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James Mckinney v. Michael J. Astrue

August 22, 2011


The opinion of the court was delivered by: Magistrate Judge Michael T. Mason


Michael T. Mason, United States Magistrate Judge:

Plaintiff, James McKinney ("McKinney" or "claimant"), filed a motion for summary judgment [21] seeking review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying McKinney's claim for disability benefits under the Social Security Act, 42 U.S.C. §§ 416(i) and 423(d). The Commissioner filed a response [23] asking this Court to affirm the decision of the Administrative Law Judge. We have jurisdiction to hear this matter pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, McKinney's motion for summary judgment is granted in part and denied in part.


A. Procedural History

McKinney filed an application for period of disability and disability insurance benefits ("DIB") on February 16, 2007, alleging disability due to syringomyelia and Chiari malformations.*fn1 (R. 114-116.) Claimant alleged an onset date of November 10, 2006. (Id.). The Social Security Administration denied McKinney's application initially on April 4, 2007, and upon reconsideration on July 16, 2007. (R. 66 -70, 74-77.) Thereafter, claimant made a timely request for a hearing. (R. 79.) On April 23, 2009, claimant appeared with counsel for a hearing before Administrative Law Judge Joel G. Fina ("ALJ" or "ALJ Fina"). (R. 23-59.)

On May 7, 2009, ALJ Fina issued a written opinion denying McKinney's claim for disability benefits. (R. 8-19.) McKinney filed a timely request for review of the ALJ's decision, (R. 60), which the Appeals Council denied on March 5, 2010. (R. 1-3.) The ALJ's ruling then became the final decision of the Commissioner. See Zurawski v. Halter, 245 F. 3d 881, 883 (7th Cir. 2001). This action followed.

B. Medical History

1. Claimant's Treating Physicians

The majority of the medical records in evidence were submitted by claimant's treating physician, Dr. Diana Burda. During a May 14, 2004 visit with Dr. Burda, McKinney reported that he had discontinued treatment with a neurosurgeon. (R. 250.) Claimant told Dr. Burda that "there's nothing else [the neurosurgeon] can do" for him. (Id.) On April 14, 2005, claimant entered the emergency room at Palos Community Hospital complaining of right side facial pain and a headache associated with syringomyelia and Chiari malformations.*fn2 (R. 264.) A head CT revealed a mucous retention cyst within the left maxillary sinus. (R. 266.) On June 15, 2006, an associate of Dr. Burda at Adult Medical Associates examined claimant and noted that he experienced "severe lower abdominal pain" after heavy lifting. (R. 245.)

McKinney was admitted to Palos Community Hospital on September 19, 2006 after he went to the emergency room complaining of lower back pain. (R. 224-225.) According to McKinney, the pain started when he was reaching for something in the refrigerator. (R. 224.) His legs got weak and he fell to the floor. (Id.) The emergency room physician noted claimant's "unusual history of Arnold-Chiari syndrome," as well as his history of spasms in the left side of his body, and a loss of some function to the left side. (Id.) The doctor further reported that claimant appeared to have less sensation in his left foot than his right. (Id.)

Dr. Burda examined claimant at Palos Community on September 20, 2006. (R. 228-229.) She noted that McKinney had "a past medical history significant for spinal surgery with shunt with Arnold-Chiari deformity and brain surgery repeated in 1998 with permanent disability, paresthesias, and spasms for which he takes Neurontin." (R. 228.) Dr. Burda obtained a CT scan of claimant's lumbar spine and found "small disc bulges at the L3-4, L4-5, and L5-S1 levels." (R. 235.) Dr. Burda also noted mild facet hypertrophy at the L3-4 level, mild central spinal stenosis and facet arthropathy at the L4-5 level, and facet hypertrophy at the L5-S1 level. (Id.)

Dr. Burda submitted a memorandum from claimant's neurosurgeon, Dr. Abdul Amine, dated November 10, 2006. (R. 253.) It appears that McKinney visited Dr. Amine on November 7, 2006, complaining of spasms, pain, and discomfort in the back of his neck, left arm, and left shoulder. (Id.) Dr. Amine indicated that McKinney had not visited his office since December of 2002 and that claimant "was known to have syringomyelia, which was treated. His Arnold Chiari was decompressed." (Id.) Dr. Amine stated that he did not have "much to offer" McKinney and recommended a prescription for Prolexine and Elavil. (Id.)

On October 9, 2008, McKinney visited Dr. Burda at Blue Island Medical Center.

(R. 313.) Dr. Burda stated that McKinney was "sent here by his lawyer to start disability papers." (Id.) She referenced a "brain problem" and a history of "seizure spasms." (Id.)

Dr. Burda completed a Physical Impairment Residual Functional Capacity ("RFC") Questionnaire for claimant dated March 5, 2009. (R. 306-11.) In this document, Dr. Burda diagnosed McKinney with "Arnold Chiari and Syringomyelia," and found him incapable of even low-stress jobs. (R. 306, 308.) Dr. Burda indicated that McKinney had spasms ten to twenty times a day, often causing him pain severe enough to interfere with attention and concentration. (R. 307.) She found that McKinney could sit, stand, or walk with normal breaks for less than two hours in an eight-hour work day.

(R. 308.) His impairments would "likely produce good and bad days," result in work absences more than four times a month, and require him to take unscheduled breaks during an eight-hour work day. (R. 309, 311.)

2. State Agency Consultants

On March 27, 2007, Dr. M.S. Patil completed a consultative examination of claimant for the Bureau of Disability Determination Services. (R. 285-89.) Dr. Patil indicated that claimant had been diagnosed with syringomyelia twenty years ago. (R. 288.) He reported that McKinney treated his syringomyelia with cerebral shunting and surgery on the back of his neck that resulted in mild numbness in his left extremities. (R. 285, 288.) He noted that claimant reported recurrent muscle spasms in his left leg and arm. (R. 285.) McKinney told Dr. Patil that he had "seizures" and described them by stating, "my left extremities lock up on me once or twice a week for a minute or two." (Id.) These incidents caused claimant mild pain in his left arm and leg and occurred when he performed "a lot of physical work." (Id.) McKinney denied loss of consciousness, clonic/tonic movements, biting of the tongue, loss of bladder/bowel control, headaches, blurry vision, and gait imbalance. (Id.) Claimant told Dr. Patil that he took Neurontin "as needed." (Id.)

Dr. Patil concluded the examination with a diagnostic impression of McKinney's "Syringomyelia, Seizure Disorder, and History of Chiari Syndrome." (R. 288.) He determined that "except for posterior neck surgical scar, clinical examination [was] essentially negative at the present time." (Id.) At the examination, McKinney did not display "localized neurovascular deficits, atazia, muscle atrophy, anemia, tremors, fasciculation, seizure activity, pedal edema, or hepatosplenomegaly." (Id.) Claimant did not have "swelling, tenderness, redness, or deformity of any joint," and "cardiopulmonary, abdominal, neurological, and extremity examination [was] essentially negative." (Id.) McKinney displayed normal gait, speech, and mentation and was in "stable condition at the present time." (Id.) Dr. Patil noted that since claimant's cerebral shunt surgery in 1998, McKinney had not been hospitalized for complications. (Id.) He also reported that claimant had an MRI of the brain five years ago and that claimant consulted his primary physician every three months. (Id.)

Dr. Frank Jiminez reviewed claimant's record and completed a "Physical Residual Functional Capacity Assessment" dated March 29, 2007. (R. 290-97.) Dr. Jiminez determined that McKinney did not have any exertional limitations. (R. 291.) However, he found slight postural and environmental limitations due to seizure disorder.

(R. 292, 294.) Dr. Jiminez indicated that claimant had a "normal neurological exam," "normal gait and statation," and that a "muscuoloskeletal exam shows slight decreased range of motion in lumbar spine." (R. 297.) He noted that "claimant states in [consultative exam] ongoing regular treatment," but records from Dr. Burda indicated that claimant had not seen her "since 2004." (Id.) Dr. Jiminez further reported that "claimant states he takes [Neurontin] as needed rather than as prescribed." (R. 297.) On July 6, 2007, Dr. Young-Ja Kim reviewed claimant's record and completed an Illinois Request for Medical Advice form that affirmed the findings of Dr. Jiminez. (R. 298-300.)

C. Claimant's Testimony

McKinney provided the following testimony at the hearing before ALJ Fina on April 23, 2009. He was born on August 4, 1966 and is left-handed. (R. 31.) At the time of the hearing, he was 6' 2" and weighed 255 pounds. (Id.) Claimant completed two and a half years of high school and has not received any additional training certificates or licenses. (R. 31-32.) McKinney was married for twelve or thirteen years, but got a divorce about a year or a year and a half before the hearing. (R. 28, 31.) Claimant takes care of his "personal needs," such as showering, shaving, and cooking. (R. 36-37, 47.) He has a valid drivers license and drives a minivan. (R. 36-37.)

McKinney worked as a roofer from 1984 to 1998 and then as a shipper and receiver for Process and Controls Systems, Inc. ("PACS") until 2006.*fn3 (R. 33, 49, 53.) At PACS, claimant performed janitorial and maintenance tasks for an eight-hour work day. (R. 53.) However, claimant often left work early due to severe headaches. (R. 49-50.) When asked how many times in a month he left work early, claimant responded "in a month, I'd say at least a week's worth." (R. 50.) McKinney stopped working for PACS when he could no longer function. (R. 33.)

At the time of the hearing, claimant lived with his ex-wife in an apartment above a bar and grill that she owned. (R. 29.) According to claimant, his ex-wife feels sorry for him because of his condition. (R. 49.) She pays the bills for the apartment, provides claimant meals, and gives him money for cigarettes. (R. 39.) In exchange, claimant works approximately two to three hours a day in his ex-wife's bar. (R. 32, 44.) He takes out the trash, relaxes for an hour, and then mops the kitchen floor of the bar. (R. 32.) McKinney testified that these tasks take him two hours more to complete than they would take an average person. (Id.) To take out the trash, McKinney carries the garbage bags about twenty to thirty feet and hoists them into a ...

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