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Crowder v. Berryhill

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

August 1, 2017

KIM CROWDER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.


          Honorable Marvin E. Aspen United States District Judge

         Plaintiff Kim Crowder brings this action pursuant to the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration (“SSA”). Presently before us are Crowder and the Commissioner's cross-motions for summary judgment. For the following reasons, we deny Crowder's motion for summary judgment and grant the Commissioner's motion for summary judgment.



         Crowder filed his application for Supplemental Security Income (“SSI”) on November 3, 2011, claiming disability based on his history of seizures, epilepsy, and auditory hallucinations. (R. (Dkt. No. 8-1) at 108, 277-82.) The SSA denied the application on February 2, 2012. (Id. at 104-08.) On reconsideration, Crowder claimed to be disabled based on his diabetes. (Id. at 109.) The SSA denied his application on reconsideration on July 17, 2012. (Id. at 112-15.) Crowder then requested a hearing before an ALJ. (Id. at 118-20.)

         A hearing was held on June 11, 2013. (Id. at 34-54.) The ALJ issued a decision on July 19, 2013, finding Crowder was not disabled. (Id. at 58-75.) Crowder appealed the ALJ's decision to the SSA Appeals Council of the Office of Disability Adjudication and Review. (Id. at 76.) On November 6, 2014, the Appeals Council vacated the hearing decision and remanded the case to another ALJ to clarify the extent of Crowder's mental impairments by obtaining additional evidence from a psychological expert and a vocational expert (“VE”), and to further consider all third-party statements. (Id. at 76-80.)

         A second hearing was held on June 25, 2015. (Id. at 16-33.) The ALJ issued a decision on July 24, 2015, again finding Crowder was not disabled. (Id. at 81-103.) On October 14, 2016, the Appeals Council denied Crowder's request for review of the second ALJ decision, (id. at 1-6), making the ALJ's July 24, 2015 decision the final decision of the Commissioner of the SSA. 42 U.S.C. § 405(g); see also Sims v. Apfel, 530 U.S. 103, 107, 120 S.Ct. 2080, 2083 (2000) (“[I]f, as here, the Council denies the request for review, the ALJ's opinion becomes the final decision.”). Crowder then filed his complaint on January 23, 2017 seeking judicial review of the Commissioner's decision.


         A. Medical History

         1. Consultative Examinations for DDS

         Crowder saw several consultative psychological examiners for the Bureau of Disability Determination Services (“DDS”) in conjunction with his SSI application. Consultative psychological examiner Sharon Kobak, D.O., examined Crowder for DDS on May 22, 2007.[2](R. at 444-49.) Crowder stated he had seizures from a prior head injury he sustained after falling down stairs in the 1980s, he felt sad and depressed, and had attempted suicide, but had never been hospitalized for a psychiatric disorder. (Id. at 444-45.) Dr. Kobak diagnosed Crowder with dementia, depressive disorder, antisocial personality disorder, status post traumatic brain injury, and seizure disorder. (Id. at 447.)

         Consultative psychological examiner Robert Prescott, PhD, examined Crowder for DDS on December 23, 2011. (Id. at 466-72.) Crowder described a history of seizures and stated he was depressed, hears voices, and had attempted suicide, but had not received any mental health treatment. (Id. at 466-68.) Crowder also reported brain damage from falling off a bicycle. (Id. at 467.) Dr. Prescott observed that Crowder's statements about his previous drug and alcohol use and legal troubles differed from those he provided to previous examiners, and that Crowder “seemed to be making limited effort on the cognitive portion of the [examination] and this is believed not to be accurate.” (Id. at 471.) Dr. Prescott diagnosed Crowder with a cognitive disorder due to head injury, depressive disorder, antisocial activities, unknown alcohol abuse, and narcotic abuse. (Id. at 471.)

         In addition, consultative psychological examiner Patricia Morrin, PsyD, examined Crowder for DDS on December 24, 2014, after the Appeals Council remanded Crowder's claim and ordered the ALJ to obtain more evidence regarding Crowder's mental impairments. (Id. at 632-42.) Dr. Morrin found that, with regard to his physical impairments, Crowder complained only of leg cramps and headaches. (Id. at 636.) Crowder stated he sometimes felt lonely and depressed and had attempted suicide, but denied any treatment or hospitalizations for mental health reasons. (Id. at 633, 637.) Dr. Morrin observed that Crowder's “fund of information and abstract thinking skills were low and he could not perform computations. He did not report any auditory or visual hallucinations. His mood and affect was blunted and moderately depressed.” (Id. at 634.) Dr. Morrin also administered the Wechsler Adult Intelligence Scale-IV (“WAIS”), and Crowder scored a Full Score IQ of 62. (Id. at 635-36.) However, Dr. Morrin believed the test scores were “not representative of the claimant's level of functioning” because Crowder had difficulty seeing the test, and she suspected his visual problems and previous head injury likely lowered the score. (Id. at 635, 637.) After examination, Dr. Morrin concluded Crowder has moderate restrictions in work-related mental activities and ability to interact with others, and mild restriction in his ability to respond to usual work situations and to changes in a routine work setting. (Id. at 639-40.)

         Crowder also saw consultative physical examiners for DDS as part of his SSI application. Consulting physical examiner Kenneth Gong, M.D., examined Crowder for DDS on May 22, 2007. (Id. at 450-60.) Crowder reported that he suffered a head injury in the 1980s after falling off of a bicycle. (Id. at 450.) Dr. Gong found Crowder appeared to be physically unremarkable and diagnosed Crowder with seizure disorder and “allegations of mental illness.” (Id. at 451-52.) Consulting physical examiner Norbert De Biase, M.D., examined Crowder for DDS on December 23, 2011. (Id. at 475-85.) Crowder reported having seizures and blurry vision. (Id. at 475-76.) Dr. De Biase concluded Crowder had full range of motion in all joints and normal muscle strength, and diagnosed Crowder with seizures, impaired vision, and “hearing voices.” (Id. at 477-78.) Consulting ophthalmologist David Hillman, M.D., examined Crowder on January 13, 2012, finding Crowder had right eye vision of 20/200, correctable to 20/40, and left eye vision of 20/40. (Id. at 500-06.)

         2. State Agency RFC Assessments

         In addition to consultative examinations, several state agency consulting physicians reviewed Crowder's application materials and medical records for DDS to determine his physical Residual Functional Capacity (“RFC”). State agency physical consultant David Bitzer, M.D., completed a Physical RFC Assessment for DDS on January 31, 2012. (Id. at 507-14.) Dr. Bitzer concluded Crowder had no exertional limitations. (Id. at 508-11.) State agency physical consultant Sumanta Mitra, M.D., also completed a Physical RFC Assessment for DDS on July 5, 2013. (Id. at 613-20.) Dr. Mitra concluded Crowder could occasionally lift or carry 50 pounds, frequently lift or carry 25 pounds, could stand or walk for about six hours in an eight-hour workday, could sit for a total of 6 hours in an 8-hour workday, could occasionally climb ladders, and should avoid concentrated exposure to hazards such as machinery and heights. (Id. at 614-17.)

         In addition, state agency consulting psychologists reviewed Crowder's records for DDS to determine his mental RFC. State agency psychological consultant Michael Schneider, PhD, completed a Psychiatric Review Technique and Mental RFC Assessment on January 12, 2012. (Id. at 486-99.) Dr. Schneider stated there was insufficient evidence in Crowder's file to make a finding because he was not given the entire longitudinal record at the time of his review. (Id. at 486, 498.) Subsequently, state agency psychological consultant Joseph Mehr, PhD, completed a Psychiatric Review Technique and Mental RFC Assessment on June 26, 2012. (Id. at 595-612.) Dr. Mehr observed that during a telephone conversation regarding his claim, Crowder “denie[d] prior symptoms of psychiatric issues.” (Id. at 597, 611.) Dr. Mehr found Crowder “has the cognitive ability to remember general work procedures, and to understand and remember instructions for simple tasks of a routine and repetitive type.” (Id. at 597.) Dr. Mehr also rated Crowder's functional limitations for Listings 12.02 (Organic Mental Disorders), 12.04 (Affective Disorders), and 12.09 (Substance Addiction Disorders), which are set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1 and are used to determine whether the claimant's impairment meets or equals the criteria of a listed impairment. (Id. at 599-610.) Dr. Mehr concluded that Crowder has moderate restrictions of daily living activities, mild difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and no episodes of decompensation, and thus did not meet the requirements for Listings 12.02, 12.04, or 12.09. (Id. at 609.)

         3. Treatment Records

         Although the record does not contain treatment records for Crowder's mental impairments, Crowder's medical records from 2003 to 2015 indicate he sought treatment for other physical impairments. Crowder's medical records from 2003 to 2006 indicate various ailments, such as complaints of nasal congestion and back pain. (Id. at 398-443.) From 2012-2015, Crowder visited several hospitals and received treatment for various physical symptoms. Crowder was admitted to Holy Cross Hospital on March 18, 2012 complaining of abdominal pain. (Id. at 515-50.) Crowder reported a history of hypertension, hypothyroid disorder, and alcohol abuse. (Id. at 516.) Crowder's records from the hospitalization indicate he was depressed, and he was diagnosed with acute pancreatitis and alcohol abuse. (Id. at 525, 539.)

         Crowder was admitted to Stroger Hospital on April 4, 2012, complaining of weakness and fatigue after his mother found him lying on the floor, too weak to move. (Id. at 556.) Crowder did not report any psychological difficulties or a history of seizures. (Id. at 556-59.) Crowder was diagnosed with Type Two diabetes and diabetic ketoacidosis, and was discharged on April 4, 2012. (Id. at 583.) At a follow-up appointment for outpatient diabetes management on March 22, 2013, Crowder again reported no psychological difficulties. (Id. at 627-28.) Crowder was admitted to Rush University Medical Center on May 15, 2015 complaining of weakness and dizziness. (Id. at 682-718.) Crowder was diagnosed with diabetic ketoacidosis, dehydration, and depression. (Id. at 682, 692.) Crowder ...

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