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Timothy James Mcgrath v. Michael J. Astrue

April 10, 2012


The opinion of the court was delivered by: Hon. Harry D. Leinenweber


Plaintiff Timothy McGrath asks this Court to reverse or remand the Commissioner of Social Security's conclusion that he is not disabled. For the reasons stated herein, the Motion to Remand for Reconsideration is granted.


Prior to his foot surgery in 1999, Timothy McGrath ("McGrath") worked in the U.S. Army and at various times as a welder and fitter, and a manager. Following complications from this surgery, he has been diagnosed and/or treated for: Complex Regional Pain Syndrome ("CRPS") Type II and cellulitis. Many years prior to his foot surgery, he was also diagnosed with photophobia. The last date on which he was insured for disability (his "DLI") was December 31, 2006. The question here is whether he was legally disabled on or before that date.

The Court summarizes McGrath's treatment history at some depth. He had corrective foot surgery on October 4, 1999. After a reaction to a metallic wire implant resulted in complications from this surgery, he was diagnosed with Complex Regional Pain Syndrome ("CRPS") Type II and cellulitis. McGrath's wife testified he returned to work and worked short years in both 2000 and 2001, last working in February or March 2001. She testified that he stopped working because of severe foot pain and large, painful tumors on his right leg. His wife further testified that he underwent two unsuccessful procedures to attempt to remove these tumors. Mrs. McGrath testified that Dr. Morris instructed Mr. McGrath not to undergo any more surgeries on his foot or leg due to his sensitivity to metal.

Mr. McGrath began seeing Dr. Morales at the pain clinic from June 2000 to April 2005. Dr. Morales' treatment notes in all consultations from June 2000 until April 2005 reveal that McGrath's pain symptoms from CRPS Type II were well controlled through the prescription of the narcotic painkiller Vicodin. In his June 2000 consultation, Dr. Morales noted that McGrath denied side effects and was happy with his treatment of one Vicodin ES tablet three times per day. In his January 2001 and December 2001 consultations, Dr. Morales noted that McGrath was working. In December 2001, Dr. Morales noted that McGrath could walk without problems. In May 2003 and November 2004 Dr. Morales noted that McGrath's medication regimen allowed him to work. In the November 2004 consultation, Dr. Morales further noted that McGrath was able to do his work without any problems.

McGrath suffered a stroke in mid to late 2007, and he has been disabled since that time. However, because the claimant was last insured for Title II benefits only through December 21, 2006, McGrath must establish disability on or prior to that date in order to be entitled to a period of disability and disability insurance benefits.

McGrath filed for Social Security Title II disability and disability insurance benefits on March 15, 2008 claiming an onset date of November 1, 2000. McGrath's claim for disability benefits was denied on May 20, 2008, and upon reconsideration on June 25, 2008. The State agency medical consultants who reviewed the record concluded that there was insufficient evidence of any severe impairment prior to McGrath's last date insured. He requested an administrative hearing on July 21, 2008 and received one on June 4, 2009.

On September 15, 2009, Administrative Law Judge Shirley Michaelson (the "ALJ") ruled that McGrath was not disabled because McGrath had the residual functional capacity for the full range of light work to have performed jobs that existed in significant numbers in the national economy. The ALJ discussed evidence from three physicians: Dr. Easley, Dr. Morales, and Dr. Ezike (the impartial medical expert present at the hearing).

The ALJ did not discuss the records of Dr. Walters (the foot surgeon), which were not available at the hearing, as noted by the ALJ and Mrs. McGrath in the hearing testimony and questioning. The ALJ did not examine the records of Dr. Jiotis, Dr. Martini, Dr. Kao, and Dr. Harris, and prescription records for 2006. These records were not provided to the ALJ by the claimant in time for her consideration.

On February 8, 2011 the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final word of the Social Security Commissioner. McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011).


The ALJ had to determine whether one or more determinable mental or physical impairments (that can be expected to last for 12 or more months) prevented Plaintiff from engaging in substantial gainful activity. To do so, she followed the five-step analysis in 20 C.F.R. §404.1520(a)(4). If a claimant is found "not disabled" at any step, the inquiry ends and the claim is denied.

* At step one, a claimant is not disabled if he is currently performing substantial gainful activity.

* At step two, a claimant is not disabled unless he has a "severe" medical impairment.

* At step three, a claimant is disabled if his impairments meet or equal the listings at 20 C.F.R. Part 404, Subpart P, App. 1. If they do not, the analysis continues.

* Before step four, the ALJ determines a claimant's Residual Functional Capacity ("RFC"); that is, what work he can do despite his limits.

20 C.F.R. §404.1545(a). At this stage, the ALJ considers all record evidence and all of the claimant's impairments, severe or not. Id.

* At step four, a claimant is not disabled if he has the RFC to perform his past work.

* At step five, a claimant is not disabled if he can do any work in the national economy based on his RFC, age, education, and work experience. See 20 C.F.R. § 404.1512(g).

An ALJ must consider all relevant evidence and may not "cherry-pick" only facts that indicate non-disability; however, she need not discuss every piece of evidence. Goble v. Astrue, 385 Fed.Appx. 588, 593 (7th Cir. 2010). That is, the ALJ must "build an accurate and logical bridge from the evidence to [her] conclusion." McKinzey, 641 F.3d at 889.

A treating physician's opinion is entitled to controlling weight "if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence." Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010). If an ALJ discounts a treating physician's opinion, she must offer good reasons why and specify how much weight she gives it in light of certain factors. Id. at 306, 308. Those factors include "the length, nature, and extent of the treatment relationship; frequency of examination; the physician's specialty; the types of tests performed; and the consistency and support for the physician's opinion." Id. at 308. See also, 20 C.F.R. § 404.1527(d)(2).

On review, an ALJ's decision controls if it applies the correct legal standard and is supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Campbell, 627 F.3d at 306. The Court critically reviews the evidence, but does not reweigh it, resolve conflicts, or substitute its own judgment for the Commissioner's. McKinzey, 641 F.3d at 889. Because the Court reviews only a cold record, an ALJ's credibility findings receive special deference. Castile v. Astrue, 617 F.3d 923, 929 (7th Cir. 2011). Finally, review is limited to the ALJ opinion's stated rationale. Campbell, 627 F.3d at 306.

Remand for consideration of additional evidence is appropriate only upon a showing that the evidence is new and material to the claimant's condition during the relevant time period encompassed by the disability application under review, and there is good cause for not introducing the evidence during the administrative ...

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