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McKinnie v. Astrue

March 26, 2010


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


Plaintiff Frank McKinnie claims that he is disabled because of arthritis, muscle spasms, back pain, gout, hypertension, and obesity. He seeks judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying his claims for Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 405(g), 1383(c)(3). The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and have filed cross-motions for summary judgment. For the reasons explained below, the ALJ's decision is reversed and this case is remanded for further proceedings consistent with this opinion.


Mr. McKinnie applied for DIB and SSI on August 1, 2006, alleging that he became disabled on April 15, 2001.*fn1 (R. 155-62). The application was denied initially on September 28, 2006, and upon reconsideration on December 20, 2006. (R. 74-77). Mr. McKinnie appealed the Commissioner's decision and requested an administrative hearing on January 29, 2007. (R. 101). The hearing was held before an Administrative Law Judge (the "ALJ") on July 10, 2008. (R. 30-73). On September 11, 2008, the ALJ denied Mr. McKinnie's claims for benefits. (R. 15-17). The ALJ found that Mr. McKinnie has multiple severe impairments, but that he retains the capacity to perform jobs that exist in sufficient numbers in the national economy. (R. 18-29). On December 19, 2008, the Appeals Council denied Mr. McKinnie's request for review. (R. 1-3). Thereby, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R § 416.1481.


Mr. McKinnie was born on November 24, 1959, and was 48 years old at the time of the hearing before the ALJ. (R. 159). He has two years of college education. (R. 38). Mr. McKinnie's injuries date back to a car accident in 1989. (R. 39-40). He testified that he had to undergo therapy "to learn how to walk and everything again" after the accident. (R. 40). Mr. McKinnie then worked as a fork lift operator and materials handler until April 15, 2001, when he ceased working entirely. (R. 169). Mr. McKinnie sought certification in asbestos removal in 2003, but he was unable to complete the physical portions of the training and thus could not commence work in the field. (R. 38-39).

A. Medical Evidence

Although several of Mr. McKinnie's impairments stem from his 1989 car accident, the first medical report in the record is from February 6, 2003, when Mr. McKinnie sought a physical from his regular physician, Dr. Bernie Thomas of the W oodlawn Adult Health Center, pursuant to Mr. McKinnie's asbestos removal training. (R. 253). At that appointment, Dr. Thomas evaluated Mr. McKinnie for hypertension, examined his wrist and the pin that had been placed in it following his car accident, and subsequently determined that Mr. McKinnie had tested positive for Hepatitis B. (R. 216-17).

The next medical report in the record is from October 25, 2005, when Mr. McKinnie had another checkup with Dr. Thomas. (R. 250). Dr. Thomas' notes are generally illegible, but Dr. Thomas did note clearly that Mr. McKinnie still complained of lower back pain and knee pain, as well as right wrist and right ankle trauma from the 1989 car accident. Id. Dr. Thomas also noted tenderness on examination and a limited range of motion, and prescribed Robaxin, Ibuprofen, and Tylenol. Id. At Mr. McKinnie's hearing, the ALJ noted that there were no medical reports in the record from February 2003 to October 2005. (R. 51). Mr. McKinnie explained that this gap exists because "my grandmother started forcing me to go to the doctor more because I'm actually afraid of doctors." Id.

Mr. McKinnie returned to Dr. Thomas for three more checkups between January and July of 2006. (R. 248-49, 251). Notes from these checkups reveal diagnoses of hypertension and obesity, as well as referral to an orthopedic specialist to further examine Mr. McKinnie's lingering injuries from the 1989 car accident. Id. On February 23, 2006, Mr. McKinnie underwent x-ray examinations at Stroger Hospital of Cook County for multiple pain sites. (R. 234-41). The x-rays revealed mild diffuse degenerative changes in Mr. McKinnie's right ankle, left knee, right wrist, and spine. Id. On April 3, 2006, an orthopedic doctor reviewed the x-rays and examined Mr. McKinnie's right ankle, left knee, right wrist, and spine. (R. 242). The orthopedist's full diagnosis is difficult to discern, but his notes reveal findings of osteophytes on Mr. McKinnie's spine and right wrist. Id. The orthopedist also noted that surgery was not needed at the time, but that Mr. McKinnie should return to his regular treating physician to manage his chronic pain. Id.

Mr. McKinnie also underwent consultative examinations by the Bureau of Disability Determination Services ("DDS") in September of 2006. (R. 22). Liana G. Palacci, D.O., performed the first consultative examination on September 12, 2006. (R. 221-24). Her clinical impressions were complaints of low back pain and history of right ankle fracture. (R. 224).

Next, non-examining medical consultant, Barry Free, M.D., reviewed Mr. McKinnie's file for allegations of arthritis, lower back pain and a broken right ankle on September 21, 2006. (R. 226-27). Dr. Free found Mr. McKinnie had cooperated but that there was not enough objective medical evidence to make a disability determination. Id. Paul Smalley, M.D., another nonexamining medical consultant, also examined the file on September 21, 2006, and found Mr. McKinnie's combination of impairments to be non-severe. (R. 228-29). Upon reconsideration on December 12, 2006, Calixto Aquino, M.D., a third and final non-examining medical consultant, confirmed Dr. Smalley's assessment without explanation.

Mr. McKinnie returned to see Dr. Thomas regarding his health conditions in January, May, and September of 2007. (R. 262-64). During the May 2007 examination, Dr. Thomas first diagnosed Mr. McKinnie with gout and also noted a diagnosis of "CKD." (R. 263). Dr. Thomas reconfirmed this diagnosis of gout during the September 2007 examination, and again noted a diagnosis of "CKD." (R. 262). The most common medical definition of "CKD" is Chronic Kidney Disease.*fn2

The final two medical reports in the record are Dr. Thomas' answers to an Arthritis Residual Functional Capacity Questionnaire on February 14, 2008 (R. 244-46) and Dr. Thomas' notes from a checkup with Mr. McKinnie on April 7, 2008. (R. 261). W ith regard to Mr. McKinnie's Residual Functioning Capacity ("RFC"), Dr. Thomas noted diagnoses of CKD, gout, and hypertension. (R. 244). He stated that Mr. McKinnie experienced pain at an intensity of 8, with objective signs of reduced range of motion, joint instability, sensory changes, tenderness, redness, and muscle spasms. Id. Dr. Thomas opined that Mr. McKinnie's symptoms would frequently be severe enough to interfere with the attention and concentration needed to perform simple work tasks during a typical workday. (R. 245). Dr. Thomas further asserted that Mr. McKinnie could remain standing and sitting for 30 minutes each before needing to change positions, and that in an 8-hour workday he could sit and stand/walk for less than 2 hours each, although he would not need a job that would permit shifting positions from sitting, standing, or walking at will. Id. Dr. Thomas also stated that with prolonged sitting Mr. McKinnie's legs should be elevated to a level of 4 feet; if Mr. McKinnie had a sedentary job, his legs would need to be elevated 15% of the time. Id. Mr. McKinnie could never lift 50 or even 20 pounds in a competitive work situation according to Dr. Thomas, but he could rarely lift 10 pounds and occasionally less than 10 pounds. (R. 246). Dr. Thomas concluded that Mr. McKinnie's impairments were likely to produce "good days" and "bad days," and that we would be absent from work due to his impairments four days per month on average. Id. At the final checkup in the record from April 7, 2008, Dr. Thomas again noted diagnoses of gout and CKD. (R. 261).

B. Plaintiff's Testimony

Mr. McKinnie testified before the ALJ on July 10, 2008, with attorney Matthew Edwards as his counsel. (R. 30-73). As noted above, Mr. McKinnie testified that his injuries began with a motor vehicle accident in 1989. (R. 39). Following his recovery, which took two and a half years, Mr. McKinnie could no longer work in construction as he had before. (R. 40). He testified that he was able to perform forklifting jobs for several years, but quit forklift work in 1998 because he could not handle the pains from driving the forklift anymore. Id. Mr. McKinnie then transitioned to work as a material handler, which involved lifting 40 to 50 pounds at times, but he testified that he got to the point where he could not do that work anymore either because he was losing his balance frequently. (R. 40-41).

Mr. McKinnie further testified that he then started trying to see his physician more often due to his "severe pains." (R. 41). He stated that he suffered broken bones in his car accident of 1989 that ranged from his ribs through his left knee, including his wrist in three places. (R. 41-42). Surgeons could not operate on his back at the time, Mr. McKinnie testified, because the damage was too close to his spinal cord. (R. 42).

Mr. McKinnie explained that he lives on the second floor of a family-owned apartment building with his aunt and uncle. (R. 42). He needs to use the handrail to get up and down the stairs to the apartment. Id. He does not drive and has not driven for "some years," because his feet would go numb on the pedals. (R. 42-43). Mr. McKinnie testified that in his daily life he does not help with any household chores, other than trying to wash a few dishes to keep his wrist activated as part of his therapy. (R. 43). He also testified that he tries to use the vacuum because it is good exercise to move back and forth and it helps his balance. Id. Mr. McKinnie said he uses public transportation "[s]ometimes, but not too much." (R. 44).

Mr. McKinnie stated that he spends his days trying to keep moving so that he can avoid muscle spasms that force him to lie down, and so that he can ambulate without using his assistive devices. Id. Mr. McKinnie testified that he was using an umbrella on the day of the hearing instead of a cane because he "can't carry both," but that he has "a cane, crutches, walker, and a wheelchair." (R. 45-46). He testified that he uses his crutches when his feet get so swollen that he can't put pressure on them, and his cane on a regular basis for balance. (R. 46-47). On one occasion six months prior to the hearing, the swelling of his feet got so bad, Mr. McKinnie testified, that he fell and injured himself and had to be taken to the emergency room. (R. 48, 50, 53). Mr. McKinnie testified that every time he moves, his body "pop[s] like popcorn." (R. 51). He testified that he wears back and ankle braces from time to time. (R. 52). Mr. McKinnie takes medicine for muscle spasms, arthritis, gout, high blood pressure, high cholesterol, and pain. (R. 52-53).

Mr. McKinnie testified that he was worse off at the time of the hearing than he was when he attempted the asbestos removal class in 2003. (R. 57). He testified that by October of 2005 he was having painful back spasms every day. (R. 59). Mr. McKinnie testified that he would have good days and bad days. On bad days, he could not get up properly and he would have to sit in the bathtub and do his therapy for "two or three hours" before he could try to "start the day over again." (R. 59). He testified that he usually sits in a wheelchair or a recliner during the day to elevate his legs and "keep off the pressure so the fluid could run back down." (R. 49, 60-61, 64). W hen asked how far off the ground he needed to elevate each leg usually, the record reflects that Mr. McKinnie "guess[ed] about 3" or more, maybe farther" so that he could "straighten it out." (R. 61-62). The following exchange then occurred between Mr. McKinnie and his counsel:

Q: -- ...

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