United States District Court, C.D. Illinois, Springfield Division
TERRIE L. FRYREAR, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
Schanzle-Haskins, United States Magistrate Judge
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.
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.),
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.
facts presented from the evidence produced after remand shows
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.
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.
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.
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. Dr. Sullivant
said that the “persistent nature of her sensory
complaints however are concerning.” R. 1205.
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.
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.
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.
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.
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.
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.
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.
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,
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
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.
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 ...