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Robinson v. Colvin

United States District Court, Seventh Circuit

May 8, 2013

DARRELL A. ROBINSON, Plaintiff,
v.
CAROLYN COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

JEFFREY COLE, Magistrate Judge.

The Plaintiff, Darrell Robinson, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency"), denying his application for Supplemental Security Income ("SSI"), under Title XVI of the Social Security Act ("Act"), 42 U.S.C. § 1383(c)(3). Mr. Robinson asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.

I.

Procedural History of the Case

Mr. Robinson applied for SSI and Disability Insurance Benefits ("DIB")[1] on December 11, 2007, alleging that he had been disabled since October 1, 2007. (R. 177-85). The claim for SSI was denied initially, (R. 125-28), and upon reconsideration. (R. 131-33). Mr. Robinson filed a request for a hearing with an Administrative Law Judge ("ALJ") on June 25, 2008. (R. 134-36).

An ALJ convened a hearing on September 30, 2009, at which Mr. Robinson, represented by counsel, appeared and testified. ( See R. 32-110). Also appearing and testifying were Ashok G. Jilhewar, M.D., a medical expert, and Grace Gianforte, a vocational expert. ( See R. 32-110). On July 30, 2010, the ALJ issued a decision denying the application for SSI because, "considering [Mr. Robinson's] age, education, work experience, and residual functional capacity, the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy." (R. 24). This became the final decision of the Commissioner when the Appeals Council denied Mr. Robinson's request for review of the decision on July 30, 2010. (R. 1-3). Mr. Robinson has appealed the decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).

II.

Evidence of Record

A.

The Vocational Evidence

Mr. Robinson was born on November 29, 1958 (R. 177), making him fifty years old at the time of the hearing. (R. 37). Mr. Robinson completed tenth grade and participated in special education classes since the fourth grade. (R. 52). He last worked in 2007 as a home health aide for a family friend, and worked twenty hours a week at that position. (R. 40, 42). Mr. Robinson's employment history also includes working as a laborer at a construction site in 2005 and 2006. (R. 43-44).

B.

The Medical Evidence

The medical records begin on May 16, 2007, when Mr. Robinson visited the emergency room at Ingalls Memorial Hospital and complained of pain in his right forearm. (R. 284). The attending physician observed abrasions and swelling, and Mr. Robinson reported that the injury occurred during an altercation that took place two days before. (R. 284-85). Mr. Robinson had no previous medical or surgical history, and the attending physician noted that Mr. Robinson was drinking alcohol every two to three days, had a history of cocaine abuse, and had used cocaine three days before. (R. 284). Mr. Robinson reported that he had mild neck and back pain, and described the pain as "pressing" and "stabbing." (R. 285). He stated that the maximum severity of the pain was moderate, that the symptoms were mild, and denied clavicle pain, shoulder pain, inability to bear weight, pain on walking, hip pain, knee pain, ankle pain, and foot pain. (R. 285). Mr. Robinson was diagnosed with a "soft tissue contusion/infected abrasion" and was prescribed Ibuprofen, Keflex, and Neosporin. (R. 286). Ingalls Memorial Hospital discharged Mr. Robinson the same night, and the attending physician described Mr. Robinson's status as "improved." (R. 286).

On August 18, 2007, Mr. Robinson visited the emergency room at Oak Forest Hospital of Cook County and complained of right shoulder pain that radiated to his right elbow. (R. 338-39). According to Mr. Robinson, he had been experiencing pain for the previous two months. (R. 339). The range of motion of Mr. Robinson's right shoulder had decreased, and there was effusion and tenderness of the acromioclavicular joint. (R. 337). He was diagnosed with degenerative arthritis of the right shoulder and prescribed Ultram. (R. 338). X-rays taken of Mr. Robinson's right shoulder on August 23, 2007 showed no evidence of fracture, dislocation, or bony pathology. (R. 343).

Mr. Robinson returned to the emergency room at Ingalls Memorial Hospital on September 7, 2007 and complained of chronic right shoulder pain that he said had bothered him for months. (R. 304). He reported that his medication was not adequately relieving his pain, and that his shoulder pain increased with range of motion. (R. 304-05). The attending physician noted that Mr. Robinson smoked tobacco (1.5 packs per day for twenty-nine years), consumed alcohol daily (including a twenty-four ounce beer and half pint on the day in question), had a history of cocaine abuse, and had last used cocaine the day before. (R. 304). Mr. Robinson was diagnosed with arthralgia of the right shoulder, prescribed Robaxin, and discharged the following day. (R. 305, 308).

On September 13, 2007, Mr. Robinson visited the emergency room at Ingalls Memorial Hospital once again. (R. 316). He reported that the pain in his right shoulder had continued since his discharge on September 8. (R. 316). Mr. Robinson was diagnosed with chronic right shoulder pain and "probable tendonitis, " and was prescribed Motrin. (R. 317). He was discharged the same day. (R. 320). X-rays taken of Mr. Robinson's right shoulder revealed normal alignment of the right glenohumeral joint, and there was no evidence of fracture or dislocation. (R. 327).

On October 14, 2007, Mr. Robinson returned to the Oak Forest Hospital emergency room. (R. 342). X-rays taken on October 15 revealed degenerative changes at the C5-C6 level of Mr. Robinson's cervical spine, but no evidence of acute fracture or dislocation. (R. 344). The X-rays of Mr. Robinson's right shoulder revealed slight narrowing of the joint space consistent with mild and early arthritic changes, but contained no evidence of acute fracture or dislocation. (R. 345). Mr. Robinson was prescribed Tramadol and Robaxin. (R. 342).

On November 19, 2007, Mr. Robinson visited the orthopedic clinic at Oak Forest Hospital, complained of shoulder pain, and was seen by Dr. Schiappa. (R. 331). Dr. Schiappa prescribed Mr. Robinson Tylenol #3 and Naprosyn, and recommended that Mr. Robinson return in three weeks. (R. 332). Mr. Robinson returned to the orthopedic clinic on December 10 and December 21, 2007. (R. 333-36).

On February 15, 2008, Frank Jimenez, M.D., a state agency medical consultant, completed a physical residual functional capacity ("RFC") assessment. ( See R. 368-75). Dr. Jimenez opined that Mr. Robinson could occasionally lift twenty pounds, frequently lift ten pounds, stand and/or walk with normal breaks for about six hours in an eight-hour workday, sit (with normal breaks) for about six hours in an eight-hour workday, and was unlimited in his ability to push or pull. (R. 369). Dr. Jimenez reported that Mr. Robinson could frequently stoop, kneel, crouch, or crawl, but could only occasionally climb ladders, ropes, and scaffolds. (R. 370). According to Dr. Jimenez, Mr. Robinson was limited in his handling abilities (gross manipulation) and his capacity to reach in all directions (including overhead). (R. 370). Mr. Robinson was unlimited in his fingering (fine manipulation) and feeling (skin receptors) abilities. (R. 371). Dr. Jimenez noted that there was no treating source statement. (R. 375).

On June 11, 2009, Mr. Robinson visited the emergency room at Oak Forest Hospital and complained of chronic shoulder pain and a cough. (R. 387). He was diagnosed with arthritis and acute bronchitis, and was advised to quit smoking and use his medication as directed. (R. 389). Mr. Robinson returned on July 7, 2009 and complained of pain in his left foot. (R. 380). The attending physician recommended that Mr. Robinson use ice, rest, and pain medication, quit smoking, and suggested that Mr. Robinson wear light shoes. (R. 381). The physician reported that Mr. Robinson's pain was a "one" or a "two" out of ten. (R. 382). Mr. Robinson was prescribed Naprosyn. (R. 381).

On September 15, 2009, Mr. Robinson underwent an orthopedic consultative examination for the Bureau of Disability Determination Services, performed by James Elmes, M.D. ( See R. 390-94). Mr. Robinson complained of right shoulder pain and low back pain, and reported that he was previously employed as a construction worker three years before the examination, but stopped working because of pain in his right arm. (R. 390). According to Mr. Robinson, the pain was aggravated by lifting and elevation above shoulder height. (R. 390). Mr. Robinson reported that the pain on the day of the examination, with zero being no pain and ten being "the most severe possible pain, " was an eight. (R. 390). On the best day, the pain was a six, and on the worst day, a ten. (R. 390). Mr. Robinson reported that his shoulder pain had remained the same for the previous six months, and that weather change, direct pressure, and lifting above shoulder elevation seemed to aggravate the pain. (R. 390). According to Mr. Robinson, moist heat, cold packs, massage, rest, and medication relieved the pain the most. (R. 390). Mr. Robinson took aspirin for the pain two to three times a day as well as Soma (one twice daily) and Naproxen (500 mg twice a day). (R. 390). Mr. Robinson also took Tramadol every four to six hours. (R. 390).

As for Mr. Robinson's low back pain, he reported that he had a gradual onset of low back pain five years before the examination, and that the pain was aggravated with coughing, sneezing, urination, and defecation. (R. 391). Mr. Robinson reported that on the day of the examination the intensity of his back pain was a six. (R. 391). On the best day his back pain was a four, and on the worst day, an eight. (R. 391). Mr. Robinson reported that his back pain had increased in severity in the previous six months, and that weather change, lifting, twisting, and direct pressure aggravated his pain. (R. 391). Moist heat, massage, rest, and medication relieved the pain the most, and Mr. Robinson reported that he was able to do light shopping for short intervals and light household chores such as sweeping and taking out the garbage. (R. 391). According to Mr. Robinson, he experienced a decrease in strength in the left leg with distance walking, used handrails on stairs, and had occasional decreases in balance because of left foot pain. (R. 391). Mr. Robinson reported that he experienced intermittent numbness in the lateral left foot and lateral toes. (R. 391).

Dr. Elmes noted that Mr. Robinson smoked a pack of cigarettes every day and drank beer on a social basis. (R. 391). He had a history of rectal bleeding, and his last episode occurred two weeks before the examination, possibly due to hemorrhoids. (R. 391). Mr. Robinson had decreased vision. (R. 391). He reported that he had a history of cocaine abuse, but that he had not used cocaine in thirty years. (R. 391). Mr. Robinson reported a gradual onset of left foot pain beginning six months prior to the examination, and a history of bilateral knee pain and clicking in the knees. (R. 391). Mr. Robinson's knees did not buckle or lock. (R. 391).

According to Mr. Robinson, X-rays taken of the right shoulder and the lumbosacral spine at Oak Forest Hospital in 2008 and on August 20, 2009 revealed no evidence of fracture. (R. 391). Dr. Elmes noted that no reports were available for evaluation. (R. 391). Mr. Robinson had a normal heel-to-toe gait pattern, although he complained of foot pain with walking. (R. 391). Toe standing and walking and heel standing and walking produced left foot pain, and Mr. Robinson was unable to hop as a result. (R. 391-92). Mr. Robinson reported that he could dress and undress himself without assistance, (R. 392), and although he was able to get on and off the examination table unassisted, a squat produced bilateral knee pain. (R. 392).

Mr. Robinson's fine and gross motor coordination was normal, and he could button, tie, zip, pick up a penny, turn a doorknob, and turn a key and lock without difficulty. (R. 392). He had decreased grip strength in the right hand because of right arm pain. (R. 392). He could walk fifty feet without assistance and could walk four blocks outdoors. (R. 392). Mr. Robinson was alert and oriented during the evaluation and answered all questions intelligently and without hesitation. (R. 392). He could count to twenty-eight by sevens accurately and appeared to be able to manage his own finances. (R. 392). Sensation to light touch was decreased in the right radial forearm, although sensation to pinprick was not. (R. 392). Sensation to both light touch and pinprick was decreased in the left ulnar forearm as well as the left thumb, left index, left long, ring, and small fingers. (R. 392). Sensation to pinprick in the left radial forearm was decreased, although sensation to light touch was not. (R. 392). Dr. Elmes reported that lower extremity measurements to light touch and pinprick were decreased in a stocking-type distribution. (R. 392).

Mr. Robinson's shoulder had anterolateral and posterior tenderness. (R. 392). He had a maximum flexion of 140 degrees (150 degrees being normal) and abduction to 130 degrees (140 degrees being normal). (R. 392). Dr. Elmes reported that there was no palpable crepitus in the right shoulder, that the right knee had anteromedial tenderness, and that the left knee had anteromedial and anterolateral tenderness. (R. 392). Upon examination of the neck, Dr. Elmes reported tenderness in the right trapezius, although there was no spasm or atrophy noted. (R. 393). Examination of the back revealed mild tenderness at L4 and L5 and also in the right and left sacroiliac area. (R. 393). No palpable spasm or atrophy was noted. (R. 393). Range of motion revealed lateral bending of twenty degrees (normal being twenty-five), extension of fifteen degrees (normal being twenty-five), and forward flexion of sixty-five degrees with fingertips reaching to twelve inches from the floor. (R. 393). Dr. Elmes reported that Waddell's test revealed inappropriate results in four out of six tests, suggesting symptom magnification. (R. 393). When asked if all medical complaints had been addressed, Mr. Robinson responded affirmatively. (R. 393).

Following the examination, Dr. Elmes completed a "Medical Source Statement of Ability to Do Work Related Activities (Physical)." (R. 395-400). Dr. Elmes opined that Mr. Robinson could frequently lift or carry up to ten pounds, occasionally lift or carry eleven to twenty pounds, and never lift or carry twenty-one to fifty pounds or fifty-one to 100 pounds. (R. 395). According to Dr. Elmes, Mr. Robinson could sit or stand for fifteen minutes and walk for twenty minutes at one time. (R. 396). Dr. Elmes opined that Mr. Robinson could sit for five hours and stand and walk for an hour and a half in an eight-hour workday, (R. 396), and reported that Mr. Robinson required the use of a cane to ambulate. (R. 396).

Dr. Elmes reported that Mr. Robinson could never reach over his head or push or pull with his right hand, could occasionally reach in other directions with his right hand, and could frequently perform handling, fingering, feeling, pushing, and pulling activities with his right hand. (R. 397). According to Dr. Elmes, Mr. Robinson could frequently reach overhead and in all other directions, and could frequently perform handling, fingering, feeling, pushing, and pulling activities with his left hand. (R. 397). Dr. Elmes opined that Mr. Robinson could frequently operate foot controls with his right foot, but could only occasionally do so with his left foot. (R. 397).

As for postural activities, Dr. Elmes opined that Mr. Robinson could never climb ladders or scaffolds, kneel, crouch, or crawl. (R. 398). Dr. Elmes reported that Mr. Robinson could occasionally climb stairs and ramps, balance, and stoop. (R. 398). Dr. Elmes noted that Mr. Robinson had a visual impairment, but reported that Mr. Robinson was able to avoid hazards in the workplace, read ordinary newspaper or book print, view a computer screen, and determine differences in shape and color of small objects. (R. 398). However, Dr. Elmes reported that Mr. Robinson could not read very small print. (R. 398).

In assessing Mr. Robinson's environmental limitations, Dr. Elmes opined that Mr. Robinson could never tolerate exposure to unprotected heights, moving mechanical parts, operating a motor vehicle, humidity and wetness, extreme cold, or vibrations. (R. 399). However, Mr. Robinson could occasionally tolerate exposure to dust, odors, fumes, and pulmonary irritants, as well as extreme heat. (R. 399). Mr. Robinson could tolerate moderate noise. (R. 399).

Dr. Elmes reported that Mr. Robinson could perform activities like shopping, travel without a companion for assistance, ambulate without using a wheelchair, walker, or two canes or two crutches, use standard public transportation, climb a few steps at a reasonable pace with the use of a single hand rail, prepare a simple meal and feed himself, care for personal hygiene, and sort, handle, or use paper/files. (R. 400). However, Dr. Elmes opined that Mr. Robinson could not walk a block at a reasonable pace on rough or uneven surfaces. (R. 400).

Also on September 15, 2009, Mr. Robinson underwent a mental status evaluation for the Bureau of Disability Determination Services, performed by Robert Prescott, Ph.D., a licensed clinical psychologist. (R. 408-13). Mr. Robinson traveled to the examination by himself on the train. (R. 411). Although Mr. Robinson seemed subdued and sad, he interacted with Dr. Prescott in a cooperative and friendly manner, and his gait, posture, and mannerisms appeared to be within normal limits. (R. 408). Mr. Robinson reported that he had suffered from arthritis for the previous five or six years, and also had back pain. (R. 408). Mr. Robinson brought a number of medications with him to the evaluation including Naproxen, Salsalate, Methocarbamol, and Tramadol, and stated that he took all of the medications. (R. 409). Mr. Robinson reported that he had never had any mental health treatment. (R. 409).

Mr. Robinson reported that he drank beer once a week and tried marijuana sometime in the 1980's, but maintained that he had never had any substance abuse treatment or been in trouble with the police. (R. 409). According to Mr. Robinson, he dropped out of school after the tenth grade, and began receiving special education services in the fourth grade. (R. 409). He acknowledged that his academic skills were poor, but was "somewhat vague" about why he dropped out of school. (R. 409). Mr. Robinson reported that he had worked mostly in construction, and that his last job was for First Metropolitan where he worked for three years. (R. 409).

At the time of the evaluation, Mr. Robinson lived with his brother and his brother's fiance. (R. 409). Mr. Robinson reported that he was able to dress and bathe himself. (R. 409). His driver's license was suspended in 1983 because of the number of tickets he received, and he had not driven since. (R. 409). Mr. Robinson stated that he could use public transportation and go to the store by himself and could also walk about four blocks. (R. 409). Mr. Robinson cooked "a little bit" and used a microwave, but did not use a computer or do laundry. (R. 409). When asked about money management, Mr. Robinson responded that he "c[ould] count." (R. 409). Mr. Robinson's chores around the house were to pick up after himself and sweep, and he was not involved in any activities outside the house. (R. 409).

When asked about his daily routine, Mr. Robinson responded that he watched television, and sometimes sat outside. (R. 410). Mr. Robinson had some friends and had a girlfriend of four months, and stated that he and his girlfriend "might go to the movies together." (R. 410). He had no difficulty in getting along with coworkers or his brother and his brother's fiance. (R. 410). When asked about any worries or concerns, Mr. Robinson responded, "how I'm going to make it." (R. 410).

Mr. Robinson reported that he had been depressed for the previous five years because he had not been working. (R. 410). Mr. Robinson occasionally cried and was unsure about his future, (R. 410), and stated that he had difficulty sleeping for the past five years. (R. 410). According to Mr. Robinson, his appetite had been poor. (R. 410).

Mr. Robinson spoke at a "slower than usual rate." (R. 410). Although he was sometimes hesitant in providing answers, his words were well articulated and he was understandable ninety percent of the time. (R. 410). He seemed to understand Dr. Prescott ninety percent of the time. (R. 410). Mr. Robinson denied any suicide attempts and did not disclose any attempt to harm himself, but did acknowledge that he had some suicidal thoughts. (R. 410). When asked for more information, Mr. Robinson responded that he told himself to "hold off and maybe things will get better." (R. 410). He did not reveal ...


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