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David v. Berryhill

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

June 14, 2017

ODISHO N. DAVID, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Michael T. Mason, United States Magistrate Judge.

         Claimant Odisho David (“Claimant”) brings this motion for summary judgment seeking judicial review of the final decision of the Commissioner of Social Security (“Commissioner”). The Commissioner denied Claimant's claim for Supplemental Security Income (“SSI”), finding him not disabled under 42 USC § 1382c(a)(3)(A). The Commissioner has filed a cross-motion for summary judgment asking the court to uphold the decision of the Administrative Law Judge (“ALJ”). The Court has jurisdiction to hear this matter pursuant to 42 U.S.C. §§ 1383(c) and 405(g). For the reasons set forth below, Claimant's request for summary judgment (Dkt. 22) is granted and the Commissioner's request (Dkt. 29) is denied.

         I. BACKGROUND

         A. Procedural History

         On April 9, 2012, Claimant filed an application for SSI, alleging disability since January 1, 2009 due to torn ligaments in the left leg, pain in the right shoulder, and problems with fluid in the ear. (R. 33, 102.) The Social Security Administration denied his claim initially on June 13, 2012, (R. 81-88, 98-102), and upon reconsideration on October 10, 2012. (R. 89-97, 112-116.) Claimant filed a timely request for a hearing on December 7, 2012. (R. 117.) On May 22, 2014, Claimant appeared with counsel before ALJ Asbille. (R. 46.) On May 30, 2014, ALJ Asbille issued a written decision denying Claimant's request for benefits. (R. 33-40.) Claimant filed a timely request for review (R. 24-25), and on October 20, 2015, the Appeals Council denied this request, which made the ALJ's decision the final decision of the Commissioner. (R. 1-7.) This action followed and the parties consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).

         B. Medical Evidence

         1. Treating Physician Records Before the ALJ

         The medical records reveal that Claimant was treated throughout the relevant period at various Cook County Health and Hospitals System locations for problems and follow-up related primarily to diabetes mellitus.

         In January of 2013, Claimant was diagnosed with Type 2 diabetes mellitus after testing revealed elevated blood glucose levels at 12.60%. (R. 467.) The doctors with Cook County Health and Hospitals System Network Diabetes Program (“NDP”) prescribed him insulin and two anti-diabetic medications, Glipizide and Metformin. (Id.) He was referred for an ophthalmology screening and to a primary care provider, and was advised to follow up in three months. (R. 370, 374, 467.)

         In March 2013, Claimant established care with primary care physician Dr. Khosropour at the Family Practice Outpatient facility affiliated with Cook County Health and Hospitals System. (R. 447.) He complained of lightheadedness when getting up quickly or taking deep breaths, bilateral leg pain that worsened with movement and high blood sugar, and sores in his mouth that improved as sugar levels decreased. (Id.) Claimant's blood sugar levels remained elevated at the time. (R. 449.) His blood pressure was also elevated. (Id.) Otherwise, a physical exam revealed mostly normal results. (Id.) Dr. Khosropour did note rapid speech, and that Claimant changed subjects very quickly. (Id.) Claimant was to continue with insulin injections “to bring sugars down” so that his oral medication would be more effective. (Id.) He was directed to continue tracking his blood sugar levels and bring in the results in two weeks for follow up. (Id.)

         A few weeks later, Claimant's sugar levels were “much better” after dosage adjustments were made by the NDP treaters, but were still high in the mornings. (R. 450, 468.) Overall, Claimant was “feeling well, ” though he complained of occasional hypoglycemic episodes. (Id.) Claimant's problems were noted as diabetes mellitus without complications and hyperlipidemia. (R. 450-51.) His blood pressure was normal, as were the results of a respiratory and cardiovascular exam. (R. 452.)

         On May 20, 2013, Claimant returned to see Dr. Khosropour for follow up. (R. 394.) He complained of tension over his right shoulder. (Id.) Upon exam, Dr. Khosropour observed a supple knot on the right trapezius that “reproduces pain when pushed.” (R. 396.) His blood pressure was within normal limits. (Id.) Claimant's fasting blood sugar was “very elevated, ” so Dr. Khosropour increased his Metformin and insulin dosages. (Id.) Claimant's microalbumin level was high, so he was started on a low dose of Enalapril. (Id.) He was educated about the importance of diet and exercise. (Id.) Claimant's hyperlipidemia was well controlled and he was to continue on Lovastatin. (Id.) For the shoulder tension, Dr. Khosropour recommended massage, stretching, and a heating pad. (Id.) Claimant was directed to return in three months. (Id.) It was noted that his ophthalmology appointment was coming up. (Id.)

         His glucose levels had “improved” by a June 5, 2013 visit with the NDP treaters, but were still not at the target level. (R. 469.) The nurse recommended an increase in his Metformin dosage if tolerable. (Id.) Claimant presented at the ophthalmology screening clinic in July 2013, at which point there was no indication of diabetic retinopathy observed. (R. 470.) Also around that time, Claimant underwent testing in the ER for complaints of chest pain and shortness of breath. (R. 416, 483.) A chest x-ray revealed no acute cardiopulmonary findings. (Id.) A stress test revealed normal exercise tolerance. (R. 486-87.)

         Claimant returned to see Dr. Khosropour in August 2013, complaining of weight gain, hypoglycemia before lunch time, and bilateral achy leg pain. (R. 456.) He denied chest pains or shortness of breath, and reported he had been compliant with his medication. (Id.) A physical exam was normal and Claimant's glucose levels had improved. (Id.) Dr. Khosropour assessed “very tightly controlled” diabetes (and adjusted Claimant's dosage), as well as controlled hypertension. (Id.) She recommended that Claimant discontinue Lovastatin, in hopes his leg pain would improve. (Id.)

         In September 2013, Claimant told the NDP nurse that he was taking his insulin, but was only eating one meal a day. (R. 471.) She helped him set goals and made additional recommendations for improvement. (Id.)

         In November 2013, Claimant presented to Dr. Khosropour with no complaints of hypoglycemic episodes since his dosage changes. (R. 460.) Claimant did complain of pain in the parotid area near his ear, accompanied by a salty taste in his mouth when pushing on that area. (Id.) He had also been experiencing intermittent lower back pain, but denied numbness or weakness. (R. 461.) Dr. Khosropour observed decreased range of motion in his back due to pain, as well as pain to palpation. (R. 463.) Dr. Khosropour planned to refer Claimant to an ENT for the parotid pain and to physical therapy for back pain. (Id.) As for the diabetes, Dr. Khosropour noted that it was “controlled too tightly” with his decreased insulin dosage. (Id.) She recommended Claimant start the oral medication Glyburide. (Id.) Claimant's hypertension and hyperlipidemia were well controlled. (Id.) Also around that time, Claimant had an ophthalmology appointment to get glasses. (R. 472.)

         Results from an aurical tone audiometer in April 2014 show Claimant's hearing abilities were within normal limits for both ears. (R. 488.)

         2. Treating Physician Records Submitted to the Appeals Council [1]

         In December 2013, Claimant was seen by a physical therapist for complaints of low back pain and bilateral hip pain beginning six months prior. (R. 518.) He reported his pain ranged from 2/10 to 9/10 and increased when sitting longer than ten minutes, lying on his side, bending, and lifting. (Id.) It decreased upon standing, positional changes, and with ibuprofen. (Id.) The therapist observed faulty body mechanics, lower extremity flexibility deficits, limited and painful lumbar active range of motion, and decreased hip strength contributing to increased joint stress. (R. 519.) She opined that Claimant's symptoms were consistent with lower lumbar pathology and greater trochanteric bursitis, possibly due to starting an exercise regime after being diagnosed with diabetes. (Id.) His prognosis was good and continued physical therapy was recommended twice a week for four weeks. (Id.)

         Claimant returned for physical therapy throughout January 2014. (R. 512-17.) By January 21, 2014, Claimant's lower back was “overall feeling better.” (R. 514.) The physical therapist reported that Claimant demonstrated improved lumbar active range of motion, functional mobility, and tolerance to core and hip strengthening. (R. 515.) Claimant experienced stiffness in the lower back and reproduction of left lower extremity symptoms, but symptoms were reduced after manual mobilizations to his lumbar spine and hip joint. (Id.) The plan was to continue with physical therapy to “improve functional strength and range of motion and return patient to prior level of function.” (Id.) By the end of the month, Claimant was reporting that he was feeling a little bit better after each therapy session. (R. 512.)

         The records submitted to the Appeals Council include the full audiological report from Claimant's April 2014 testing. (R. 501-03.) The report reveals that Claimant complained of decreased hearing sensitivity, drainage, and pain in the left ear for the past three to four years. (R. 501.) Tests revealed mildly decreased hearing levels on the left ear. (R. 502.) Claimant's speech discrimination was excellent on the right ear at normal conversational level and at elevated speech conversational level on the left ear. (Id.) The audiologist concluded that Claimant would experience difficulties discerning some/most sounds on both ears, greater on the left, when sounds were presented at or below normal speech conversational levels. (Id.) She recommended follow-up in six months and a hearing aid in the left ear pending medical clearance. (R. 502-03.)

         Claimant was treated in the emergency room on May 14, 2014 for depression, insomnia, and dysphagia. (R. 492-95, 499.) Chest imagining showed no acute pulmonary findings. (R. 499-500.) He was prescribed Trazodone, and advised ...


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