United States District Court, N.D. Illinois, Eastern Division
John C. Ellsworth, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security,  Defendant.
MEMORANDUM OPINION AND ORDER
S. SHAH UNITED STATES DISTRICT JUDGE.
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. For the reasons
stated below, the decision is affirmed.
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
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,
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...