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John L. v. Berryhill

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

June 25, 2019

JOHN L., Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          HON. JEFFREY CUMMINGS, UNITED STATES MAGISTRATE JUDGE

         Claimant John L. (“Claimant”)[1] brings a motion for summary judgment to reverse the final decision of the Commissioner of Social Security (“Commissioner”) that denied Claimant's claim for a period of disability and Disability Insurance Benefits (“DIBs”) under 42 U.S.C. §§ 416(i) and 423(d) of the Social Security Act. The Commissioner has brought a cross-motion for summary judgment seeking to uphold the Social Security Agency's decision to deny benefits. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). This Court has jurisdiction to hear this matter pursuant to 42 U.S.C. §§ 405(g) and 138(c)(3). For the reasons stated below, Claimant's motion for summary judgment [10] is granted and the Commissioner's motion for summary judgment [18] is denied.

         I. BACKGROUND

         A. Procedural History

         On March 28, 2012, Claimant filed a Title II application alleging a disability onset date of December 16, 2010. (R. 133). His claim was denied initially on July 27, 2012 and upon reconsideration on December 10, 2012. (R. 113, 170-72). On February 27, 2015, an Administrative Law Judge (“ALJ”) issued a written decision denying benefits to Claimant. (R. 133-57). The Appeals Council denied review on July 27, 2017, making the ALJ's decision the Commissioner's final decision. (R. 1-5). Zurawski v. Halter, 245 F.3d 881, 883 (7th Cir. 2001). Claimant subsequently filed this action in District Court.

         B. Medical Evidence

         Claimant suffers from sleep apnea, parasomnia, [2] degenerative disc disease of the lumbar spine, anxiety, a mild cognitive impairment and bilateral hearing loss with tinnitus. Only Claimant's parasomnia is relevant to the Court's assessment of the ALJ's decision.

         1. Evidence From Claimant's Treatment History

         On February 21, 2011, Claimant sought treatment for sleep problems with sleep specialist Dr. Phyllis Zee. Claimant told Dr. Zee that he had difficulty falling asleep and staying asleep. At the time of the consultation, Claimant went to bed between 11p.m. and 2 a.m. but woke up every two hours, often from hearing sounds “like a sizzle.” (R. 398-99). Dr. Zee diagnosed Claimant with “possible exploding head syndrome (except no exploding sound)” and mild obstructive sleep apnea.[3] (R. 400). Claimant told Dr. Zee that he heard sounds when he was sleepy four to five times a day or when he shifted his attention. (R. 399). Dr. Zee noted that Claimant had received a sleep apnea diagnosis in 2010 and was currently using a CPAP machine for it. She added a CPAP pillow to his sleep protocol and encouraged him to take a low dose of melatonin before bedtime. (R. 400-01). Claimant followed up with Dr. Zee one year later on February 13, 2012. He told her that he fell asleep easily but awoke at 4 a.m. with tinnitus and could not go back to sleep. (R. 403). Dr. Zee noted that Claimant was using his CPAP machine without problems and that he had only had one episode of exploding head syndrome in the last two months. (R. 407).

         Claimant met with Dr. Vanessa Kim on November 21, 2013 and told her that although he used his CPAP machine daily he was often in bed eight to ten hours with only minimal sleep. (R. 667). Dr. Kim referred Claimant to a sleep clinic. Before Claimant was able to comply with Dr. Kim's recommendation, Dr. Carmen Rosario referred Claimant for a neurological exam after he complained to her of “crashing” sounds and “explosions” in his head. (R. 660). A brain MRI and a head magnetic resonance angiography (“MRA”) were carried out on April 28, 2014, showing early ischemic changes without gross abnormalities. (R. 512). On September 3, 2014, neurologist Dr. Rasheed Izad-Yar noted that both tests were “negative” and “unremarkable.” (R. 728). Dr. Izad-Yar stated that no tests or treatment exist for exploding head syndrome and that he suspected that Claimant's complaints were hypochondriacal in nature “given [his] multiple complaints spanning multiple organ systems and frequent self-referrals for evaluations.” (R. 729).

         Claimant expanded his complaints about exploding head syndrome on August 1, 2014 by telling Dr. Elizabeth Apolonio that he was having three to four dozen episodes each week and that his symptoms ranged from a sizzling sound to loud explosions. (R. 811). Claimant told Dr. Ward on September 11, 2014 that he had experienced five to six explosive sounds that day and that he woke up every hour from it. (R. 803). On October 2, 2014, Claimant met with Dr. James Wyatt at the Rush Hospital Sleep Disorder Clinic. Dr. Wyatt prescribed a routine during which Claimant would go to bed at 4 a.m. for the first week and arise at noon every day “regardless of how you slept that night.” Claimant was then to sit near a window or go outside for an hour between noon and 2 p.m. (R. 972).

         In addition to treatment for exploding head syndrome, Claimant also pursued a range of treatments for other conditions. Claimant complained of cognitive difficulties. Neurologist Dr. Darren Gitelman stated on August 4, 2011 that he had “a mild deficit” in some aspects of his memory and “very subtle difficulties” in attention and executive functions. (R. 440). Dr. Eric Brehem, however, determined on September 15, 2011 that no cognitive dysfunction existed and that Claimant's perception that it did could be attributed to his sleep disorder, environmental distractions, or his heightened awareness that sleep problems may cause cognitive difficulties. (R. 451).

         2. Evidence From the State Agency Consultants

         On June 12, 2012, psychologist Dr. Robert Neufeld examined Claimant on behalf of the Social Security Administration and issued a report. Dr. Neufeld noted that Claimant was cooperative and had normal affect. He could remember eight digits forward and five digits in reverse with no problem in accessing “personally meaningful remote memory items.” Dr. Neufeld determined that Claimant had a mild anxiety disorder that was focused on his current life situation. (R. 387-89).

         State agency expert Dr. Young-Ja Kim found on July 26, 2012 that Claimant suffered from the severe impairments of hearing loss and an anxiety disorder. Dr. Kim did not find that these impairments imposed any limitations on Claimant's physical abilities but stated that restrictions were required on his ability to hear and to work with hazards such as machinery and working at heights. (R. 105-08). Psychological expert Dr. Donna Hudspeth issued a separate report on June 21, 2012 finding that Claimant suffered from an affective disorder and an organic mental disorder. (R. 120). Dr. Hudspeth stated that these impairments imposed a mild restriction on Claimant's activities of daily living (“ADLs”) and moderate restrictions on his social functioning and ability to maintain concentration, persistence, or pace. (R. 120).

         Psychologist Dr. Angelica Ortiz examined Claimant on September 5, 2013 and issued a report. Dr. Ortiz noted that Claimant had experienced a significant amount of stress following his son's suicide in 2006 though the panic attacks that he experienced at that time had since abated. (R. 463). He displayed a broad affect during the examination and showed no evidence of hallucinations or delusions. Claimant could repeat five digits forward and three backward. Tests that Dr. Ortiz applied during the examination showed that Claimant had above-average normal intellectual functioning. Unlike Dr. Neufeld, however, Dr. Ortiz determined that Claimant had a poor ability to recall past memories. Dr. Ortiz concluded that Claimant suffered from an anxiety disorder that imposed, at most, mild restrictions on his ability to carry out complex instructions and make judgments about complex work problems. Claimant had no limitations in his ability to interact with supervisors, co-workers, or the public. (R. 462-69).

         On her own motion, the ALJ also submitted interrogatories to non-examining psychological expert Dr. Mark Oberlander. On January 5, 2015, Dr. Oberlander issued his opinion concerning Claimant's ability to carry out work-related tasks. He found that Claimant suffered from an anxiety disorder and an organic mental disorder that included sleep apnea, tinnitus, parasomnia, and a mild cognitive impairment. (R. 979). Dr. Oberlander determined that Claimant had no restrictions in understanding simple instructions, had mild limitations in carrying out complex instructions, and had a moderate restriction in making complex work-related decisions. Claimant had a mild limitation in interacting appropriately with supervisors but had no other restrictions in dealing with the public or co-workers. (R. 975-77).

         C. Evidence From Claimant's Testimony

         Claimant appeared at a November 12, 2013 hearing that the ALJ held after noting that Claimant intended to appear without counsel or a non-attorney representative. The ALJ advised Claimant of his right to representation and delayed the hearing to give him an opportunity to obtain counsel. The ALJ also requested additional documents from the Veterans Administration (“VA”) and Northwestern Hospital on Claimant's behalf. (R. 92-97). A brief second hearing was held on April 22, 2014. The ALJ continued that hearing, however, to permit Claimant to complete medical tests that had already been scheduled at the VA clinic and to give him additional time to find an attorney to represent him. (R. 80-81).

         Claimant appeared at the third hearing on October 9, 2014 without counsel. He stated that he had contacted an attorney who declined to represent him and that he wished to proceed without counsel. Claimant testified about his exploding head syndrome by telling the ALJ that when he was sleepy he heard explosions in his head up to 30 times an hour or more. (R. 30). Claimant described the sound as like a shotgun that wakes him up. He also hears explosions when he shifts his focus while concentrating on something. (R. 31). He wakes up ten times a night. (R. 46). Claimant told the ALJ that one doctor had prescribed a blood pressure medication to treat his symptoms but he was unable to take it until he completed his sleep therapy. (R. 32-33). Claimant goes to bed at 4 a.m. and rises at noon, sits by a window for an hour, then eats breakfast. (R. 38).

         D. The Medical and Vocational Experts' Testimony

          Medical expert Dr. Ronald Semerdjian also testified at the October 2014 hearing. Dr. Semerdjian described exploding head syndrome (which he called “exploding headaches”) was rare and placed it in the same category as migraine headaches. (R. 55). Based on Claimant's May 2014 hip x-ray, Dr. Semerdjian testified that he would be limited to sedentary work. (R. 61).

         Vocational expert (“VE”) Linda Gels was also present at the hearing. The ALJ asked her if a hypothetical person with Claimant's RFC could carry out his past work as a document preparer. The VE testified that such a person would be able to perform that task as it is described in the Dictionary of Occupation Titles.[4] (R. 70-72).

         E. The ...


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