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Myers v. Astrue

August 26, 2009


The opinion of the court was delivered by: Nan R. Nolan United States Magistrate Judge

Judge Nan R. Nolan


Plaintiff Ronald R. Myers claims that he is disabled due to bilateral vocal cord paralysis; permanent tracheostomy; schizoaffective disorder; and depression. He filed this action seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. 42 U.S.C. § 1381a. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and have now filed cross-motions for summary judgment. For the reasons set forth here, Plaintiff's motion is granted in part and denied in part, and the Commissioner's motion is denied.


Plaintiff applied for SSI on November 10, 2005, alleging that he became disabled on September 1, 1998 due to breathing problems, speech problems and a trachea in his throat. (R. 159.) The application was denied initially on February 8, 2006, and again on reconsideration on March 10, 2006. (R. 78, 85-88, 90-93.) Plaintiff appealed the decision and requested an administrative hearing, which was held on September 19, 2006. Less than a week later, on September 25, 2006, Administrative Law Judge Michael R. McGuire (the "ALJ") denied Plaintiff's claim for benefits, finding that he was capable of performing light, unskilled work. (R. 78-84.)

Plaintiff appealed the decision, and on February 16, 2007, the Appeals Council remanded the case to the ALJ for further consideration. (R. 22-24, 127-28.) The ALJ held a new hearing on November 13, 2007, at which time Plaintiff's counsel amended his disability onset date to November 10, 2005. (R. 48.) On June 10, 2008, the ALJ again denied Plaintiff's claim for benefits.

(R. 12-20.) The ALJ found that Plaintiff's paralyzed vocal cords and permanent tracheostomy are severe impairments, but that he retains the residual functional capacity ("RFC") to work as a file clerk or general office clerk. (R. 15, 19.) This time, the Appeals Council denied Plaintiff's request for review, and he filed a timely complaint with the district court. (R. 1-3.) Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner.


Plaintiff was born on February 15, 1964 and was 44 years old at the time of the ALJ's June 10, 2008 decision. (R. 140.) Beginning in grade school, he was placed in special education classes, and he dropped out of school in the 10th grade. (R. 29, 62, 336-37.) Plaintiff worked as a paper cutter/printer in 1989 and 1992; as a tank cleaner for a chemical company from 1997-1998; and as a forklift operator in 1997 and from 2000-2001. (R. 160.) From June 21, 2001 to December 2005, Plaintiff was incarcerated at the Logan Correctional Center on charges of residential burglary.

(R. 31, 67, 70, 204, 336-37.)

A. Medical History

In 1989, Plaintiff was hit in the head with a baseball bat, which left him in a coma for six months. (R. 291.) Upon recovering from the coma, Plaintiff lost control of his vocal cords, presumably as a result of a neurological injury. (R. 252.) In 1999, he was diagnosed with "[b]ilateral vocal cord paralysis secondary to old trauma, prolonged intubation." (R. 299.) He had a permanent tracheostomy at that time due to difficulty breathing and swallowing, as well as increasing hoarseness. (R. 291-300.) By December 23, 1999, Plaintiff had made "remarkable changes" and was "totally able to take care of his permanent trach tube." (R. 296.) He could speak without putting his finger up and was "virtually back to normal." (Id.)

The next medical records date from the time of Plaintiff's incarceration. Between July 2001 and May 2002, Plaintiff received treatment from the Cermak Health Center because of shortness of breath, difficulty swallowing and neck pain related to the tracheostomy. (R. 303, 305, 306, 310, 312-14.) By May 8, 2002, however, progress notes reported that Plaintiff was "doing well" and "stable," and "not having problems [with his] tracheostomy tube." (R. 325.) The notes further indicated that Plaintiff had been working for approximately four months in the "RU Medical area in the clothing department." (Id.) Records from the Logan Correctional Center reflect that Plaintiff needed and received regular care for the cleaning of his tracheostomy tube. (R. 227-51.)

Also during his incarceration, on November 5, 2004, Plaintiff underwent a mental health evaluation with Richard Ibe, Ph.D. Plaintiff told Dr. Ibe that he had received prior treatment for mental health or emotional issues from the age of 18 to 25, and that he had been prescribed Mellaril, an antipsychotic drug used to combat schizophrenia. ( He made no complaints of depression, anxiety or recent thoughts of harming himself or others, and he denied trying to harm himself in the past. (R. 230.) Dr. Ibe found Plaintiff to have a normal mood and affect, and "a clear and stable mental status." Dr. Ibe concluded that Plaintiff did not need any mental health services at that time. (Id.)

On January 13, 2006, Scott A. Kale, M.D., J.D., M.S., performed an internal medicine consultative examination of Plaintiff for the Bureau of Disability Determination Services. (R. 252-55.) Dr. Kale observed that Plaintiff's tracheostomy was "[w]ell healed," "in place," "clean" and "not leaking air." (R. 253.) Plaintiff's lungs were clear at that time, "without rales, rhonchi or wheezes." (Id.) Dr. Kale reported that Plaintiff's speech was "somewhat whispering, but nevertheless, clearly understood across the distance of 15 feet." A mental status examination revealed that Plaintiff was well-dressed, alert, appropriate, polite and cooperative, with normal memory and ability to relate.

(R. 254.) Dr. Kale's clinical impression was "[s]tatus post tracheostomy placement secondary to trauma and resulting vocal chord paralysis with complaints of shortness of breath on exertion, not apparent on this exam." (R. 255.)

Shortly thereafter on February 2, 2006, Plaintiff went to the emergency room at John H. Stroger, Jr. Hospital ("Stroger Hospital") complaining of itching and dryness inside his tracheostomy tube. (R. 280.) The ER physician diagnosed him with, and treated him for cellulitis, a skin infection caused by bacteria. ( The doctor referred Plaintiff to the Fantus Health Clinic, where he received further treatment on February 7, 2006. (R. 277, 279.)

Also on February 7, 2006, Plaintiff underwent a physical RFC assessment with Vidya Madala, M.D. (R. 256-63.) Dr. Madala found that Plaintiff can occasionally lift 20 pounds; frequently lift 10 pounds; stand and/or walk for six hours in an eight-hour workday; and push and pull without limitation. (R. 257.) He has no postural, manipulative or visual limitations, but his speech is "somewhat whispering" and he is "unable to perform work-related activities which require a normal or loud speaking volume." (R. 258-60.)

Plaintiff had CT scans of his chest and neck on April 4, 2006. (R. 273-76.) The tests showed that his endotracheal and tracheostomy tubes were both in place and he had no pleural effusions or metastatic disease to the heart. (R. 273.) There was some "[t]hickening of the right [vocal] cord" but no evidence of mass or lymphadenopathy. (R. 275.) The following month, on May 16, 2006, Plaintiff returned to the Stroger Hospital ER complaining of depression. He was neither suicidal nor homicidal at that time, and the doctor scheduled him for an appointment with a psychiatrist on August 11, 2006. (R. 271-72, 361.) According to Plaintiff, it was around that time, in June 2006, that a physician at ...

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