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Granger v. Berryhill

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

May 30, 2017

JERRY T. GRANGER JR., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.


          Mary M. Rowland Magistrate Judge.

         Plaintiff Jerry T. Granger Jr. filed this action seeking reversal of the final decision of the Commissioner of Social Security denying his applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act (SSA). 42 U.S.C. §§ 405(g), 423 et seq. The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c), and Plaintiff has filed a request to reverse the Administrative Law Judge's (ALJ's) decision and remand for additional proceedings. For the reasons stated below, the case is remanded for further proceedings consistent with this Opinion.


         To recover DIB or SSI, a claimant must establish that he or she is disabled within the meaning of the Act. York v. Massanari, 155 F.Supp.2d 973, 976-77 (N.D. Ill. 2001).[2] 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 December 29, 2011, alleging that he became disabled on April 20, 2010, because of Guillain-Barré syndrome (GBS)[3] and chronic inflammatory demyelinating polyneuropathy (CIDP).[4] (R. at 96, 106, 118, 129). The applications were denied initially and on reconsideration, after which Plaintiff filed a timely request for a hearing. (Id. at 116-17, 140-41, 165-67). On October 23, 2013, Plaintiff, represented by counsel, testified at a hearing before an ALJ. (Id. at 50-95). The ALJ also heard testimony from Ashok Jilhewar, M.D., a medical expert (ME), Michael Cremerius, Ph.D., a psychological expert, and Brian Harmon, a vocational expert (VE). (Id.).

         The ALJ denied Plaintiff's request for benefits on April 25, 2014. (R. at 14-45). Applying the five-step sequential evaluation process, the ALJ found, at step one, that there is conflicting evidence whether Plaintiff had engaged in substantial gainful activity since April 20, 2010, his alleged onset date. (Id. at 20-22). However, after evaluating the evidence, including Plaintiff's testimony, the ALJ determined that there is no evidence that Plaintiff worked after December 2011. (Id. at 21). At step two, the ALJ found that Plaintiff's GBS and hepatitis B infection are severe impairments. (Id. at 22-26). At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meet or medically equals the severity of any of the listings enumerated in the regulations. (Id. at 26- 27).

         The ALJ then assessed Plaintiff's residual functional capacity (RFC)[5] and determined that Plaintiff can perform a full range of sedentary work. (R. at 27-43). At step four, the ALJ found that Plaintiff is unable to perform any past relevant work. (Id. at 43). Based on Plaintiff's RFC, age, education, and the VE's testimony, the ALJ determined at step five that there are semi-skilled and unskilled jobs that exist in significant numbers in the national economy that Plaintiff can perform, including personnel clerk, telephone solicitor, receptionist, surveillance system monitor, bonder, and charge account clerk. (Id. at 44). Accordingly, the ALJ concluded that Plaintiff is not suffering from a disability, as defined by the Act. (Id.).

         The Appeals Council denied Plaintiff's request for review on October 19, 2015. (R. at 1-5). Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).


         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 evidentiary 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 was diagnosed with hepatitis B with liver fibrosis in 2009 and began therapy thereafter. (R. at 416). On April 21, 2010 Plaintiff was hospitalized at Loyola University Medical Center with a one-week history of progressive weakness that started in his lower extremities and progressed to his upper extremities with pares-thesias of his toes and fingers. (Id. at 505). On admission, Plaintiff showed 4/5 upper extremity strength and 3/5 lower extremity strength. (Id.). Plaintiff was unable to walk but had normal cognition and cranial nerves. (Id.). On April 22, 2010, Matthew McCoyd, M.D., performed an electromyography (EMG) which was abnormal and revealed evidence of a non-length-dependent axonal neuropathy affecting motor fibers. (Id. at 866). Plaintiff was diagnosed with GBS and acute hepatitis B and received five days of intravenous immunoglobulin therapy (IVIG). (Id. at 505-06).

         Plaintiff was discharged on April 26, 2010, and transferred to inpatient rehabilitation. (R. at 499). Upon discharge, Plaintiff demonstrated improved strength in his upper and lower extremities and some return of muscle stretch reflexes in his upper and lower extremities. (Id. at 501). Plaintiff remained at the inpatient rehabilitation facility through May 20, 2010. (Id. at 503). Plaintiff was then discharged to home with instructions to follow up with his primary care provider, a neurologist, and a hepatologist for his hepatitis B with transaminitis. (Id.).

         On June 4, 2010, Plaintiff was examined by Claus J. Fimmel, M.D. (R. at 420- 21, 721-29). At that time, Plaintiff had marked residual paralysis and could not walk. (Id. at 420, 725). Dr. Fimmel noted that a liver biopsy would be useful in assessing the extent and possible chronicity of Plaintiff's hepatitis B infection, but Plaintiff was unwilling to undergo a diagnostic liver biopsy. (Id. at 421, 725-26). Dr. Fimmel recommended starting Plaintiff on Entecavir (antiviral) once his repeat vi-rological studies were back. (Id. at 421, 726).

         Plaintiff was seen by Michael J. Schneck, M.D., on June 24, 2010, complaining of worsening double vision, left arm weakness, and difficulty ambulating with worsening symptoms over the past several days. (R. at 420). Dr. Schneck readmitted Plaintiff to Loyola University Medical Center hospital for a repeat lumbar puncture, EMG, rehab assessment, and possible pheresis/IVIG or steroids depending on the findings of a diagnostic workup. (Id.). Upon readmission, Plaintiff had marked motor weakness, areflexia (below normal or absent reflexes), and bilateral facial muscle weakness. (R. at 437). An EMG showed marked deterioration compared to the April 22, 2010 EMG. (Id.). The June 24, 2010 EMG continued to show evidence of demyelination but was accompanied by significant axonal injury, worse distally in the limbs and involving sensory as well as motor axons. (Id.). A liver biopsy showed severe autoimmune inflammation. (Id. at 437, 491). Plaintiff started Entecavir and prednisone (steroid) 80 mg daily. (Id.). Plaintiff also received five days of IVIG. (Id.). Dr. Danilo Vitorovic, M.D., stated that Plaintiff's clinical picture was most consistent with CIDP. (Id.). Plaintiff was discharged to the Rehabilitation Institute of Chicago (RIC) on July 2, 2010. (Id. at 440). Upon discharge, Plaintiff's medical condition was “fair.” (Id. at 437). Plaintiff had severe bilateral left extremity weakness with pain as well as left upper extremity weakness, but his left upper extremity weakness was improving. (Id.).

         Between July 2 and August 12, 2010, Plaintiff participated in physical therapy, occupational therapy, and rehabilitation at the RIC. (R. at 594-711). Upon admission, Plaintiff was unable to ambulate. (Id. at 705). Prior to discharge, Plaintiff was able to ambulate 400 feet and climb 20 stairs. (Id.). In terms of transfers, Plaintiff was “total assist” upon admission and became “modified independent” prior to discharge. (Id.).

         At Plaintiff's follow-up visit on July 23, 2010, with Dr. McCoyd, Plaintiff reported some recent improvement in his symptoms but he was not back to his pre-April baseline. (R. at 416). Plaintiff's motor examination showed left deltoid and biceps weakness at 4/5. (Id. at 417). His upper and lower extremity reflexes were absent. (Id.). Plaintiff's gait and station were normal. (Id.). Dr. McCoyd stated that the clinical and electrophysiologic picture seemed most consistent with a diagnosis of CIDP. (Id.). Dr. McCoyd recommended continued treatment with maintenance on oral steroids at Plaintiff's current dose (80 mg per day) and monthly IVIG therapy. (Id. at 418-19).

         At a follow-up on August 18, 2010, with Dr. Fimmel, Plaintiff was walking with a walker but no other assistance. (R. at 409, 734). He was able to move around freely with full or near-full use of his upper and lower extremities. (Id.). Plaintiff reported that he was about to finish his formal outpatient physical therapy and was eager to return to work. (Id.). Plaintiff's physical examination was normal. (Id. at 411, 735). Dr. Fimmel noted that Plaintiff had dramatically improved from a neurological standpoint from July 2, 2010, when he was not able to walk or provide any meaningful help to being positioned on the examination table. (Id. at 412, 737). Dr. Fimmel further noted that Plaintiff had a concomitant, marked improvement in his liver enzymes on Entecavir and prednisone. (Id.). Dr. Fimmel indicated that in hindsight, he suspected that Plaintiff's “autoimmune-like” changes on his liver biopsy may have been due to a flare up of his hepatitis B reactivation. (Id.).Dr. Fim-mel recommended discontinuing immunosuppression therapy and instead continuing Entecavir monotherapy. (Id. at 412-13, 737). He directed Plaintiff to continue Entecavir indefinitely, decrease prednisone from 80 mg to 40 mg per day, and return in six weeks. (Id. at 413, 737-38).

         On September 10, 2010, Plaintiff had a follow-up visit with Dr. McCoyd for weakness related to his inflammatory neuropathy. (R. at 407-09). Plaintiff reported feeling 75% better compared to April 2010, but he still had some pain in his feet. (Id. at 408). On motor examination, Plaintiff's strength was improved versus his previous exam with mild weakness of right knee flexion and extension. (Id.). Plaintiff's reflexes were 1 in the left bicep. (Id.). Plaintiff's gait was slow but he was able to walk without assistance. (Id.). He could take a few steps on his tiptoes and heels. (Id.). Dr. McCoyd planned to continue to slowly wean Plaintiff off of steroids and maybe transition to Azathioprine (immunosuppressant), continue IVIG treatment, continue rehabilitation, and continue Neurontin (pain medication). (Id. at 408-09). Dr. McCoyd opined that Plaintiff's inflammatory neuropathy had led to symptoms of muscle weakness which as an ongoing process that may have relapses and remissions. (Id. at 870).

         Plaintiff returned to Dr. Fimmel on September 29, 2010 for a follow-up visit on his chronic hepatitis B infection. (R. at 402-07, 742-51). Dr. Fimmel noted that Plaintiff was improving on 50 mg of prednisone and 1 mg per day of Entecavir. (Id. at 402, 743). Plaintiff was enrolled in daily rehabilitation and was targeting a January 2011 possible return-to-work date. (Id.). Plaintiff's physical exam was normal with full range of motion, no atrophy, and normal strength in his extremities. (Id. at 404, 744). Plaintiff showed excellent virological response to Entecavir with a decrease in viral load by at least six orders of magnitude and near-normalization of liver enzymes. (Id. at 407, 748). Plaintiff had improved neurologically as well but was still on a fairly high dose of prednisone. (Id.). Dr. Fimmel directed Plaintiff to stay on Entecavir indefinitely and return in two to three months to repeat labs. (Id.).

         On December 17, 2010, Plaintiff was examined by Dr. Fimmel at a follow-up visit for his hepatitis B infection. (R. at 399-400, 752-60). Plaintiff stated that his overall strength had returned to 75% of his normal baseline. (Id. at 399, 756). He reported difficulties concentrating and increased fatigue at work and in class. (Id.). Plaintiff had not resumed full-time work and was concerned about his weight gain and moon face. (Id.). Dr. Fimmel's impression was improved hepatitis B infection and neurological status on Entecavir 1 mg per day and prednisone 30 mg per day. (Id. at 400, 755). Dr. Fimmel referred Plaintiff to neurology for a follow-up and a decision regarding whether to start Plaintiff on Azathioprine. (Id.). Plaintiff was directed to follow-up with Dr. Fimmel in three months and continue Entecavir indefinitely. (Id. at 400, 758).

         On January 3, 2011, Plaintiff returned to Dr. McCoyd for a follow-up appointment. (R. at 396). Dr. McCoyd noted that there had been gradual improvement in Plaintiff's symptoms but he had not completely returned to his baseline. (Id.). Plaintiff reported some residual back pain and distal paresthesias. (Id.). Plaintiff had been weaning off of prednisone and was currently taking 20 mg daily. (Id. at 396-97). Plaintiff's general physical examination was normal. (Id. at 398). Plaintiff's motor examination was normal other than mild distal weakness. (Id.).The reflex examination showed ankle reflexes present, toes were downgoing, patellae and upper extremity reflexes were relatively reduced. (Id.). The Romberg test was negative. (Id.). Plaintiff was able to walk under his own power and stand on his tiptoes but had some difficulty standing on his right heel. (Id.). Dr. McCoyd noted that ...

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