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Ellsworth v. Berryhill

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

September 11, 2017

John C. Ellsworth, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, [1] Defendant.



         Plaintiff John C. Ellsworth worked as a truck driver until he suffered a stroke. After the stroke, he experienced shortness of breath, migraine headaches, weakness, numbness, and other issues. He applied for Social Security disability insurance benefits and supplemental security income, and after his applications were denied, he requested a hearing. An Administrative Law Judge found that Ellsworth was not disabled, and the Appeals Council denied his request for review. Ellsworth filed this action and moves for summary judgment, seeking reversal of the decision and remand of the case to the ALJ. Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, filed her own motion for summary judgment in response, requesting that the decision be affirmed. Ellsworth did not respond or reply.[2] For the reasons stated below, the decision is affirmed.

         I. Legal Standards

         Judicial review of decisions of the Social Security Administration is governed by 42 U.S.C. § 405(g). Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011) (citation omitted). When the Appeals Council denies a claimant's request for review, “the ALJ's ruling is the final decision of the Commissioner of Social Security.” O'Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010) (citing Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009)). In such a case, “the district court examines the ALJ's decision to determine whether substantial evidence supports it and whether the ALJ applied the proper legal criteria.” Allord, 631 F.3d at 415 (citation omitted). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Moon v. Colvin, 763 F.3d 718, 721 (7th Cir. 2014) (quoting Moore v. Colvin, 743 F.3d 1118, 1120-21 (7th Cir. 2014)). “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). While deferential, this standard of review does not require the court to “scour the record for supportive evidence or [search] 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, 763 F.3d at 721 (quoting Moore, 743 F.3d at 1121). Upon review, the court can “affirm, reverse, or modify the [ ] decision, with or without remanding the case for further proceedings.” Allord, 631 F.3d at 415 (citation omitted).

         II. Background[3]

         Plaintiff John C. Ellsworth has a GED and was 48 years old at the time of the hearings. A.R. 43. He managed a convenience store in 1998, after which he worked as a truck driver until August 2, 2011. A.R. 47. On that day, he went to the hospital complaining of slurred speech, blurred vision, numbness in his right hand, and weakness. A.R. 345. Doctors diagnosed him with a stroke, but he left that hospital against medical advice and went to the Howard Community Hospital to be closer to his family. A.R. 345. At Howard, Dr. Deshini Moonesinghe examined Ellsworth and reported that he had had a cerebrovascular accident (i.e., a stroke) and experienced blurred vision and difficulty talking. A.R. 345-48. She also reported that Ellsworth denied at the time experiencing weakness, shortness of breath, difficulty walking or swallowing, or a headache, though he said he did have a history of frequent headaches. A.R. 345-48. Tests also confirmed that Ellsworth had an atrioseptal defect, [4] which may have been a cause of the stroke. A.R. 351. On August 10, Ellsworth underwent a procedure to correct the defect. A.R. 343-44.

         Two days later, Ellsworth saw Dr. Rafik S. Farag at Community Health Center in Peru, Indiana. A.R. 379. Dr. Farag noted that Ellsworth was experiencing slurred speech and a mild loss of movement in his right hand, but that the results of his neurological examination were otherwise normal, along with those of his cardiovascular and other physical examinations. A.R. 379-80. Dr. Farag diagnosed Ellsworth with an “unspecified speech and language deficit due to cerebrovascular disease, ” “unspecified cerebral artery occlusion with cerebral infarction, ” anxiety, a sleep disorder, and an “unspecified congenital defect of septal closure.” A.R. 380. One month later, Ellsworth returned complaining of daily headaches, pain in his right arm, and weakness. A.R. 377. Dr. Farag noted that his general physical examination yielded normal results, and did not discuss the headaches or explicitly prescribe any treatment for them. A.R. 377-78. On November 7, 2011, Dr. Farag examined Ellsworth again and recorded normal results, but his notes do not discuss a neurological examination. A.R. 375.

         On April 9, 2012, Ellsworth went to a speech pathologist, Lane S. Schmitt. Schmitt reported that Ellsworth complained of fatigue, weakness in his right arm, poor vision, and difficulty swallowing, but that his biggest concerns were his speech and language problems and migraines. A.R. 416-17. According to Schmitt, Ellsworth told her that he spent his days doing household chores and lawn tasks, but took frequent breaks due to physical and mental fatigue. A.R. 416. Schmitt administered several tests to evaluate his speech and found that he had mild anomic aphasia, mild dysfluency, and mild stuttering. A.R. 28, 416-19. She concluded that he was “a functional but imperfect communicator.” A.R. 419.

         The next day, Ellsworth saw Dr. Zakir Khan, a consultative examiner. A.R. 421. Dr. Khan noted that Ellsworth complained of fatigue, poor vision, and weakness on his right side. A.R. 421-22. Ellsworth also reported that he had a history of chronic headaches and migraines, but denied having difficulty swallowing, swollen or painful joints, or other problems. A.R. 421-22. Dr. Khan examined Ellsworth and opined that he had weakness in his right leg, but that the results of his physical examination were otherwise normal. A.R. 422-23. He diagnosed him with the following conditions: right-sided weakness following a stroke, status post-atrial-septal-defect that had been closed, and headache syndrome. A.R. 423. Dr. Khan concluded that Ellsworth would not be able to stand, walk, or lift for extended periods of time, but could sit, carry and handle objects, hear, speak, and travel. A.R. 423.

         In May 2012, Ellsworth saw Dr. Christopher O. Harper. A.R. 427. The record does not include treatment notes from Dr. Harper, but he submitted a letter stating that Ellsworth suffered from anxiety, fatigue, mild speech difficulties, weakness in his right arm and leg, numbness in his left leg, difficulty walking, and daily, incapacitating headaches. A.R. 427. According to Dr. Harper, “headaches are a well-known phenomenon in some stroke [patients] and his are currently out of control.” A.R. 427. Dr. Harper opined that Ellsworth could not work until his headaches were treated or he could be sufficiently trained for a new job. A.R. 427.

         On July 18, 2013, Ellsworth testified before the ALJ. He was represented by counsel (though not the same attorney who represents him now), and testified that he had incapacitating migraines every week, and sometimes as many as four per week, as well as anxiety, shortness of breath, weakness, sensitivities to sunlight and vibrations, and difficulty walking, swallowing, focusing, and sleeping. A.R. 75- 76. He also testified that his migraines exacerbate problems with his vision, speech, and breathing, and that he has to take multiple breaks and naps throughout the day. A.R. 75-76. Ellsworth said that he had no insurance and had been unable to afford to see his doctors in 2013, and that he had been taking only over-the-counter drugs to treat his headaches. A.R. 50, 64. The ALJ continued the hearing so that Ellsworth could be examined by a consulting neurologist for an updated assessment of his condition. A.R. 66.

         On October 31, 2013, Ellsworth saw consulting neurologist Dr. Eston G. Norwood. A.R. 554 According to Dr. Norwood's report, Ellsworth said that he suffered from daily, dull headaches, and more intense headaches lasting from a few hours to a few days every week or two, but that he was not taking any medication. A.R. 554. He also complained of right-sided numbness and weakness, blurred vision, and speech and language problems. A.R. 554. Dr. Norwood reviewed Ellsworth's medical records, conducted a series of tests, and concluded that Ellsworth had some numbness in his right limbs, but found no speech problems, no problems with walking, only minimal evidence of right-sided weakness, and no other evidence of neurological impairment. A.R. 554. Dr. Norwood opined that Ellsworth could not stand or walk for more than one hour at a time, but had no postural or environmental limitations. A.R. 556-57. The ALJ proffered to Ellsworth Dr. Norwood's report on November 4, 2013 (A.R. 319), and Ellsworth responded by requesting a second hearing and that Dr. Norwood be subpoenaed for that hearing. A.R. 324.

         Before the second hearing, however, Ellsworth saw Dr. Harper for a second time, and Dr. Harper issued another medical opinion on February 18, 2014. A.R. 567. Dr. Harper wrote that Ellsworth's walking and speech problems had gotten better, but that he still suffered from fatigue and daily, incapacitating headaches that sometimes “crescendo, ” causing his other stroke-related symptoms to worsen. A.R. 567. Dr. Harper also reported that Ellsworth had difficulty swallowing. A.R. 567. Dr. Harper again explained that stroke victims often experience chronic headaches that are resistant to treatment. A.R. 567. And he opined that Ellsworth was on medication for his headaches that was insufficiently effective but had certain, limiting side effects. A.R. 567. Dr. Harper also noted that a recent MRI exam showed damage in Ellsworth's brain consistent with a stroke and which “fits his disability claims.” A.R. 567. Dr. Harper concluded that Ellsworth was permanently disabled. A.R. 567.

         At the second hearing on March 5, 2014, Ellsworth testified that most of his symptoms had not changed in the preceding year, but that his headaches had gotten worse. A.R.77. He said again that he needed to lie down and rest several times a day. A.R. 80. He also testified that Dr. Harper had prescribed new medication for him, but that he did not know if the medication would be effective, because he could not afford to fill his prescriptions. A.R. 77-81. Instead, he continued to take over-the-counter drugs for his headaches. A.R. 80.

         Vocational expert David Head also testified at the hearing. The ALJ asked the vocational expert if jobs exist for someone who could perform only sedentary work with certain postural and environmental limitations. A.R. 83. The vocational expert replied in the affirmative, providing statistics on available jobs. A.R. 83-84. The ALJ then asked if Ellsworth could perform those jobs if Ellsworth's “subjective testimony” were to be believed. A.R. 84. Noting that Ellsworth had complained of severe migraines that prevented him from doing anything other than lie down, the vocational expert testified that, were the subjective testimony to be credited, Ellsworth's estimated absenteeism would exceed the acceptable level for the types of work he had identified. A.R. 84-85.

         On May 20, 2014, the ALJ issued a written decision discussing Ellsworth's testimony and the medical records and opinions (including the opinions of non-examining doctors Robert Estock, B. Randall Horton, and Arvind Chopra) and denying disability benefits. Ellsworth requested that the Appeals Council review the decision, but that request was denied. Ellsworth seeks judicial review.

         III. Analysis

         Under the Social Security Act, a person is disabled if he is unable “to engage in any substantial gainful activity by reason of a 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 twelve months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A). In five steps, the ALJ considers whether the claimant: (1) is currently performing substantial gainful activity (if so, the claimant is not disabled); (2) has a severe impairment or combination of impairments (if not, the claimant is not disabled); (3) has an impairment that is equal to an impairment specifically listed in the regulations (if so, the claimant is disabled); (4) can perform her past relevant work (if so, the claimant is not disabled); and (5) can perform other work that exists in the national economy (if so, the claimant is not disabled). 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The ALJ performs those steps sequentially (20 C.F.R. §§ 404.1520(a), 416.920(a)), but before proceeding to steps four and five, he must determine the claimant's “residual functioning capacity, ” which is “what an ...

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