Cohen, Diane M. v. Astrue, Michael J.

258 F. App'x 20
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 17, 2007
Docket07-1329
StatusUnpublished
Cited by19 cases

This text of 258 F. App'x 20 (Cohen, Diane M. v. Astrue, Michael J.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohen, Diane M. v. Astrue, Michael J., 258 F. App'x 20 (7th Cir. 2007).

Opinion

ORDER

Diane Cohen last worked in 1989 when she was 37 years old. She left her office job while pregnant, and elected not to return to the workforce after her daughter was born in June 1989. 1 As a consequence of staying at home, her insured status for Social Security disability purposes expired on December 31, 1991. By then Cohen had been diagnosed with multiple sclerosis (MS) and migraine headaches, but not until March 2003 did she apply for disability benefits (alleging onset in 1989). Her claim was denied, and Cohen requested a hearing before an ALJ. The ALJ agreed with Cohen that by the time her insured status had ended she was suffering from severe impairments and also was no longer gainfully employed. But although MS (on which the parties focus) is a “listed impairment” that compels a finding of disability if severe enough, the ALJ concluded that Cohen’s MS had never reached the point of meeting or equaling the MS listing or any other listing. The ALJ reasoned Cohen was eligible for benefits only if, by the time her insured status ended, her MS had progressed to the point that she no longer could return to work. The ALJ concluded that it had not. In this appeal Cohen frames several issues, but essentially she contends that the ALJ should have found that her MS had progressed to the point of meeting the MS listing, or at least would have kept her from returning to work, before her insured status ended. The ALJ’s finding is supported by substantial evidence. We therefore uphold the denial of benefits.

Background

Except as noted, the following account is taken from contemporaneous medical records and the reports of all physicians prepared in connection with Cohen’s application for benefits. It is undisputed that Cohen had MS at the time of her alleged onset of disability in June 1989. The previous month her dentist had referred her to a Chicago-area neurologist after x-rays ruled out a dental abnormality as the source of her complaints of toothaches and numbness in her face. Although the neurologist’s report is not included in the record, it appears that he ordered an MRI resulting in the diagnosis of Cohen’s condition as MS.

Dr. Donald Goodkin confirmed this diagnosis in July 1989 after Cohen sought a second opinion from him while visiting family in Cleveland, Ohio. Goodkin noted that Cohen was “alert, oriented and conversant,” had 20/25 vision, showed no evidence of drift or focal weakness and displayed normal sensation and reflexes in her arms. Goodkin noted that “point-to-point testing,” which he did not explain, was normal except for a “superimposed *22 posterior tremor” that did “not produce functional impairment.” He did find that “rapid alternating rhythmical movements show a very minimal suggestion of impairment in the right hand,” but noted that Cohen was “not aware of this.” Goodkin reported “brisk” reflexes in Cohen’s knees and normal sensation in her legs, and he saw no obvious impairment while observing her gait and conducting heel-to-shin testing. Goodkin described Cohen’s general’ appearance as “healthy,” and noted that, although she complained of stiffness in her leg while standing up, she reported that the headaches that plagued her in the past were no longer a problem.

Cohen returned to Illinois and in December 1989 was treated at the neurology department of Loyola University Medical Center in Maywood, Illinois. At that time Cohen reported that she felt very tired, was suffering from ringing in her left ear, had diminished vision, and was tripping over her tongue. The neurologist’s records show that Cohen had a steady gait, good muscle strength (4 on a scale out of 5) in her right biceps, and normal muscle strength (5 of 5) in her left biceps, right and left triceps, and legs. Cohen reported decreased sensation on the right side of her face and her right leg, and the neurologist noted that although Cohen presented some symptoms of MS she did not display acute exacerbations of these symptoms.

After December 1989, as far as the administrative record reflects, Cohen waited another year before seeking further treatment related to motor function as a result of MS. She did see an ophthalmologist in April 1990 and reported difficulty reading and occasional spots of haze. The ophthalmologist suspected Cohen was suffering from MS retinopathy, but further tests indicated her vision was within normal limits.

Then in December 1990, Cohen began seeing Dr. Floyd Davis, a neurologist at the Rush-Presbyterian-St. Luke’s Medical Center and she told Davis that she was “doing very well” and was “ok now” except for fatigue, occasional tingling of the right hand and foot, blurred vision, and headaches. Davis referred her to occupational therapist Lindsay Barnes. Cohen likewise told Barnes that her symptoms included fatigue and headaches. Cohen reported to Barnes that she was responsible for homemaking and childcare, and that she functioned independently in all self-care and homemaking tasks.

Cohen next saw Dr. Davis in July 1991, just six months before her insured status expired. Davis, in his records, described Cohen as “doing good.” He noted that her vision was okay and she was getting fewer headaches, on average one a week, but that she would have to go to sleep if it was severe, and that she was always tired. Davis prescribed medication for the headaches and referred Cohen to Dr. Kenneth Moore to advise her on headache management. On the same day, Cohen completed an MS questionnaire, on which she described her ability to walk as “functional” and reported she could stand, get in and oiit of bed or the bath, and roll from side to side in bed without difficulty.

Cohen followed up with Dr. Moore for headache treatment in September 1991. She told him that she had been having severe headaches for 10 years and had a family history of headaches. She reported that over the years she sometimes had headaches five to six times a week and that most were “moderate,” and while painful they did not prevent her from continuing normal activities. Sometimes, however, she was absent from work or stopped doing household chores because of the pain. Cohen saw Moore again in October and November 1991, and said in No *23 vember that she was “doing pretty good” and that the medication he prescribed for her migraines “works most of the time but not always.”

Cohen’s insured status expired on December 31, 1991. During the following year she saw Dr. Davis and Dr. Moore on just one occasion each. She told Moore in February 1992 that she had not had a severe headache for several weeks and was not experiencing side effects due to her medication, and she told Davis in August 1992 that her MS was “fíne.”

After Dr. Moore moved his practice to Michigan, Cohen began seeing Dr. Hans Evers, a headache specialist. During her first visit in May 1993, Evers noted that Cohen was experiencing both migraines, which she started having at age 18, and tension headaches. Evers reviewed Cohen’s headache medications and made adjustments.

Cohen continued to see Dr. Davis and Dr. Evers. In August 1993 she told Davis that she had not suffered a headache for three months. She told Evers in October 1993 that currently she was not experiencing any severe migraines, and only a few moderate migraines and occasional tension headaches.

Dr. Evers left private practice in 1994, and Evers referred Cohen to Dr. Lawrence Robbins, another headache specialist.

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Bluebook (online)
258 F. App'x 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-diane-m-v-astrue-michael-j-ca7-2007.