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McGraw v. Berryhill

United States District Court, C.D. Illinois, Springfield Division

June 22, 2018

THELMA I. McGRAW, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION

          TOM SCHANZLE-HASKINS UNITED STATES MAGISTRATE JUDGE

         Plaintiff Thelma I. McGraw appeals from the denial of her application for Social Security Disability Insurance Benefits (Disability Benefits) under Title II of the Social Security Act. 42 U.S.C. §§ 416(i) and 423. This appeal is brought pursuant to 42 U.S.C. § 405(g). McGraw filed a Motion for Summary Judgment titled Brief in Support of Motion for Summary Judgment (d/e 14). The Defendant Commissioner filed a Motion for Summary Judgment entitled Motion for Summary Affirmance (d/e 15). McGraw filed a Reply (d/e 17) to Defendant's Motion for Summary Judgment. The parties consented to proceed before this Court. Consent to the Exercise of Jurisdiction by a United States Magistrate Judge and Reference Order entered January 2, 2018 (d/e 13). For the reasons set forth below, the Commissioner's Motion for Summary Judgment is ALLOWED, McGraw's Motion for Summary Judgment is DENIED, and the decision of the Commissioner is AFFIRMED.

         STATEMENT OF FACTS

         McGraw was born on September 3, 1951. She secured a GED and took some college courses. She previously worked as a coordinator/receptionist-secretary. She alleged that she became disabled on June 1, 2012 (Onset Date). She qualified for Disability Benefits through December 31, 2015 (Date Last Insured). McGraw suffers from status post breast cancer surgery and treatment, status post shoulder surgery and hip surgery, left knee arthritis, diabetes, obesity, asthma, gastroesophageal reflux disease (GERD), and vision impairments. Certified Copy of Transcript of Proceedings before the Social Security Administration (d/e 11) (R.), at 22, 24-25, 59, 61-62, 227.

         In 2002, McGraw underwent right hip replacement surgery. R. 72. She also underwent shoulder replacement surgery on each shoulder, one in 2004 and the other in 2007. R. 71; see e.g., R. 490. She continued working until April 2010. She retired at that time to take care of her husband. She has not worked thereafter. R. 80, 227, 234.

         On March 13, 2011, McGraw underwent a chest x-ray due to a cough and congestion. The x-ray showed some scarring in the left mid lung, but no acute pulmonary abnormalities, and no other abnormalities. R. 354.

         On January 24, 2012, McGraw saw Dr. Venu Reddy, M.D., for a follow-up examination after a pulmonary function test (PFT), methacholine challenge, sleep study, and chest x-ray. R. 577-79. McGraw reported that she was not able to sleep well. She reported severe insomnia. The PFT and methacholine challenge were normal. The sleep study showed no evidence of obstructive sleep apnea. On examination, McGraw's lungs were clear bilaterally to auscultation. Dr. Reddy assessed cough with unclear etiology, no evidence of sleep apnea, and moderate to morbid obesity. R. 578.

         On June 20, 2012, McGraw underwent a mammogram, which identified lumps in her right breast. Subsequent biopsies established that she had breast cancer. Later in June 2012, McGraw underwent a lumpectomy, and then a right modified radical mastectomy and a prophylactic left mastectomy. R. 472.

         On August 31, 2012, McGraw saw Dr. Mark Khil, M.D., for evaluation and consideration for radiation therapy. R. 473. McGraw reported that she had no headaches, dizziness, blurry vision, or episodes of seizures or strokes. She reported a history of insomnia. On examination, McGraw was 5 feet 3 ½ inches tall and weighed 288 pounds. Dr. Khil recommended chemotherapy followed by radiation. McGraw had already seen Dr. Christian El-Khoury, M.D., to schedule the chemotherapy. McGraw agreed to Dr. Khil's planned radiation therapy. R. 475.

         On November 20 2012, McGraw saw nurse practitioner Lisa Kauffman, CNP, for a follow-up visit during chemotherapy. McGraw was receiving six cycles chemotherapy treatment every 21 days. McGraw reported that she was feeling better, but had moderate fatigue. Her chest x-ray taken November 14, 2012, was clear. McGraw reported numbness in her toes. On examination, her lungs were clear to auscultation. Her blood sugar was 178. Kauffman assessed breast carcinoma and fatigue. R. 387-88.

         On December 5, 2012, McGraw saw Dr. El-Khoury for a follow-up during her chemotherapy treatments. McGraw's toes hurt “without much neuropathy.” The toes were slightly red and swollen. On examination, McGraw's lungs were clear. Dr. El-Khoury noted that McGraw would receive her last chemotherapy treatment on December 20, 2012. R. 391.

         On January 30, 2013, McGraw saw Dr. Raymond P. Smith, M.D. Dr. Smith stated that McGraw received her last chemotherapy treatment on January 9, 2013. On examination, McGraw's lungs were clear with no rales, rhonchi, or wheezes. Her blood sugar was 168. McGraw reported that she had her best night's sleep in months. Dr. Smith stated that she would continue the recovery from chemotherapy phase of her treatment. R. 402.

         On March 12, 2013, McGraw saw Dr. El Khoury for a follow-up. McGraw was undergoing physical therapy for lymphedema. McGraw reported not having much pain. She reported some pain in the left popliteal area.[1] She also had grade I neuropathy, which was improving. Her fatigue was also better. R. 408. Dr. El Khoury planned a “Doppler” to see if she had a popliteal cyst. R. 409.

         Radiation therapy followed the chemotherapy. On April 3, 2013, McGraw completed the radiation therapy. R. 477.

         On April 29, 2013, McGraw saw Dr. Christopher Wagoner for a three-month diabetes check. R. 523-26. McGraw's A1c was “fantastic at 6.0.”[2]McGraw denied having blurry vision. R. 523. On examination, McGraw had normal breath sounds. She had a normal gait, no joint swelling, normal movement in all extremities, no joint instability, and normal muscle strength and tone. McGraw's feet were swollen. Her toes appeared normal. R. 526. Dr. Wagoner noted that McGraw's asthma was controlled. He adjusted her insulin dosage. R. 526.

         On May 2, 2013, McGraw saw Dr. Khil for a post-radiation treatment follow-up. McGraw was stable and otherwise unremarkable. Dr. Khil scheduled McGraw for a follow-up appointment in six months. R. 480.

         On or about May 8, 2013, McGraw completed a Function Report- Adult form. R. 264-71.[3] She reported that she lived in a house with family. She said she required “lots of rest.” R. 264. She said that in a usual day, she showered and dressed, prepared meals for herself and her husband, did simple housework and laundry, drove to laundromat, grocery, and “many” doctors' appointments for herself and her husband. R. 265. She said she could not do “heavy housework, yard work, drive as much as needed. Carry things heavy.” She said she had problems sleeping. R. 265.

         McGraw said she prepared simple meals because she could not stand for long periods. She said she washed dishes and performed “simple cleaning, ” laundry, and cooking. She said her sons and brothers did the “heavy work, ” yardwork, and carrying for her. R. 266. She said she could not do yardwork because she felt weak, she tired easily, and she often did not feel well. R. 267. She went grocery shopping three times a week so she could buy a “little bit at a time” because she could not carry much. R. 267. She rode scooters while in grocery stores. R. 270. She was able to pay her bills, handle her own funds. R. 267.

         She said her hobby was researching genealogies. She used a computer to conduct this research. She did not use the computer more than three times a week because she tired easily. She talked to friends and relatives on the phone and went to church regularly. R. 268-69.

         McGraw opined that she could not lift more than 10 pounds; she could walk 50 feet before she needed to rest 10 to 30 minutes; she could pay attention one to three hours; she finished what she started unless she was tired; she could follow instructions and get along with authority figures; and she could handle stress and changes in routine. R. 269-70.

         On August 26, 2013, McGraw saw Dr. Christopher Wagoner, M.D., for a diabetes check. R. 501-05. Her blood sugar logs ranged from 141 to 377 with an average reading of 233. McGraw reported that she was fatigued; but she had no shortness of breath, no wheezing, and no cough. She reported joint pain and muscle aches; but no joint swelling, stiffness, muscle weakness, or loss of strength. She had no headaches, no numbness, no tingling. R. 501. On examination, she had clear breath sounds bilaterally, a normal gait, normal movement of all extremities, no joint swelling, no joint instability, and normal muscle strength and tone. Dr. Wagoner assessed stress and prescribed amitriptyline to reduce stress and help McGraw sleep. R. 505.

         The same day August 26, 2013, McGraw saw state agency physician Dr. Joseph Kozma, M.D., for a consultative examination. R. 482-87. McGraw reported that she last worked in April of 2009. She reported that she had diabetes and her last A1c was 7.2. She reported she had diarrhea after every meal. She said she was not able to walk a block. She said she was unstable when she walked. She did not use a cane or crutches. R. 482. She reported that she had migraines occasionally. She said her diabetes was poorly controlled. She said she had diabetic neuropathy in her legs. R. 483.

         On examination by Dr. Kozma, McGraw was 63 inches tall and weighed 272 pounds. McGraw's visual acuity was 20/20 with correction. McGraw's lungs were clear to percussion and auscultation. McGraw had normal strength in her extremities. McGraw had decreased range of motion in her shoulders. She had normal grip strength and normal finger dexterity. Sensory examination and reflexes were normal. R. 484-85.

         McGraw could heel walk and toe walk. She could squat ¾ of the way. Straight leg raising was 50 degrees bilaterally. She had a normal gait. Dr. Kozma observed no instability in her walking. McGraw could use her hands for both fine and gross manipulations. R. 485-86.

         Dr. Kozma stated that McGraw “has a rather strong emotional attachment to her various symptoms. She is rather convinced that they are quite incapacitating.” R. 486. Her medical records indicated that her hypertension and diabetes were not well controlled. R. 486.

         On August 28, 2013, state agency physician Dr. B. Rock Oh, M.D., prepared a Physical Residual Functional Capacity Assessment of McGraw. Dr. Oh opined that McGraw could occasionally lift 20 pounds and frequently lift 10 pounds; could stand and/or walk six hours in an eight-hour workday; could sit six hours in an eight-hour workday; could frequently climb stairs and ramps; could occasionally climb ladders, ropes, and scaffolds; and was limited in reaching overhead with her right arm. Dr. Oh opined that McGraw had no other functional limitations due to her impairments. R. 93-95

         On September 9, 2013, McGraw saw Dr. Wagoner for a two-week checkup after starting protonix for GERD. R. 489-93 On examination, McGraw's lungs had clear bilateral breath sounds and no cough. McGraw had a normal gait, no joint swelling, normal movement of all extremities, no joint instability, muscle strength and tone were normal. R. 492. Dr. Wagoner assessed essential hypertension, depression, GERD, and insomnia. R. 493.

         On February 18, 2014, McGraw completed another Function Report-Adult form. R. 287-95. She reported that she lived alone in her house. She said that she could not sleep for up to five days at a time. She did not sleep well even when she went to sleep. She said she had no stamina. She said she carried groceries “in stages” or she used a children's toy wagon to carry them. She said she did not have much strength. R. 287.

         She said that she shopped only for necessities. She also went to the laundromat and visited her husband at the nursing home where he resided. He husband had dementia. She said she could not drive for more than 45 minutes. She said her insomnia has gotten worse since the last report. R. 288.

         McGraw reported that she prepared her own meals. She prepared “quick simple things” because she could not stand for long periods. She no longer prepared big family meals. She did laundry, dishes, and light vacuuming with breaks. R. 289. She did no yardwork. R. 290. She drove to the nursing home daily to see her husband. She shopped only when necessary. She could pay her bills and manage her funds. R. 290.

         McGraw described her hobbies as “Reading, genealogies, TV, grandkids.” She sat in a wheelchair when she went anywhere with her grandchildren. She visited with others during the day, which included eating with them and going to movies with them. She went regularly to church, the nursing home, and the pharmacy. R. 291.

         McGraw opined that the farthest distance she could walk was “to the car.” She then had to rest 10 to 15 minutes. She had no problems paying attention. She finished what she started “unless I fall asleep.” She could follow instructions and get along with authority figures. She tried to handle stress, but “when it is too much I cry.” She could handle changes in routine. R. 292-93.

         On February 24, 2014, McGraw's aunt Marva Hurst completed a Function Report-Adult-Third Party form. R. 299-306. Hurst said that she spent two to five hours with McGraw daily. Hurst said they ate together, watched television, and went shopping. She said McGraw could not stand or walk very long before her knee gave out. She said McGraw could not carry much and had a difficult time catching her breath. Hurst said McGraw spent her days going to the doctor, the pharmacy, the laundromat, the nursing home, and visiting her. R. 299.

         Hurst said McGraw had trouble sleeping. Hurst said McGraw had difficulty bending to dress and wash herself. R. 300. Hurst said that McGraw prepared her own meals, but did not take much time doing so. Hurst said McGraw did her own laundry and “basic housework.” Hurst said McGraw needed help carrying laundry to and from the laundromat. R. 301. She said McGraw's sons did the yardwork. She said McGraw used a motorized grocery cart to shop for groceries. She said McGraw could pay her bills and manager her funds. R. 302.

         Hurst said that McGraw visited her husband daily. She said McGraw also visited friends and family, including Hurst. McGraw also went to church. McGraw had someone accompany her when she drove out of town. R. 303.

         Hurst opined that McGraw could lift a maximum of 10 pounds; McGraw could not squat or bend; could not stand for long; and could walk 50 feet before needing to rest for 10-15 minutes. Hurst said McGraw could pay attention, follow instructions, get along with authority figures, handle stress, and handle changes in circumstances. R. 304-05.

         On March 26, 2014, state agency physician Dr. Michael Nenaber, M.D., prepared a Physical Residual Functional Capacity Assessment of McGraw. R. 103-05. Dr. Nenaber's assessment was identical to Dr. Oh's assessment in August 2013.

         On September 19, 2014, McGraw saw ophthalmologist Dr. Robert Weller, M.D., for a diabetic eye examination. R. 703-05. McGraw's visual acuity was 20/30 in the right and 20/20 in the left. R. 703. Dr. Weller diagnosed senile cataracts in both eyes and non-exudative senile macular degeneration of the retina in the right eye. R. 703.[4]

         On November 7, 2014, McGraw saw Dr. Wagoner for a three-month diabetes check. R. 758-63. McGraw's A1c was 6.0, no change from previous check. McGraw reported headaches in the evenings sometimes. The headaches resolved “quickly/spontaneously.” R. 758. On examination, McGraw had clear bilateral breath sounds, normal gait, no joint swelling or joint instability, normal movement of all extremities, normal muscle strength and tone, and full range of motion in the extremities. R. 762. Dr. Wagoner adjusted McGraw's diabetes medication. R. 762.

         On February 9, 2015, McGraw saw Dr. Wagoner for a three-month diabetes check. R. 850-54. McGraw reported her blood sugar was running 120-130, and she was having headaches and fatigue. R. 850. On examination, McGraw had normal breath sounds bilaterally, normal gait, no joint swelling, normal movement in all extremities, no joint instability, normal muscle strength and tone, and full range of motion in her extremities. McGraw's feet and toes were not swollen. McGraw had normal tactile sensation with monofilament testing, normal position sense, and normal vibratory sensation bilaterally. R. 853-54. Dr. Wagoner assessed diabetes mellitus type II, controlled. R. 854.

         On April 15, 2015, McGraw saw ophthalmologist and retina specialist Dr. Kevin Blinder, M.D. McGraw's vision was 20/50-2 in the right eye and 20/20 in the left. McGraw had cataracts in both eyes and sub-retinal fluid in the right eye. Her retinas were attached in both eyes. She had no leakage of fluid out of either eye. Dr. Blinder assessed cataracts in both eyes, right worse than left; and possible central serous chorioretinopathy.[5] Dr. Blinder recommended removing the right cataract. R. 901.

         On April 28, 2015, McGraw saw ophthalmologist Dr. Robert Weller, M.D., for a pre-operative visit. R. 875. On May 12, 2015, Dr. Weller performed the surgical removal of McGraw's cataract in her right eye. R. 996.

         On June 3, 2015, McGraw saw Dr. Blinder. McGraw's visual acuity was 20/50-1 in the right eye and 20/40 in the left. Dr. Blinder found sub-retinal fluid in the right eye, but none in the left. Dr. Blinder's impression was possibly central serous chorioretinopathy and pseudophakia in the right eye and cataract in the left.[6] Dr. Blinder treated her right eye with an injection. R. 909. The injection consent form stated that the diagnosis was age-related macular degeneration. R. 911.

         On July 22, 2015, McGraw saw Dr. Blinder. McGraw's visual acuity was 20/50 in the right eye and 20/40-2 in the left. Dr. Blinder's examination showed pseudophakia in the right eye and a cataract in the left. Dr. Blinder's impression was probable occult choroidal neovascularization of the right eye versus central serous chorioretinopathy.[7] On July 22, 2018, Dr. Blinder again treated her right eye with an injection. R. 919.

         On July 31, 2015, McGraw saw podiatrist Dr. Duane Hanzel, D.P.M., for thickened and discolored toenails, and a routine clinic follow-up of diabetic feet. R. 836-40. On examination, McGraw had abnormal dorsalis pendis pulse and abnormal capillary refill.[8] She had normal response to light touch and normal response to monofilament testing. R. 839. Dr. Hanzel assessed peripheral neuropathy and debrided her toenails. R. 839-40.

         On September 3, 2015, McGraw saw Dr. Blinder. McGraw's visual acuity was 20/50 in the right eye and 20/30 in the left. Examination showed pseudophakia in the right eye and cataract in the left. Dr. Blinder's impression was central serous chorioretinopathy in the right eye, possibly choroidal neovascularization; pseudophakia in the right eye; and cataract in the left. McGraw agreed to undergo a laser treatment in her right eye in the near future. R. 924.

         On September 29, 2015, McGraw saw Br. Blinder. McGraw reported that her vision was out of focus in both eyes at night. R. 929. McGraw's visual acuity was ...


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