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Kelvin P. King v. Michael J. Astrue

September 19, 2012


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


Plaintiff Kelvin P. King seeks to overturn the final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416, 423(d), 1381a. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and Plaintiff filed a motion for summary judgment. After careful review of the record, the Court now denies Plaintiff's motion and affirms the decision to deny him benefits.


Plaintiff applied for DIB and SSI on January 7, 2008, alleging that he became disabled on April 18, 2007 due to a herniated disc and respiratory problems. (R. 156-59, 162-64, 196). The SSA denied the applications initially on April 16, 2008, and again upon reconsideration on July 11, 2008. (R. 87-95, 106-13). Plaintiff filed a timely request for hearing and appeared before Administrative Law Judge Curt Marceille (the "ALJ") on October 6, 2009. (R. 14). The ALJ heard testimony from Plaintiff, who was represented by counsel, as well as from Plaintiff's friend, Umeka Herrod, Medical Expert James McKenna, M.D. (the "ME") and vocational expert Pamela Tucker (the "VE"). Shortly thereafter, on November 5, 2009, the ALJ found that Plaintiff is not disabled because he can perform a significant number of light jobs available in the national economy. (R. 15-25). The Appeals Council denied Plaintiff's request for review on August 25, 2010, (R. 3-5), and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner.

In support of his request for remand, Plaintiff argues that the ALJ: (1) made a flawed credibility assessment; (2) ignored important medical evidence in determining Plaintiff's residual functional capacity ("RFC"); and (3) relied on improper testimony from the VE. As discussed below, the Court finds no merit to these challenges, and affirms the ALJ's decision.


Plaintiff was born on January 27, 1956, and was 53 years old at the time of the ALJ's decision. (R. 156, 162). He is a high school graduate with past relevant work as a forklift/truck driver for lumber companies. (R. 197, 200).

A. Medical History

1. Back Injury and Treatment (September 2006 through January 2007)

On September 8, 2006, Plaintiff injured his back at work while lifting an 80-pound bag of cement. (R. 307). Three days later, he reported to Alexian Brothers Corporate Health Services ("Alexian Health") complaining of left leg and hip pain that was "progressively . . . getting worse." (Id.). X-rays of Plaintiff's lumbar spine and left hip showed mild scoliosis and minimal degenerative changes. (R. 350-51). The doctor diagnosed "left-sided low back/hip strain (sciatica)" and allowed Plaintiff to return to work with some lifting and bending restrictions. (R. 308, 355).

Throughout the following week, Plaintiff continued to receive treatment at Alexian Health, including prescriptions for Flexeril, Ibuprofen/Motrin and Naproxen. (R. 355, 358, 361, 363). On September 22, 2006, he had an MRI of the lumbar spine which showed a large "central/left paracentral disc protrusion at L5-S1" causing "significant compression of the thecal sac." (R. 368). Based on this result, Alexian Health referred Plaintiff to Babak Lami, M.D., of the Illinois Spine Institute, S.C., for a consultation. (R. 372-73).

Dr. Lami examined Plaintiff on September 29, 2006 and diagnosed him with "[l]eft leg radiculopathy with herniated nucleus pulposus." He recommended a lumbar epidural injection and physical therapy at that time, but also indicated that "microdiscectomy might be an option" if this conservative treatment failed.

(R. 263-65, 279, 374). Two days later, on October 1, 2006, Plaintiff went to the Alexian Brothers Medical Center emergency room complaining of low back pain.

(R. 376). He received a prescription for Vicodin and was discharged in stable condition with a reported pain level of 5 out of 10. (R. 377).

The next day, Plaintiff called Dr. Lami and said that the epidural injection had not helped, he was unable to walk, and he wanted to have surgery. (R. 260). Dr. Lami performed the microdiscectomy on October 4, 2006, (R. 271-72), and by October 12, 2006, Plaintiff was "doing extremely well" with no more radiculopathy or focal or neurological deficit. Plaintiff said that he was "extremely happy" with the surgical results, and Dr. Lami scheduled him for three weeks of physical therapy. (R. 259, 278). When Plaintiff saw Dr. Lami again on November 9, 2006, he was "doing great" with "very minimal symptoms." (R. 258). Dr. Lami instructed him to remain off work for two more weeks, after which he could return to light duty with "no lifting more than 10 pounds [or] repetitive bending." (R. 258, 275).

Plaintiff started light work on December 11, 2006, (R. 274), and on January 11, 2007, Dr. Lami discharged him from his care. (R. 257). Plaintiff showed "no deficit" at that time, and Dr. Lami stated that he could return to work without restrictions on January 17, 2007. (R. 257, 273). Dr. Lami noted that Plaintiff would come to see him "on an as needed basis" and "underst[ood] that if [he] has any questions or problems, he certainly can contact me anytime." (R. 257). Plaintiff never contacted Dr. Lami or sought additional medical treatment for his back after January 2007.

2. Disability Application and Related Exams (January through June 2008)

On January 7, 2008, approximately one year after he was released to full duty work, Plaintiff applied for disability benefits. *fn1 The following month, on February 23, 2008, ChukwuEmeka F. Ezike, M.D., conducted an Internal Medicine Consultative Examination of Plaintiff for the Bureau of Disability Determination Services ("DDS"). (R. 282-85). Plaintiff told Dr. Ezike that he has "nerve damage in his left leg," as well as back pain that is "intermittent, dull, occasionally sharp, about 7/10 in severity, worse in the morning, and associated with stiffness upon waking up." (R. 282). Plaintiff also complained of shortness of breath (dyspnea) on exertion, including walking and climbing stairs, though he "ha[d] not been diagnosed for his symptoms." (Id.). Plaintiff said that he can walk one block, stand for 10 minutes, sit for 30 minutes, and lift up to 15 pounds at a time. He was able to drive to his appointment, but he needs help cleaning his home and does not shop. (R. 283).

Dr. Ezike observed that Plaintiff was able to get on and off the exam table with no difficulty, and could walk more than 50 feet without support. His gait was "slightly antalgic" with the use of a cane, but he was able to walk without any assistive device. (R. 284). Dr. Ezike found Plaintiff to have normal grip strength in both hands, and normal range of motion in the shoulders, elbows, wrists, hips, knees, ankles and cervical spine. He exhibited lumbar flexion to 60 degrees (normal) and extension to 20 degrees (25 is normal), both with mild pain, and a straight leg raise test was negative. *fn2 (Id.). Plaintiff did have decreased sensation in his left leg, but his deep tendon reflexes were equal and symmetric. (Id.).

Dr. Ezike diagnosed Plaintiff with "[c]hronic low back pain, status post surgery," "[l]umbar radiculopathy," and "[p]ossible COPD" (chronic obstructive pulmonary disease). (R. 285). Though Plaintiff's lungs were clear "without rales, rhonchi or wheezes," he did exhibit prolonged expiration and Dr. Ezike recommended that he undergo pulmonary function testing. (Id.). Plaintiff's March 28, 2008 pulmonary test showed that he had a very severe obstruction before taking medication, but he experienced significant improvement with medication. His best FEV1 value was 1.75. (R. 298).

On April 11, 2008, Richard Bilinsky, M.D., completed a Physical Residual Functional Capacity Assessment of Plaintiff for DDS. (R. 287-94). Dr. Bilinsky found that Plaintiff can occasionally lift 20 pounds, frequently lift 10 pounds, stand, walk and/or sit for 6 hours in an 8-hour workday, and push/pull without limitation. (R. 288). Plaintiff must avoid concentrated exposure to fumes, odors, dusts, gases and poor ventilation due to his possible COPD, and he can only occasionally climb ladders, ropes or scaffolds. (R. 289, 291). Dr. Bilinsky identified no other limitations, however, citing Dr. Ezike's objective findings regarding Plaintiff's ability to walk, range of motion, and mild pain with flexion and extension. (R. 289-91, 294). Francis Vincent, M.D., affirmed Dr. Bilinsky's assessment on June 28, 2008. (R. 302-04).

B. Plaintiff's Testimony

In a June 17, 2008 Function Report completed in connection with his application for disability benefits, Plaintiff stated that he is able to do laundry, drive, go to the store, and lift about 20 pounds. (R. 216-19). He can only walk 50 to 80 feet before needing to stop and rest for 15 to 20 minutes, however, and his back pain and breathing problems make it difficult for him to lift, squat, bend, walk, kneel and climb stairs. (R. 219). In that regard, he uses a cane, though no doctor prescribed it. (R. 220). Plaintiff stated that his "severe sciatica" renders him unable to work, and claimed that he was "going to continue further medical testing." (R. 214, 221). In an undated Disability Report -- Appeal, Plaintiff reported that his condition worsened as of April 20, 2008, and that he experiences "[s]evere pain in lower back from surgery." (R. 207).

At the October 6, 2009 hearing before the ALJ, Plaintiff testified that he was fired on April 18, 2007 after he "ran into something at a job site." (R. 34). He collected unemployment from May to November 2007, certifying that he was ready, willing and able to work, and then obtained food stamps and a "link card" through the state. (R. 35, 37). He looked for work until December 2007, when he noticed that he was having "medical problems" and was unable to sit, stand or walk more than 25 or 30 feet without stopping to rest. (R. 36-37, 41).

Plaintiff stated that he suffers from "sciatica" with pain radiating down his left leg. He described the pain as an "excruciating" 7 out of 10 that goes "from bad to worse," but he was not taking any medications at the time of the hearing, and he used only over-the-counter medications "in the past." (R. 38-39). The last time Plaintiff sought treatment for this pain was in July 2008, when he went to the Cook County Hospital because a family ...

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