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Glover v. Berryhill

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

June 9, 2017

CALVIN GLOVER Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the U.S. Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          Michael T. Mason, Magistrate Judge

         Claimant Calvin Glover seeks judicial review under 42 U.S.C. § 405(g) of a final decision of Defendant Commissioner of the Social Security Administration (“SSA”) terminating his 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, Claimant's motion to reverse the final decision of the Commissioner or remand [17] is granted and the Commissioner's motion for summary judgment [24] is denied.

         I. BACKGROUND

         A. Procedural History

         Claimant was born October 25, 1993, and received SSI as a child due to a disability. (R. 23.) As required under the Act, Claimant's eligibility for SSI was re-evaluated under the rules for determining adult disability when he attained the age of eighteen. See 42 U.S.C. § 1382c(a)(3)(H)(iii). On April 25, 2012, the SSA determined that Claimant was no longer disabled as of April 1, 2012. (R. 23.) This decision was upheld upon reconsideration on March 4, 2013. (R. 90-92; 99-109.) Following both denials, Claimant filed a hearing request on March 11, 2013, pursuant to 20 C.F.R. § 404.929 et seq. (R. 114-16.) A hearing was held on June 3, 2014 before an Administrative Law Judge (“ALJ”). (R. 139.) After he was informed of his right to representation, Claimant appeared at the hearing without the assistance of an attorney or other representative. (R. 36-89.) A Vocational Expert (“VE”) was also present and offered testimony. (R. 82-88.) On December 4, 2014, the ALJ issued a written decision denying Claimant's SSI claim. (R. 23-31.) Claimant then requested review by the Appeals Council. (R. 13-14; 17-19.) On April 8, 2016, the Appeals Council denied his request for review, at which time the ALJ's decision became the final decision of the Commissioner. (R. 1-7); Zurawski v. Halter, 245 F.3d 881, 883 (7th Cir. 2001). Claimant subsequently filed this action in the District Court.

         B. Medical Evidence

         The medical records reflect that between 2007 and 2012 Claimant sought treatment at Christian Community Health Center for asthma, back pain, and other general health issues. (R. 336-61; 397-407.) He was treated with Albuterol for his asthma, and on at least one occasion, ibuprofen for his back pain. (R. 399-400.) In April 2011, Claimant was examined by his school nurse who reported that he had a heart murmur, which did not affect his physical activity level, and asthma, which was controlled with an inhaler and did not impact his ability to attend school or participate in regular physical education. (R. 185-87.)

         About one month later, Claimant was identified as a student with a learning disability and underwent a psychological evaluation performed by Carolyn Hall-Pilate, a psychologist. (R. 188-91.) The examination revealed that Claimant had a full scale intellectual quotient (“IQ”) of 77, placing him within the borderline range of intellectual functioning. (R. 188.)

         On March 3, 2012, Dr. Albert Osei, M.D., performed a consultative examination of Claimant at the behest of the Bureau of Disability Determination Services. (R. 362- 65.) Claimant stated that he had suffered from asthma since childhood and used an inhaler when he engaged in physical activities such as mixed martial arts, running, and basketball. (R. 362.) Upon examination, Claimant's lungs were clear, he had full range of motion in all of his joints, and his mental status examination revealed that his behavior and ability to relate during the exam were normal. (R. 363-64.)

         One month later, Claimant underwent another consultative examination with Dr. Piyush Buch, M.D. (R. 368-69.) In his report dated April 5, 2012, Dr. Buch noted Claimant's history of disruptive behavior, including fighting, arguing, and “talking back.” (R. 368.) He diagnosed him with impulse control disorder. (R. 369.) After asking Claimant several cognitive and behavioral questions, Dr. Buch opined that Claimant was able to understand and remember instructions, but had difficultly carrying them out. (Id.)

         Shortly afterward, on April 17, 2012, Dr. Donald Cochran, Ph.D., reviewed Claimant's records and performed a psychiatric review. (R. 371-88.) Dr. Cochran concluded that Claimant would be “markedly limited” in his ability to interact appropriately with the general public and understand, remember, or carry out detailed instructions. (R. 385-86.) He opined that Claimant would “do best” in settings that did not require extensive social interaction, but that he would also have “some difficulty” working independently with usual supervision. (R. 387.)

         Two days later, Dr. Bharati Jhaveri, M.D., performed a physical residual functional capacity (“RFC”) assessment of Claimant based on his records. (R. 389-96.) Dr. Jhaveri found that Claimant had no postural, manipulative, vision, or communicative limitations, but limited him to work at a medium exertional level. (R. 390-93). He also noted that Claimant should avoid concentrated exposure to fumes, odors, dust, gases, and poor ventilation due to his asthma. (Id.)

         On November 7, 2012, at the direction of Dr. Shari Davis, M.D., Claimant underwent an x-ray of his lumbar and cervical spines. (R. 409.) The results of both exams were unremarkable. (Id.) Claimant was also scheduled to undergo a CT scan of his thoracic spine, but it was cancelled. (Id.)

         On December 8, 2012, state agency medical consultant, Dr. Donna Hudspeth, Psy.D., completed an Advisory Psychiatric Review Technique form, in which she opined that Claimant's mental impairments did not meet a listing. (R. 411-28.) Dr. Hudspeth then completed a mental RFC assessment and found that Claimant's impairments imposed moderate limitations on his ability to maintain attention and concentration for extended periods of time, carry out, understand, and remember detailed instructions, work in coordination with or proximity to others without being distracted by them, complete a normal work day and work week without interruption, interact appropriately with the general public, get along with coworkers or peers without distracting them or exhibiting behavioral extremes, and set realistic goals or make plans independently of others. (R. 411-12.) Similarly, she determined that Claimant would have moderate difficulties in maintaining concentration, persistence, pace, and social function. (R. 425.) Ultimately, Dr. Hudspeth opined that Claimant retained the ability to understand, remember, and carry out at least simple, one- to two-step repetitive tasks, and that he could adequately adapt to work settings and routine changes, but that his work setting should limit his social demands. (R. 413.)

         Four days later, on December 12, 2012, Dr. George Andrews, M.D., a state agency medical consultant, completed a physical RFC assessment where he reported that Claimant had no exertional, manipulative, postural, or communicative limitations, but that he should “avoid even moderate exposure” to pulmonary irritants such as fumes, odors, and gases due to his history of asthma. (R. 429-36.)

         C. Claimant's Testimony

         Claimant appeared at his administrative hearing on June 3, 2014. (R. 39-88.) After the ALJ advised Claimant of his right to representation, Claimant decided to proceed without the assistance of an attorney or other representative. (R. 39-45.)

         Claimant testified that he was born on October 25, 1993 and was twenty years old at the time of the hearing. (R. 48.) In terms of his education, Claimant stated that he had dropped out of high school during the first quarter of his senior year because “it started getting confusing” and there was too much pressure on him. (R. 48-49.) Claimant explained that since he dropped out he had not attempted to obtain a high school equivalent education or enroll in any other courses. (R. 49.)

         Next, Claimant testified regarding his work history. (Id.). Claimant stated that he was hired in April 2013 as a porter at Burger King, where his job duties included sweeping, mopping, and lifting heavy boxes. (R. 49-50.) Claimant testified that he could not perform the lifting requirement of his job due to his back pain, so he was later limited to just sweeping and mopping. (Id.) Claimant reported that he worked three hours per week for four months, but quit because he could not afford transportation to get to work. (R. 50-51; 56.) Beyond a two-month period of employment at McDonalds in 2012, Claimant stated he was unable to obtain other work because he did not have transportation or missed the orientation days. (R. 51-59.)

         Claimant reported that he is primarily unable to work due to his back pain. (R. 60.) He stated that he has experienced back pain his entire life, but he never had the cause of the pain successfully investigated by a doctor. (R. 62.) He explained that he had scheduled a CAT scan on his back, but it was not completed due to a misunderstanding at the doctor's office where he left before the scan could be performed. (Id.)

         Claimant testified that he still has asthma, which causes him sharp pains in his heart when he walks up stairs. (R. 66.) He stated that ...


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