Step 5; to further evaluate Ms. Cooley's subjective complaints; to ...

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