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Scheie v. Berryhill

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

April 2, 2018

BENJAMIN G. SCHEIE, Plaintiff,
v.
NANCY A. BERRYHILL[1], Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Honorable Michael T. Mason United States Magistrate Judge.

         Claimant Benjamin G. Scheie (“Claimant”) brings this motion for summary judgment [10] seeking judicial review of the final decision of the Commissioner of Social Security (“Commissioner”). The Commissioner denied Claimant's claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under 42 U.S.C. §§ 416(i) and 423(d) of the Social Security Act (the “Act”). The Commissioner filed a cross-motion for summary judgment [17] asking the Court to uphold the decision of the Administrative Law Judge (“ALJ”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, Claimant's motion for summary judgment [10] is denied, and the Commissioner's cross-motion for summary judgment [17] is granted.

         I. BACKGROUND

         A. Procedural History

         Claimant filed an application for a period of disability and supplemental security income on January 23, 2012. (R. 20.) Claimant alleges that he became disabled on September 8, 2008 due to HIV, depression, colectomy, hypersomnia, fecal incontinence, cataracts and implants in facial bones. (R. 94.) His application was initially denied on May 24, 2012, and again on November 16, 2012, after a timely request for reconsideration. (R. 20.) On November 28, 2012, Claimant filed his request for a hearing. (Id.) On February 25, 2014, he testified before ALJ Cynthia Bretthauer. (R. 33-93.) On March 14, 2014, the ALJ issued a decision finding Claimant not disabled. (R. 20-27.) On March 25, 2014, Claimant requested review by the Appeals Council. (R. 15-16.) On July 20, 2016, the Appeals Council denied Claimant's request for review, at which time the ALJ's decision became the final decision of the Commissioner. (R. 1-3.); Zurawski v. Halter, 245 F.3d 881, 883 (7th Cir. 2001); 20 C.F.R § 1 404.955, 404.981. Claimant subsequently filed this action in the District Court.

         B. Medical Evidence

         Claimant seeks DIB and SSI for disabling conditions stemming from HIV, depression, hypersomnia, colectomy, fecal incontinence, cataracts and implants in facial bones. (R. 242.)

         1. Relevant Medical Records[2]

         a. Claimant's Sleep Disorder

         The record shows Claimant started reporting daytime sleepiness in 2008 and had previously been diagnosed with sleep-disordered breathing and narcolepsy.[3] (R. 338, 579.) Claimant reported that he had episodes of sleep paralysis and had experienced episodes of sleep walking since he was between the ages of 10 and 12. (R. 582.) Claimant reported being able to manage his hypersomnia more easily when he was in high school and college due to having a flexible work schedule and taking naps as needed. (Id.) His condition was more difficult to manage in his managerial job due to him not being able to take naps. (Id.) Claimant further reported his total sleep time was usually between 13 and 14 hours. (R. 585.) To help with his daytime sleepiness Claimant started taking Adderall in 2009. (R. 590.) At the time, Claimant indicated he felt good and did not feel sleepy with the present medication regimen. (Id.)

         Then, on November 8, 2011 Claimant underwent a Multiple Sleep Latency Test. (R. 444-445.) The test revealed evidence of hypersomnolence that was thought to be due to reduced sleep time at night from untreated mild obstructive sleep apnea. (R. 445.) Claimant followed up with David Shen, M.D. in January and February of 2012 regarding his obstructive sleep apnea and reported his symptoms to be the same. (R. 446-447, 448-449.) Dr. Shen opined that he believed Claimant's daytime hypersomnolence was likely due to his untreated sleep-disordered breathing, although it did appear a bit out of proportion to the severity of the disease. (R. 446.) Dr. Shen's plan was to treat Claimant's obstructive sleep apnea and have Claimant return to the clinic for follow up. (Id.)

         b. Depression

         In August of 2009, Claimant reported he was previously diagnosed with depression, but that he stopped seeing a psychiatrist because it was expensive and he was receiving medications from his primary care doctor. (R. 590.) Claimant underwent a Mental Health Phone Screen on February 18, 2011 by Kelly Ducheny, PsyD. (R. 546-549.) Claimant reported that the reason he was seeking therapy was due to him being miserable at his job for at least five years and two of his dogs had recently passed away. (R. 546.) Claimant also stated that he tried to do things to help him not feel depressed such as go to the gym and see friends, but none of it helped. (Id.) Even with Claimant's efforts he still felt empty and became obsessed with planning his suicide. (Id.) Claimant reported he had previously attempted to hurt himself 30 years prior by an Aspirin overdose but was not hospitalized. (R. 547.) Dr. Ducheny found Claimant's suicidal intentions to be at a low-moderate level because he expressed focus on receiving medical attention in the future for other issues. (R. 548.)

         Claimant first visited Frank Pieri, M.D. on January 29, 2010 for a psychiatric assessment. (R. 436-437.) Claimant then visited approximately ten additional times through February 7, 2012.[4] (R. 439-440.) Dr. Pieri completed a psychiatric report for Claimant on March 12, 2012 in which he reported that due to the severity of his sleep disorder, depression and anxiety, Claimant was unable to do any type of work. (R. 463-466.) Dr. Pieri also gave Claimant a Global Assessment of Functioning (“GAF”) score of 45.[5] (R. 463.) Dr. Pieri again completed a psychiatric report a few months later on September 15, 2012, and on this form reduced Claimant's GAF score to 35. (R. 687-690.) Dr. Pieri listed Claimant's complaints and symptoms as fatigue, poor sleep, irritable, poor memory, suicidal, isolated, and withdrawn. (R. 687.) Dr. Pieri again reported Claimant was unable to work. (Id.) The record also contains a letter dated July 16, 2012 written by Dr. Pieri with no addressee indicated. (R. 760.) In the letter Dr. Pieri stated he was treating Claimant for a psychiatric disorder and that Claimant met the criteria to travel with an Emotional Support Animal. (Id.)

         On October 15, 2012 Claimant underwent an Internal Medicine Consultative Examination for Disability Determination Services (“DDS”) by Roopa Karri, M.D. (R. 707-712.) Upon mental status examination Dr. Karri opined that Claimant was able to relay a clear and concise medical history without apparent cognitive difficulties. (R. 710.) Claimant also showed no signs of depression, agitation, irritability or anxiety. (Id.) Dr. Karri also reported Claimant had a history of HIV with mildy decreased CD4 counts and undetectable viral loads. (Id.)

         A neurological exam taken on July 1, 2013 revealed normal results. (R. 863.) On January 12, 2014, Claimant met with Michael Johnson APN and reported that he was depressed and easily tearful, but denied any suicidal ideations. (R. 936, 939.) Claimant followed up on January 30, 2014 and reported that he did not want to go to therapy because it made him “bring up stuff” that he did not want to think about. (R. 951.) Claimant discussed coping strategies for his mood such as calling a friend to come over and play video games and walking his dog. (Id.) Claimant's current GAF score was listed as 71. (Id.)

         c. HIV

         Claimant was diagnosed with HIV in 2001 and it was noted throughout the record to be well controlled or unchanged. (R. 388, 531, 558, 566, 876, 899, 908, 923.) An HIV Report by DDS was taken on September 19, 2012. (R. 695-700.) The report indicated Claimant has eczema, chronicsinusitis, depression, fatigue and was limited in maintaining social functioning. (Id.) However, the spaces provided for further elaboration or explanation were left blank. (Id.) The record showed that Claimant would follow up for HIV Management approximately every three months. (R. 555.)

         d. Non-Examining Agency Consultants

         On May 22, 2012, non-examining State agency physician Bharati Jhaveri, M.D., reviewed the records and opined Claimant's impairments to be inflammatory bowel disease, sleep-related breathing disorders and affective disorders. (R. 99.) Non-examining State agency consultant Howard Tin, Psy.D., also reviewed the records and opined that Claimant had an affective disorder with mild restrictions in activities of daily living, no difficulties in maintaining social functioning, maintaining concentration, persistence or pace and no episodes of decompensation. (R. 99-100.) Upon reconsideration on November 1, 2012, non-examining State agency physician Calixto Aquino, M.D., reviewed the record and additionally concluded that Claimant's HIV was a severe impairment. (R. 127.) Dr. Aquino further opined that Claimant had mild restrictions in activities of daily living and no difficulties in the remaining B Criteria as previously found by Dr. Jhaveri. (R. 128.) Dr. Aquino opined that Claimant had the residual functional capacity to lift/carry up to 20 pounds occasionally and 10 pounds frequently, and could sit, stand, or walk for up to six hours in an eight-hour workday. (R. 131.)

         C. ...


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