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Fryrear v. Commissioner of Social Security

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

October 24, 2019



          Tom Schanzle-Haskins, United States Magistrate Judge

         Plaintiff Terrie L. Fryrear appeals from the denial of her application for Social Security Disability Insurance Benefits (DIB) and Supplemental Security Income Disability benefits (SSI) under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416(i), 4231381a, and 1382c (collectively Disability Benefits). This appeal is brought pursuant to 42 U.S.C. §§ 405(g) and 1383(c). Fryrear has filed a Brief in Support of Motion for Summary Judgment (d/e 17) (Fryrear Brief), and Defendant Commissioner of Social Security has filed a Motion for Summary Affirmance (d/e 20). The parties have consented to proceed before this Court. Consent to the Exercise of Jurisdiction by a United States Magistrate Judge and Reference Order entered July 25, 2018 (d/e 8). For the reasons set forth below, the Decision of the Commissioner is AFFIRMED.


         Fryrear filed her applications for Disability Benefits in June 2010. She alleged that she became disabled on May 1, 2005. An Administrative Law Judge (ALJ) held a hearing on September 20, 2012. On December 14, 2012, the ALJ denied Fryrear's application. This Court reversed and remanded that decision. Fryrear v. Commissioner of Social Security No. 14-3083 (Fryrear I) d/e 18, Opinion entered February 23, 2016 (Fryrear I Opinion), a copy of which is included in the record, Certified Transcript of Proceedings Before the Social Security Administration (d/e 12 and 13) (R.), R. 866-910.

         This Court remanded the matter because the ALJ misread the 2007 sleep latency test. The test supported Fryrear's claim that she had narcolepsy, but the ALJ erroneously misread the test result and found Fryrear's daytime sleepiness not to be severe. Fryrear I Opinion, at 35-36, R. 900-01. The error also potentially affected other aspects of the decision. Id. at 36-40, R. 901-04. The evidence submitted prior to the remand, including the testimony at the September 20, 2012 hearing, and the evidence submitted to the Appeals Council after the ALJ's 2012 opinion, are set forth in detail in Fryrear I Opinion, at 2-26, 33-34, R. 867-91, 898-99. The Court will not summarize that evidence again in detail.

         The facts presented from the evidence produced after remand shows the following.

         Fryrear was born on March 17, 1984. She completed high school and attended some college courses. She previously worked as a shipping clerk, cashier in a fast food restaurant, and as an aide for older and disabled persons. She suffered from remote history of bilateral carpal tunnel syndrome with bilateral release surgery, Chiari malformation with history of surgery; narcolepsy; and Ehlers-Danlos syndrome by report. She last worked in January 2004. R. 36, 38, 59, 204, 684, 692-94, 796.

         On January 8, 2013, Fryrear saw her primary care physician Dr. Donna White, M.D. R. 1167. Dr. White commented on Fryrear's condition in her treatment notes:

She . . . has a new bottle [of eye drops] that she was trying to open when I walked into the room and was not able to open because of her lack of dexterity with her hands which all goes back to some type of rheumatologic or autoimmune disease that we have not ever been able to put a finger on. She has recovered from her exacerbation of whatever it is she has with the Prednisone but continues to have ongoing fatigue, myalgias and arthralgias. Is having increasing fine motor difficulty with her hands which makes it difficulty (sic) for her to do things. Gets frustrated because she is trying to get Disability which I actually think is very appropriate for her to be getting given her underlying autoimmune rheumatologic issue. It has resulted in her inability to sit or stand for any prolonged time. She lacks fine motor control to do a lot of writing or typing. She lacks the strength and control to do fine movements with her hands because of her arthralgias and myalgias. She is not able to do repetitive squatting, bending, lifting, pushing or pulling. She deals with the fatigue on a constant day to day basis. Pretty much making herself get out of bed to do stuff as she refuses to put herself into that sick role. . . . Review of systems positive for the fatigue, myalgias, arthralgias, difficulty gripping, hypersomnolence to the point where she will fall asleep even just standing at the bus stop waiting for the bus to pick her kids up for school. She has been tested in the past and was felt to possibly be narcoleptic. She is on treatment and it certainly helps but it does not totally resolve her symptoms in any way, shape, or form.

R. 1167. Dr. White refilled her prescriptions. R. 1168.

         On October 22, 2013, Fryrear saw neurologist Dr. Douglas N. Sullivant, M.D. R. 1201-05. Fryrear reported muscle weakness and numbness in her legs and hands for the past 10 to 12 years. She stated that in February 2010, half her body stopped working for six months. She reported that the weakness was getting worse. She also reported neuropathy in her legs. She said she had trouble walking up steps. She wore compression stockings all the time while she was awake. The stockings substantially improved her leg pain. She indicated that she got no relief from her carpal tunnel release surgery. She still drops things and her hands were cold constantly. She still had trouble with buttons and picking up paper. She reported that she exercised for half an hour each day on a stationary exercise bicycle. She started this exercise regime a few months before this office visit. R. 1201.

         On examination, Fryrear had 5/5 strength bilaterally throughout with normal muscle bulk and tone. Fryrear's sensory examination showed diminished pinprick sensation below the knees in both lower extremities and up to the elbows in both upper extremities. The sensory examination was otherwise normal. Fryrear did not need an assistive device to walk. Dr. Sullivant stated that Fryrear's sensory examination was “confusing.” Dr. Sullivant recommended more testing and an expanded workup to exclude small fiber neuropathy. Dr. Sullivant recommended tricyclic agents and to continue regular aerobic exercise. Dr. Sullivant concluded that Fryrear was “not regarded as classic for Charcot-Marie-Tooth disease.” R. 1204.[1] Dr. Sullivant said that the “persistent nature of her sensory complaints however are concerning.” R. 1205.

         On March 31, 2015, Fryrear saw nurse practitioner Donna Gail in Dr. White's office. Fryrear was complaining of headaches. R. 1169-73. She said she could not sleep at night. She said she could not lay her head down on a pillow. She said that Dr. White gave her injections in her head in the past that really helped. R. 1169. On examination, Fryrear's cranial nerves were intact, she had no speech difficulties, and she had normal gait with equal movement of all extremities. Nurse practitioner Gail administered trigger point injections and renewed Fryrear's prescriptions. R. 1171.

         On June 18, 2015, Fryrear saw Dr. Sullivant. R. 1188-94. Fryrear reported that treatment of her thyroid condition resulted in significant improvement of her symptoms of weakness and pain. R. 1188. She reported that she was engaging in aerobic exercising five or more days a week and also engaging in flexibility exercising. R. 1190. On examination, Fryrear had no sensory deficits and could ambulate independently. Dr. Sullivant made no diagnosis during this examination. R. 1192. Dr. Sullivant appended his prior finding that Fryrear's presentation was not classic Charcot-Marie-Tooth disease. R. 1193.

         On July 14, 2015, Fryrear saw Dr. White for a follow up. She reported that Dr. Sullivant diagnosed Charcot-Marie-Tooth disease. Dr. White described this disease as “a polyneuropathy that ultimately can lead to weakness, joint destruction, and increasing disability due to the polyneuropathy.” R. 1256. Fryrear was feeling the same with no new or worsening symptoms. Dr. White suggested seeing a nutritionist, but Fryrear declined. Fryrear reported that she would start some regular activity. R. 1257.

         On May 22, 2016, a medical expert secured by the ALJ, neurologist Dr. Ronald DeVere, M.D., reviewed Fryrear's records submitted to the Social Security Administration and completed a “Medical Interrogatory Physical Impairment(s)-Adults” form and a “Medical Source Statement of Ability to do Work-Related Activities (Physical)” form. R. 1238-48. Dr. DeVere opined that the records provided enough information to form opinions on nature and severity of Fryrear's impairments. Dr. DeVere identified carpal tunnel syndrome status post-surgery and Chiari malformation status-post decompression surgery with “improved walking etc.” Dr. DeVere opined that Fryrear's subsequent examinations for numbness and weakness were confusing. R. 1238-41.

         Dr. DeVere opined on whether Fryrear's impairments or combination of impairments met or equaled a Social Security Administration “Listing.” A “Listing” is an impairment that the Social Security Administration has determined is so severe that a person who has such an impairment is disabled without regard to the person's age, education, or work experience, provided that the person is not engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 416.920(d). These impairments are listed in the regulations at 20 C.F.R. Part 404, Subpart P, Appendix 1, and each such impairment is referred to as a Listing. Dr. DeVere opined that Fryrear's impairments did not meet or equal any Listing. R. 1241.

         Dr. DeVere opined that Fryrear could lift 20 pounds occasionally and 10 pounds frequently; sit two hours at a time for a total of six hours in an eight-hour day; stand and walk for 30 minutes at a time for a total of two hours in an eight-hour workday; walk without a cane; frequently reach, handle, and finger bilaterally; occasionally feel with hands bilaterally; occasionally operate foot pedals, climb stairs and ramps, balance, stoop, kneel, crouch, and crawl; never climb ladders or scaffolds; never work at unprotected heights; never work with moving mechanical parts of machines; occasionally drive; occasionally work in conditions that involved humidity, wetness, dust, odors, fumes and pulmonary irritants, extreme cold, vibrations, and moderate office noise; and never work in conditions that involved extreme heat. R. 1243-47.

         On June 1, 2016, Fryrear saw Dr. Donna White for a medication check and refills. R. 1249-54. Fryrear reported that she was doing okay, with some better days and some worse. She was concerned about an upcoming surgery for her daughter. She was worried about staying awake driving to and from her home in Loraine, Illinois and the hospital in Springfield, Illinois. Dr. White suggested short-term, fast acting stimulant in addition to her extended release Adderall. Fryrear also reported numbness and tingling. She said that she took some hydrocodone due to a pain flare up. She said that she did not exercise much. R. 1250. Dr. White suggested using the fast-acting stimulant to take in addition to her extended release Adderall to address her driving concerns. Dr. White renewed her medications. R. 1249, 1253.

         On June 20, 2016, Fryrear saw Dr. Sullivant complaining of left hip and right knee pain. Fryrear ambulated independently. Dr. Sullivant scheduled an EMG/nerve conduction study. R. 1262, 1267.

         On October 13, 2016, Fryrear saw neurologist Dr. Arun Varadhachery, M.D., Ph.D. for a consultation. R. 1309-11. Dr. Varadhachery stated that Fryrear had a history of long standing myalgias and unverified narcolepsy. On examination, Fryrear had full strength in her upper and lower extremities with normal muscle bulk. Her reflexes were 2 in biceps, knees, and ankles. Her finger-nose-finger testing was normal. Her gait and stance were normal. Fryrear could stand on her heels and her toes. She had some temperature and pinprick sensations abnormalities. R. 1310. Dr. Varadhachery concluded in his letter to Fryrear's doctors:

Impression: Terrie Fryrear is a 32-year-old woman with a variety of symptoms. She has no single chief complaint. From the neuromuscular perspective, the complaint of myalgias along with temperature and pinprick temperature sensation abnormalities are suggestive of a small fiber peripheral neuropathy. She has no weakness or evidence of large caliber nerve dysfunction to suggest a hereditary neuropathy or myopathy. Her neuromuscular function is good, discounting the pain issues. An Ehlers-Danlos variant may be a way to unify her small fiber neuropathy symptoms and the hyperextensible joint complaint.
Separately, she describes sleep spells/attacks along with collapsing in association with strong emotions. This description certainly could fit criteria for narcolepsy with cataplexy. I don't have any records of a sleep latency study that would otherwise confirm the sleep disorder diagnosis. It doesn't appear that her sleep disorder is directly related to the small fiber neuropathy complaint.
At this point I have no specific recommendations for further workup. Given her benign exam, I don't think an extensive [neuromuscular] work up would add substantively to her care. Focusing on symptomatic management with a combination of pharmacologic, physical and cognitive behavioral therapies seems to be the best pathway forward for her. I have asked her to seek your counsel on local resources.
Thank you for allowing us to consult on this case. If there is some issue that I have not been able to adequately address, please do not hesitate to contact me.

R. 1310-11.[2]

         On November 23, 2016, Fryrear saw Dr. White. R. 1300-03. Fryrear said she had not had any recent flare ups. She said that the compression hose worked well. She still had narcolepsy symptoms. She had moments during the day when she went to sleep suddenly. She could usually tell when the sudden sleepiness would come on her. She said her symptoms were better with the Adderall, but not gone. R.1300. On examination, Fryrear had a normal gait with no involuntary movements. She had full range of motion in her extremities. Her neurological ...

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