United States District Court, N.D. Illinois, Eastern Division
ODISHO N. DAVID, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
Michael T. Mason, United States Magistrate Judge.
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.
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).
Treating Physician Records Before the ALJ
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.
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,
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.
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.)
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.)
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.)
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
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.)
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.)
from an aurical tone audiometer in April 2014 show
Claimant's hearing abilities were within normal limits
for both ears. (R. 488.)
Treating Physician Records Submitted to the Appeals Council
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.)
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.)
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.)
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 ...