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Malik R. Mawalin v. Michael J. Astrue

March 14, 2012


The opinion of the court was delivered by: Magistrate Judge Finnegan


Plaintiff Malik R. Mawalin seeks to overturn the final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. 42 U.S.C. § 1381a. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and filed cross-motions for summary judgment. After careful review of the record, the Court now grants Defendant's motion and denies Plaintiff's motion.


Plaintiff applied for SSI on July 30, 2007, alleging that he became disabled on January 1, 1999 from asthma, depression and neuropathy. (R. 184, 204-05). The Social Security Administration ("SSA") denied the application initially on November 16, 2007, and again on reconsideration on June 16, 2008. (R. 86-99). Pursuant to Plaintiff's timely request, Administrative Law Judge Michael G. Logan (the "ALJ") held a hearing on May 4, 2010. The ALJ heard testimony from Plaintiff, who appeared with counsel, as well as from medical experts Ashok G. Jilhewar, M.D. and Larry M. Kravitz, PhD., and vocational expert Melissa Benjamin. Shortly thereafter, on August 27, 2010, the ALJ found that Plaintiff is not disabled because he can perform a full range of work at all exertional levels as long as he: (1) avoids even moderate exposure to fumes, odors, dusts, gases, poor ventilation, and extreme heat and cold; and (2) has only minimal contact with superiors, co-workers, and the public. (R. 11-28). The Appeals Council denied Plaintiff's request for review on February 23, 2011, and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. (R. 1-3).

In support of his request for a remand, Plaintiff argues that the ALJ failed to consider evidence indicating that his asthma is severe enough to meet Listing 3.03B. Plaintiff also alleges no fewer than four errors in the ALJ's residual functional capacity ("RFC") determination. As discussed below, the Court finds that the ALJ's decision is supported by substantial evidence and need not be remanded.


Plaintiff was born on January 5, 1955, and was 55 years old at the time of the ALJ's decision. (R. 184). He has an associate's degree and lives on the second floor of his mother's two-flat. (R. 41, 64, 209). His past work includes car salesman and limousine driver, but he has not been employed since approximately 2003. (R. 55-57).

A. Medical History

1. 2002 through 2005

Plaintiff first sought medical treatment for back pain on August 19, 2002 when he presented to the University of Chicago Medical Center complaining of what he described as "sciatica." (R. 533). An MRI of the lumbar spine showed mild-to-moderate degenerative disc disease of the lower lumbar spine, but no evidence of spinal or foraminal compromise.

(R. 529). Plaintiff received a referral for physical therapy and a prescription for Relafen to help with pain relief. (R. 534). A Physical Therapy Progress Note from August 26, 2002 reflects that Plaintiff appeared for an initial evaluation but failed to follow up with further treatment. (R. 427, 581-89).

More than a year later, on December 24, 2003, Plaintiff went to the University of Chicago Hospitals emergency room ("Chicago ER") complaining of shortness of breath lasting three weeks. (R. 573). He was treated with Albuterol, Atrovent and Prednisone, and discharged in good condition. (R. 571). Plaintiff's next acute asthma exacerbation occurred a year and a half later on June 21, 2005. Doctors from the Little Company of Mary Hospital emergency room noted that Plaintiff had run out of his Albuterol and Flovent inhalers at that time, and they administered two nebulizer treatments. (R. 594, 602). Plaintiff received prescriptions for both of his inhalers plus a four-day course of Prednisone, and was discharged in stable condition. (R. 602).

Two weeks later, on July 5, 2005, Plaintiff went to the Chicago ER due to an asthma attack and wheezing that was not alleviated at home with medication. (R. 559, 563). A chest X-ray showed "some mild flattening of the diaphragm suggesting underlying obstructive lung disease," but was otherwise normal. (R. 275, 527). The doctor administered Albuterol and Prednisone and diagnosed Plaintiff with asthma exacerbation.

(R. 559). Later that month, on July 26, 2005, Plaintiff went back to the Chicago ER complaining of lower back pain lasting one week. (R. 546). He told the doctor that the pain felt like kidney stones, but a urinalysis was negative. (R. 550, 555). Plaintiff responded well to Tylenol and was discharged the same day in good condition without any prescriptions. (R. 555).

2. 2006

Plaintiff next sought emergency treatment on March 17, 2006 when he went to the Holy Cross Hospital emergency room ("Holy Cross ER") with a moderate asthma attack. He was "out of meds" at the time, and doctors admitted him with a diagnosis of asthma and renal insufficiency. (R. 492-93). A chest X-ray taken the next day showed "[a]n apparent diffuse emphysema compatible with hyperinflation of the lungs, asthma, or COPD." (R. 497). Plaintiff was discharged in stable condition with a final diagnosis of exacerbation of asthma, back pain and opiates abuse. (R. 490, 500).

Late on the evening of May 22, 2006, paramedics took Plaintiff to the Holy Cross ER, where he presented with severe shortness of breath and generalized wheezing. The doctor admitted him due to acute bronchial asthma, but a chest X-ray taken that day showed no changes from the March 17, 2006 findings. (R. 502-03, 505, 507). A May 23, 2006 echocardiogram was similarly unremarkable. (R. 508-09). Plaintiff was finally discharged on the morning of May 24, 2006. (R. 510).

On November 28, 2006, Plaintiff went to the Provident Hospital emergency room ("Provident ER") due to shortness of breath and a cough. (R. 289). He was in moderate distress and exhibited rhonchi and wheezes. (Id.). The doctor diagnosed asthmatic bronchitis, instructed Plaintiff to increase his oral fluids, and gave him prescriptions for Albuterol, Advair, Singulair and Prednisone. At the time of his discharge, Plaintiff felt "better" and had been resting comfortably. (R. 288).

3. 2007

Plaintiff returned to the Provident ER on March 3, 2007 complaining of shortness of breath and wheezing that did not resolve with Albuterol. (R. 286). The doctor diagnosed asthma exacerbation and bronchitis, prescribed Advair, and discharged Plaintiff in stable condition. (R. 285). A few months later, on June 10, 2007, Plaintiff went to the Holy Cross ER, again presenting with shortness of breath, wheezing and a cough. (R. 297, 299, 479, 481). The doctor diagnosed acute asthma exacerbation. (R. 298, 480). Two days later, on June 12, 2007, Plaintiff went back to the Provident ER "for asthma med[ication] refill." (R. 282-83).

Plaintiff next visited the Holy Cross ER on June 30, 2007 because of chest pain and shortness of breath. (R. 301, 311, 483). His lungs were clear at that time and his heart was normal in size. (R. 311). The doctor diagnosed acute coronary syndrome, but Plaintiff refused medical testing and signed himself out of the ER. (R. 484). One month later on July 30, 2007, the same day he first applied for benefits, Plaintiff went to the John H. Stroger, Jr. Hospital emergency room ("Stroger ER") in order to obtain refills of his medications, including Albuterol, Singulair and Gabapentin (prescribed for pain relief). He was not in acute respiratory distress, his chest was clear, and the doctor discharged him in stable condition with asthma education materials. (R. 314-19). Plaintiff returned to the Stroger ER on September 7, 2007, again seeking medication refills. (R. 332). He did not present with any shortness of breath or wheezing at that time, but he did complain of sciatica in his back and leg. (R. 330-32).

On October 16, 2007, Kenneth Gong, M.D., performed an Internal Consultative Examination of Plaintiff for the Bureau of Disability Determination Services ("DDS"). (R. 333-42). Plaintiff told Dr. Gong that he suffered from back pain that radiated down his right leg to his right foot, making the foot feel completely numb. (R. 333). He claimed that his 2003 MRI from the University of Chicago showed degenerating nerves, but confirmed that he had not received any physical therapy or injections for his condition. (R. 333-34). Plaintiff reported that his best position was sitting upright, and his worst position was lying down. He also complained of feeling depressed throughout the previous year, but stated that he had not received any related treatment. (R. 334).

Dr. Gong observed that Plaintiff "look[ed] uncomfortable" during the interview, stood the entire time, and "appeared to have severe difficulties getting up and down and maneuvering on the examination table." He was initially "pleasant enough," but then turned "somewhat hostile, passive aggressive and oppositional" when Dr. Gong started asking him about his medications. Plaintiff's effort on examination, moreover, was "suboptimal," with Dr. Gong describing him as "fairly uncooperative." (Id.). For example, Plaintiff "essentially refused to do the straight leg raise test," and Dr. Gong was unable to perform a strength exam because of Plaintiff's "uncooperativeness in this task." (R. 335). As a result, Dr. Gong indicated that his ability to conduct a complete physical examination was "limited." (R. 334).

Dr. Gong reported that he heard wheezing "bilaterally throughout" Plaintiff's lungs, but a spirometry report showed only mild obstruction with an FEV1 value of 2.32 and an FVC value of 3.19 before medication. (R. 335, 339). Plaintiff "appeared to have a severely antalgic gait," there was "some tenderness in the mid to lower lumbar spinous processes," and he exhibited decreased sensation throughout the right leg. (R. 335). Dr. Gong found it notable, however, that despite Plaintiff's complaints of right leg pain, his right calf muscle was actually more developed than the left. (Id.). Dr. Gong diagnosed asthma, "[p]ain in the right leg, which [Plaintiff] described [as] sciatica," and complaints of depression. (R. 336).

Also on October 16, 2007, Robert Prescott, Ph.D., conducted a Formal Mental Status Evaluation of Plaintiff for DDS. (R. 343-48). Dr. Prescott noted that Plaintiff appeared tired, had bags under his eyes, and moved quite slowly with "a visible limp, as if he were in pain." (R. 343). Throughout the interview, Plaintiff's affect was "mostly depressed," though at times he "appeared to be somewhat angry." (Id.). Plaintiff reported that he had a "degenerating nerve on the right side of his body" such that he could hardly move without pain. (R. 343-44). When asked about drug and alcohol use, he admitted only to smoking marijuana "20 or 30 years ago." (R. 344). As for his daily functioning, Plaintiff told Dr. Prescott that he had a room at "a friend[']s house" and could not take a single step without being in pain. The pain made it difficult for him to dress or wash up, but he could take public transportation, do laundry and go to the store by himself. (R. 345). He also cooked sometimes and did some sweeping and mopping. Plaintiff reported that he got along well with his children and "great" with co-workers, but he felt depressed and irritable and had difficulty sleeping. (Id.). Dr. Prescott diagnosed "[m]ajor depression, moderate," and chronic pain due to an undisclosed medical condition. (R. 347). He noted that Plaintiff was very distant, demonstrated "strong feelings of helplessness and hopelessness," and was not capable of handling funds responsibly. (Id.).

The following month, on November 13, 2007, Jerrold Heinrich, Ph.D., prepared a Psychiatric Review Technique of Plaintiff for DDS. (R. 349-61). Dr. Heinrich noted that Plaintiff was not cooperative with either Dr. Gong or Dr. Prescott, and indicated that multiple attempts to obtain relevant medical information relating to Plaintiff's mental health had all been unsuccessful. Dr. Heinrich concluded that Plaintiff's presentation before Dr. Gong and Dr. Prescott was inconsistent with the fact that he had not received any treatment for depression. As a result, Dr. Heinrich found "insufficient evidence to make a decision on this claim due to [Plaintiff's] unwillingness to cooperate." (R. 361). The next ...

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