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Michelle G. v. Berryhill

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

June 3, 2019

MICHELLE G., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Sidney I. Schenkier, United States Magistrate Judge

         Plaintiff, Michelle G., moves for reversal and remand of the final decision of the Acting Commissioner of Social Security ("Commissioner") denying her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") (doc. # 13). The Commissioner has filed a cross motion, asking the Court to affirm (doc. #21). The matter is now fully briefed. For the following reasons, we deny plaintiffs motion to remand and grant the Commissioner's motion to affirm.


         On February 29, 2012, at age 53, Ms. G. applied for DIB and SSI (R. 458-67), alleging an onset date of January 1, 2007, which Ms. G. later amended to May 30, 2008 (R. 56-57).[2] Her date last insured was March 31, 2011 (R. 18).[3] Ms. G.'s applications were denied initially and on reconsideration, and she sought and received a hearing before an Administrative Law Judge ("ALJ") on October 15, 2014, at which she testified along with medical and vocational experts (R. 99). On January 22, 2015, the ALJ issued a decision denying Ms. G.'s applications for benefits (R. 216-48), but the Appeals Council granted Ms. G.'s request for review and remanded the case to the ALJ (R. 250-52). On October 17, 2016, the ALJ held another hearing (R. 53), and on November 21, 2016, the ALJ issued a decision again denying Ms. G.'s claims for DIB and SSI benefits (R. 17-41). Lhis time, the Appeals Council denied Ms. G.'s request for review of the ALJ's decision, making the ALJ's ruling the final decision of the Commissioner (R. 1-3). See Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012).


         In 2003, Ms. G. reported to her internist, Steven Gallo, M.D., that she was having trouble swallowing and would sometimes choke or cough (R. 866). At that time, Ms. G. was diagnosed with thyroid nodules (R. 865).[4]

         Dr. Gallo also opined that Ms. G. had myasthenia gravis (R. 865), a condition characterized by weakness and rapid fatigue of muscles, which can lead to difficulties with chewing, swallowing, limb weakness and drooping eyelids (ptosis), among other symptoms.[5] Dr. Gallo prescribed Mestinon (Id.), which enhances the communication between nerves and muscles.[6] Ms. G. testified that she stopped working as a mail clerk in 2006 because her muscles would get stiff and sore after sitting or standing for long periods of time (R. 135), and she has not worked since then (R. 20).

         Ms. G. also received regular treatment from neurologist, Alan G. Shepard, M.D., to monitor her epilepsy, a condition she had had since childhood (R. 1108). Ms. G. had been seizure-free on Depakote and phenobarbital since 1982 (R. 856). In December 2005, however, Ms. G. reported blacking out and being confused for a few minutes (R. 909). Dr. Shepard described this as an "episode of syncope" (fainting or sudden, temporary loss of consciousness) that could have been a seizure, and he increased her dose of phenobarbital (Id.).[7] Dr. Gallo noted that Ms. G.'s last seizure in 1982 was of a similar type (R. 856).

         From 2006 through 2009, Dr. Shepard reported that Ms. G. was seizure-free and her myasthenia gravis was stable on Depakote, phenobarbital and Mestinon (R. 910-11).[8] However, in a disability report dated March 13, 2008, Ms. G. reported that she had seizures "often" (R. 537), and her mother, brother, and a friend, Paul Hlepas, submitted seizure description forms to the Bureau of Disability Determination Services ("DDS") in April 2008 stating that Ms. G. had more than one seizure per month, and they had each witnessed her having a seizure - on September 27, November 27, and December 23, 2007, respectively - which were characterized by wild and erratic movements (R. 552-54).

         In 2010, Dr. Shepard referred Ms. G. to neurologist Senda Ajroud-Driss, M.D., to treat her myasthenia gravis (R. 922). On May 5, 2010, Ms. G. reported to Dr. Ajroud-Driss that she had muscle stiffness and weakness in her thighs, hands, shoulders, and throat, which were alleviated with rest and Mestinon (R. 922-23). She also reported that her hand muscles locked up with repetitive movement, and she had intermittent swallowing and speech problems, numbness and tingling in her feet, and double or blurred vision (R. 923-24). On examination, Dr. Ajroud-Driss found Ms. G. had mild bilateral limitation of her lateral gaze, mild bilateral ptosis, mild lower facial/lip weakness, mild deltoid weakness bilaterally, and decreased deep tendon reflexes (R. 924-25). However, Dr. Ajroud-Driss stated that she could not confirm the myasthenia diagnosis in the absence of an EMG and blood and spirometry tests (measuring lung function) (R. 920-21, 925).

         In April 2011, Ms. G.'s brother, Mr. Hlepas, and an unidentified neighbor again submitted seizure description forms to DDS, this time stating that Ms. G. had less than one seizure per month, characterized by her whole body shaking or twitching of her hands and feet (R. 611-13). Mr. Hlepas and her brother stated they last witnessed a seizure in 2010, and the neighbor allegedly witnessed one in January 2011 (Id.). On June 2, 2011, Ms. G. reported to DDS internal medicine consultative examiner, Alexander Panagos, M.D., that she had three seizures per year; they lasted for five minutes and were not "full blown" tonic-clonic seizures (R. 933). She also reported weakness with repetitive movements and droopy eyelids (Id.). Dr. Panagos found Ms. G.'s examination was within normal limits but showed mildly impaired deep tendon reflexes (R. 934-35). On August 5, 2011, Dr. Shepard noted that Ms. G. had "no definite seizures, possibly some little ones" (R. 951).

         On December 28, 2011, Ms. G. followed up with Dr. Ajroud-Driss. Dr. Ajroud Driss noted Ms. G. had two abnormal spirometry tests and reported occasional leg pain, but her overnight oximetry test (measuring blood oxygen levels) and neurological evaluation were normal, which was not consistent with active myasthenia gravis (R. 983-84). Dr. Ajroud-Driss opined Ms. G.'s myasthenia gravis was in remission, and she should continue the same dose of Mestinon (R. 980).

         In April 2012, Ms. G.'s brother, Mr. Hlepas, and an unidentified friend submitted seizure description forms, this time stating that Ms. G. had more than one seizure per week (R. 681-83). Between the three of them, they alleged witnessing Ms. G. having seizures on January 12, 15, 18, 20, 24, and 27, and February 1, 10, and 11, 2012 (Id.). In addition, they described tonic-clonic or grand mal type seizures, stating that Ms. G. lost consciousness for between 10 and 20 minutes, jerked and thrashed, and lost control of her bladder and bowel movements (Id.).

         On May 3, 2012, Ms. G. told a DDS internal medicine consultative examiner that she had a seizure one week prior (R. 973). The examination was normal, and the examiner opined Ms. G. had a history of grand mal seizure disorder and "well controlled myasthenia gravis" (R. 974-75). On July 18, 2012, Dr. Ajroud-Driss again opined that Ms. G.'s myasthenia gravis was in remission, despite mild ptosis on the right, occasional double vision and swallowing difficulties, and mildly limited deltoid and hip flexors and deep tendon reflexes (R. 987).

         In September 2012, Ms. G.'s brother, Mr. Hlepas, and an unidentified friend again filled out seizure description forms (R. 704-06). They stated that Ms. G. had one or fewer tonic-clonic type seizures per month, and that they witnessed them on June 15, 2011, July 10 and 25, 2012, and August 15, 2012 (Id.). However, on December 6, 2012, Ms. G. reported to Dr. Shepard that the last seizure she had had was in April 2012 (R. 1076), and on January 9, 2013, Ms. G. told Dr. Ajroud-Driss that she had a grand mal seizure in May 2012 (R. 1093-94). On April 27, 2013, Ms. G. reported blacking out the previous day (R. 1020).

         On July 10, 2013, Ms. G. told Dr. Ajroud-Driss that she was having more shortness of breath and fatigue with exertion, and on examination, Ms. G. became fatigued after standing from a seated position three times (R. 1100). Dr. Ajroud-Driss opined that Ms. G.'s myasthenia gravis was "mildly symptomatic" (Id.).

         On April 1, 2014, Ms. G. followed up with Dr. Shepard (R. 1074). She reported having "a few episodes of flashing blue lights" and an occasional "migraine aura," but no new neurological issues (R. 1075). On examination, Ms. G. had mild lower left extremity weakness, but otherwise no significant changes (Id.), On May 19, 2014, Mahesh Shah, M.D., performed an internal medicine consultative examination for DDS (R. 1108). Ms. G. told Dr. Shah that she had three to five tonic-clonic type seizures each year (Id.). She also reported mild symptoms of myasthenia gravis, including some vision problems from ptosis, difficulty swallowing, and fatigue, but her symptoms were "fairly well controlled with medications" (R. 1108-11). On examination, Ms. G. was rested, and Dr. Shah reported that she exhibited full range of motion, normal gait and grip, normal strength, intact nerves, and full strength (R. 1110-11). However, Dr. Shah also wrote that "[o]nce she starts doing any physical activities, she starts having weakness of the muscle" (R. 1111). After the examination, Dr. Shah completed a physical residual functional capacity ("RFC") form, in which he opined that Ms. G. could do light lifting and sit for six hours, stand for four hours, and walk for one hour in an eight-hour work day, limited to only occasionally climbing ladders and scaffolds and being exposed to unprotected heights in case of muscle weakness (R. 1112-16).

         In February and March 2015, Ms. G. sought treatment with neurologist, Xabier Beristain, M.D. Ms. G. reported increased fatiguability over the last year and occasional double vision and trouble swallowing (R. 1332). Dr. Beristain observed Ms. G. had droopy eyelids, but normal speech, full ocular mobility and no facial weakness (R. 1334). He noted that a blood test was suggestive of myasthenia gravis, and he recommended Ms. G. continue taking Mestinon (Id.).


         As for her mental health, in June 2012, Ms. G. reported having increased stress due to personal upheaval, including taking care of her elderly mother (R. 684). On July 19, 2012, Ms. G. told Dr. Ajroud-Driss that she had attempted suicide by taking some extra phenobarbital pills; she vomited them up and did not seek medical treatment (R. 987). In October 2012, Ms. G. began meeting with therapist Jennifer Borland; Ms. G. reported having suicidal thoughts, but no intention to hurt herself (R. 1009-12). On November 27, 2012, a DDS psychiatric examination found Ms. ...

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