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Kathy H. v. Berryhill

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

August 7, 2019

KATHY H., Plaintiff,
NANCY A. BERRYHILL, Acting, Commissioner of Social Security Defendant.



         Currently before the Court is Plaintiff Kathy H.'s motion for summary judgment [45], seeking review of the Commissioner of Social Security's decision that Plaintiff is not entitled to a period of disability or disability insurance benefits. Plaintiff asks that the Court reverse the ALJ's decision and to find her disabled from April 16, 2010 or, in the alternative, remand the case for additional proceedings. Also before the Court is the Commissioner's motion for summary judgment [50]. The Commissioner asks that the Court enter a judgment affirming the ALJ's decision. For the reasons stated below, the Court denies Plaintiff's motion for summary judgment [45] and grants the Commissioner's motion for summary judgment [50]. The Court affirms the Commissioner's decision. Civil case terminated.

         I. Background[1]

         A. Procedural History

         This appeal marks Plaintiff's second request for judicial review regarding her application for disability benefits beginning as of April 16, 2010. On April 25, 2011, Plaintiff applied for a period of disability and disability insurance benefits, alleging that her disability began on June 23, 2006. [Administrative Record (“A.R.”) at 982.] Her application was denied on July 13, 2011. [Id.] She subsequently sought a hearing before an Administrative Law Judge (“ALJ”), which was held on July 19, 2012, and where Plaintiff, a medical expert, and a vocational expert testified. [Id. at 67-126.] On November 19, 2012, the ALJ found that Plaintiff was not disabled and could perform a significant number of jobs in the national economy. [Id. at 14-45.] Plaintiff then requested review of this decision, which the Appeals Council denied. [Id. at 1-6, 12-13.]

         Plaintiff appealed the Commissioner's decision (which became final after the Appeals Council denied review) to this Court on March 26, 2014. See generally [1]. Upon reviewing the record, Judge Zagel remanded the case to the Social Security Administration pursuant to sentence six of 42 U.S.C. § 405(g) in light of new evidence presented on appeal regarding one of Plaintiff's treating doctors, Dr. Bina Oommen. [Id.] The Appeals Council subsequently remanded Plaintiff's claim to the ALJ. [A.R. at 1168-71.]

         The ALJ conducted another hearing on August 18, 2017, at which Plaintiff, a psychological medical expert, a physician medical expert, and a vocational expert testified. [Id. at 1012-69.] On September 13, 2017, the ALJ issued a partially favorable decision to Plaintiff, finding her disabled as of May 19, 2015, but not prior to that date. [Id. at 999.] The Commissioner and Plaintiff subsequently motioned to reopen this action. See generally [39]; [42]. This Court granted both motions and reopened the case. See generally [44]. Plaintiff subsequently filed a motion for summary judgment [45], arguing that the ALJ had made a number of errors that resulted in her failure to find Plaintiff disabled prior to May 19, 2015.

         The ALJ noted, and the parties agree, that although Plaintiff claims disability as of June 23, 2006, the relevant period at issue begins on April 16, 2010. [Id. at 982]; [46, at 2]; [51, at 2].[2]Thus, Plaintiff specifically appeals the ALJ's finding that she was not disabled from April 16, 2010 to May 19, 2015.

         B. Relevant Medical Evidence

         Plaintiff alleges that she qualifies as disabled due to the following constellation of conditions: lower back problems, fibromyalgia, lumbar radiculopathy, neuropathy in the right leg, urinary incontinence, a bulging disc in her lower back, loss of balance, sacroiliac joint dysfunction, a mood disorder, nerve problems, and ankle problems. [A.R. at 1449.] She stopped working in 2006 due to these conditions. [Id.] Prior to that, Plaintiff worked as medical assistant. [Id. at 1057.] In addition to the ailments listed above, Plaintiff claims to suffer migraine headaches every other day, [id. at 1457], and maintains that she cannot use a checking or savings account because of her inability to concentrate. [Id. at 1461]. Her conditions also affect her ability to stand, sit, walk, hear, concentrate, use her hands, and follow instructions, among other things. [Id. at 1462.] Plaintiff takes medication for some of these conditions-Atenolol for high blood pressure, Tramadol for pain; Xanax for anxiety, and Sumatriptan for migraines. [Id. at 1490.]

         C. The August 18, 2017 Hearing before the ALJ

         On August 18, 2017, the ALJ held a hearing regarding Plaintiff's eligibility for disability benefits from April 16, 2010 to present. [Id. at 1014.] Plaintiff, represented by counsel, testified at this hearing in addition to Dr. Larry Kravitz, a psychological medical expert, Dr. Chukwuemeka Ezike, a physician medical expert, and Leanne Kerr, a vocational expert. [Id. at 1012-69.]

         1. Plaintiff's Testimony

         Plaintiff testified that she stopped working in 2007 because of an accident in 2006. [Id. at 1018.] Her right leg fell into a sinkhole which damaged her lower back, pelvis, and leg. [Id. at 1018-19.] She explained that the injuries to her lower back and legs as well as her migraines- which she stated occur three times a day and cause her to vomit 10 to 15 times a week-have prevented her from returning to work. [Id. at 1029.] She has had migraines since she was in her twenties and takes medication for them, which sometimes helps but is completely ineffective at other times. [Id. at 1040.] She also stated that her ailments cause her so much pain that she cannot bear to be touched, including by her husband. [Id. at 1035.] Although she received a Lyrica prescription to assuage her fibromyalgia, Plaintiff reported that she stopped taking the medicine because it made her very dizzy and did not replace the Lyrica with anything else. [Id. at 1035- 36.]

         Plaintiff's weight has increased from 125 pounds at the time of her accident in 2006 to 252 pounds as of the date of her testimony. [Id. at 1029.] Additionally, she has smoked consistently for the last ten years, but does not use an y other drug, including alcohol. [Id. at 1022-23.] Plaintiff has never gone to see a psychiatrist or psychologist. [Id.] With regard to physical therapy, Plaintiff testified that she had lost count of how many times she has been to physical therapy and that her insurance does not cover it anymore. [Id. at 1025-26.] Plaintiff spends most of her days in bed, watching tv and trying to get sleep. [Id. at 1026.] She wakes up between five to seven times a night. [Id. at 1031.]

         Plaintiff began using a walker in April 2017 and used a cane for approximately three to four years before to that. [Id. at 1025.] She has had many issues with her legs, including neuropathy, [3] meralgia paresthetica, [4] groin and hip pain, SI joint dysfunction, a twisted pelvis, and ankle surgery from falling down the stairs. [Id. at 1037-40.] Finally, Plaintiff also has had trouble with her hands, stating that she can move them for about five to ten minutes before they start getting numb and swollen. [Id. at 1067.]

         2. Psychological Medical Expert's Testimony

         The ALJ obtained testimony from an impartial clinical psychologist Larry Kravitz, Ph.D. [Id. at 1040.] Dr. Kravitz asked Plaintiff if she took any medications for depression or anxiety. [Id. at 1042.] Plaintiff responded that she has been taking Xanax three times a day for the last thirty years. [Id.] After reviewing the medical evidence and hearing Plaintiff's testimony, Dr. Kravitz explained that the evidence regarding Plaintiff's psychiatric condition was very limited and somewhat vague. [Id. at 1043.] For example, he noted that Plaintiff had been diagnosed with a dysthymic disorder, but that her mental status as of September 2015 was fairly intact, except that she had some difficulty with short-term memory. [Id.] Additionally, despite the absence of any current psychological documentation, Dr. Kravitz concluded that the dysthymic disorder continues to be a critical diagnosis as Plaintiff seems to have a sense of hopelessness, a depressed mood, and some level of anhedonia.[5] [Id.] Given the limited amount of treatment Plaintiff had received for her mental issues, Dr. Kravitz recommended that the ALJ should either have Plaintiff reevaluated and procure an updated mental health status or give Plaintiff at least a moderate limitation in concentration, pace, and persistence. [Id.] He added that he “would find it unlikely that she'd be able to persist on more than a simple, routine tasks in the work environment on a consistent basis.” [Id.] Dr. Kravitz further testified that he believed that Plaintiff had mild restrictions to remembering and understanding information, mostly because he did not have enough documentation to support a finding beyond that. [Id. at 1044.] Finally, Dr. Kravitz stated that fibromyalgia, from a mental point of view, could affect someone's concentration and memory, because the pain-referred to as a “fibro fog”-distracts the person and makes concentration difficult. [Id. at 1045.]

         3. Testimony of Physician Medical Expert

         The ALJ also obtained testimony from an impartial physician, Chukwuemeka Ezike, PhD. [Id. at 1046.] Dr. Ezike explained that Plaintiff's medically determinable impairments included: lumber degenerative disc disease, cervical disc herniation, right lateral femoral neuropathy, left ulnar nerve entrapment, left ankle fracture, obesity, fibromyalgia, and migraine headaches. [Id. at 1047-48.] He then concluded that these impairments did not fall into any Social Security Administration listing. [Id. at 1048.] Dr. Ezike also specified that Plaintiff has had chronic pain since at least 2010. [Id. at 1054.] Finally, Dr. Ezike provided Plaintiff's residual functional capacity. In Dr. Ezike's estimation, Plaintiff could sit for six hours per day and stand for two hours. [Id. at 1048.]

         4. Testimony of Vocational Expert

         Finally, the ALJ obtained testimony from an impartial vocational expert, Leanne Kerr. [Id. at 1057.] After noting that Plaintiff previously worked as medical technician, Kerr opined that Plaintiff could no longer work in that position. [Id. at 1059.] Nonetheless, Kerr proceeded to explain that Plaintiff could work certain positions based on her age, education, work experience, and residual functional capacity. [Id. at 1058.] These positions included “telephone clerk, ” “account clerk, ” and “order clerk, ” all which are sedentary and unskilled and have a Specific Vocational Preparation (“SVP”) level of two. [Id. at 1059.] The ALJ then asked what kind of jobs Plaintiff could work given Plaintiff's representations that she could only have limited social interactions with the public and coworkers. [Id.] Kerr responded that although Plaintiff could still work as an account clerk with those limitations, the order and telephone clerk positions would have more public interaction than Plaintiff's restrictions. [Id.] She therefore ...

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