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McDowell v. Astrue

United States District Court, Seventh Circuit

July 2, 2013

WILLIAM S. McDOWELL, Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant,

MEMORANDUM OPINION AND ORDER

SUSAN E. COX, Magistrate Judge.

Plaintiff, William McDowell, seeks judicial review of a final decision of the Commissioner of the Social Security Administration ("SSA") denying his application for a period of disability, disability insurance benefits, and supplemental security income benefits ("disability benefits") under Title II and Title XVI of the Social Security Act ("the Act"). Mr. McDowell has filed a motion for summary judgment, seeking to reverse the Commissioner's final decision or remand the case for consideration of the issues raised herein. For the reasons set forth below, Mr. McDowell's motion to remand is granted [dkt. 15] and the Commissioner's motion to affirm is denied [dkt. 24].

I. Procedural History

Mr. McDowell applied for disability benefits on March 18, 2009, alleging that he became disabled on September 1, 2008.[1] His claims were denied initially on July 15, 2009, and again upon reconsideration on December 2, 2009.[2] On December 15, 2009, Mr. McDowell requested a hearing before an Administrative Law Judge ("ALJ").[3] A hearing presided over by ALJ Robert Senander was held on August 23, 2010 in Chicago, Illinois.[4] Following the hearing, the ALJ issued an unfavorable decision on November 23, 2010, concluding that Mr. McDowell was not disabled under sections 216(i), 223(d) and 1614(a)(3)(A) of the Act.[5] The Appeals Council denied Mr. McDowell's request to review the ALJ's decision, so the ALJ's decision is the final decision of the Commissioner.[6]

II. Factual Background

The facts set forth in this section are derived from the administrative record. We begin with an overview of Mr. McDowell's background and relevant medical history. We then summarize the ALJ hearing testimony and the ALJ's decision.

A. Mr. McDowell's Background and Relevant Medical History

Mr. McDowell was born on July 18, 1945, and at the time of the ALJ's decision he was sixty-five years old.[7] He completed the ninth grade and has training as a certified nursing assistant ("CNA").[8] Mr. McDowell's past relevant work includes work as a home health care worker.[9] This is the only past relevant work that the ALJ examined in his decision. Though it is discussed in the hearing that Mr. McDowell once worked as a CNA, it appears that the ALJ did not consider that employment because the CNA job requirements are much too challenging for Mr. McDowell to complete now.[10] Mr. McDowell alleged that he became unable to continue his work in home health care on September 1, 2008 because of abnormally high blood pressure or "hypertension, "[11] an airflow limitation caused by an inflammatory response to inhaled toxins such as cigarette smoke, also known as Chronic Obstructive Pulmonary Disease or "COPD, "[12] lung disease, arthritis, and mental illness.[13]

It is of note that the ALJ had very limited information and medical records to review on Mr. McDowell. What we do know is that Mr. McDowell was first diagnosed with hypertension in approximately 1989 and COPD in approximately 1994.[14] Mr. McDowell also has a fifty-year history of tobacco use and smoked up to two packs of cigarettes a day during that time period.[15] This information comes from a June 2009 consultative examination performed by the Disability Determination Services ("DDS"), discussed below.[16] There are no available medical records from the time prior to filing. Additionally, we know that Mr. McDowell quit smoking in January 2010.[17]

The medical records available for Mr. McDowell are primarily comprised of doctors' notes from several visits to the emergency room over the course of about a year from March 2009 through April 2010. In addition to that, all we have is the consultative examinations of two doctors who examined Mr. McDowell for the purpose of determining disability, and the opinion evidence of two doctors who reviewed Mr. McDowell's medical records for the DDS.

On March 4, 2009, Mr. McDowell went to the emergency room at Provident Hospital of Cook County with a cough that was producing yellow-green fluid and pain in the lower region of the rib cage.[18] He was diagnosed with acute or chronic bronchitis, and COPD with emphysema.[19]

On June 24, 2009, Mr. McDowell had a consultative examination with Liana Palacci, D.O., at the request of the SSA for the purpose of determining disability.[20] Dr. Palacci reviewed the medical records from Provident Hospital of Cook County and indicated that an x-ray showed marked emphysema.[21] She also noted that Mr. McDowell had refused an INH treatment.[22] She indicated that Mr. McDowell used an inhaler twice a day, particularly with exertion and changes in the weather.[23] Dr. Palacci's clinical impressions were that Mr. McDowell had well controlled COPD, poorly controlled hypertension, and a history of psychiatric disease.[24]

On July 14, 2009, Ernst Bone, M.D., a non-examining State agency doctor, reviewed Mr. McDowell's file for the purpose of determining disability.[25] Dr. Bone concluded that Mr. McDowell was capable of lifting twenty pounds occasionally and ten pounds frequently, standing/walking for approximately six hours in an eight hour day, and sitting for approximately six hours in an eight hour day.[26] Dr. Bone also stated that Mr. McDowell should avoid concentrated exposure to extreme cold, extreme heat, humidity, fumes, odors, dusts, gases and poor ventilation.[27]

On July 22, 2009, Mr. McDowell went to the emergency room at the University of Chicago Medical Center because he was feeling dizzy and weak, and was experiencing chest pain and lightheadness (also known as near syncope).[28] According to the hospital records, he had been at his primary doctor's office prior to going to the emergency room when he began to feel "woozy."[29] This is the only mention of Mr. McDowell's primary doctor in the record and we have no other information about this primary doctor or his treatment of Mr. McDowell. At the hospital, Mr. McDowell stated that he was experiencing shortness of breath and weakness while walking two blocks to the store.[30] He further explained that he used to be able to walk four blocks before becoming short of breath, but could now only walk two.[31] The doctor noted that Mr. McDowell was still smoking.[32]

During his stay at the emergency room, Mr. McDowell was unable to perform an exercise stress test due to an inability to walk on the treadmill.[33] A myocardial perfusion scan[34] showed mild abnormalities with evidence of reversible myocardial ischemia.[35] Mr. McDowell refused to go ahead with a scheduled cardiac catheterization, despite explanations from doctors regarding the risks and benefits of the procedure.[36]

On August 19, 2009, Mr. McDowell had a follow-up visit at the University of Chicago Medical Center where he was found to have the same symptoms as the previous visit.[37] The doctor noted that while Mr. McDowell did continue to smoke, he was cutting back.[38] The doctor's impression was shortness of breath with no clear etiology, possible chronic lung disease and/or interstitial lung disease with possible coronary involvement.[39] An angiogram[40] was recommended, but Mr. McDowell was not sure he wanted to have one because he had no insurance.[41]

On November 6, 2009, Rochelle Hawkins, M.D., performed a consultative examination on Mr. McDowell for the purpose of determining disability.[42] Dr. Hawkins noted that his COPD appeared to be worsening and that he complained of becoming fatigued easily.[43] Dr. Hawkins indicated that Mr. McDowell was smoking approximately ten cigarettes a day, down from two packs a day.[44] Dr. Hawkins performed a lung function test[45] on Mr. McDowell which showed that he has moderate airway obstruction in addition to moderate small airway damage.[46] Dr Hawkins noted in her report that they had to stop the testing because Mr. McDowell was feeling dizzy. Dr. Hawkins also reported five out of five bilateral grip strength and normal muscle strength, stating that Mr. McDowell had no anatomic abnormality of either upper extremity and no limitation of motion in the shoulder, elbow or wrist joints.[47] Dr. Hawkins concluded that Mr. McDowell was able to sit, speak and hear without limitations, but had some difficulty with prolonged standing, walking, lifting and carrying due to COPD.[48]

Between November 24, 2009 and December 1, 2009, Barry Free, M.D., and Thomas Low, PhD, reviewed Mr. McDowell's medical records on behalf of the DDS for the purpose of determining disability.[49] Dr. Free and Dr. Low did not examine Mr. McDowell in person.[50] Their assessment expressed that based on the medical records, Mr. McDowell was capable of light work activity with environmental limitations.[51] They found that while Mr. McDowell's impairment could be expected to "produce some limitations in function... the extent of the limitations described by the claimant in terms of having problems walking and using his hands, exceeds that supported by the objective medical findings cited."[52]

An outpatient hospital treatment note from January 29, 2010 states that Mr. McDowell had stopped smoking for three weeks, his shortness of breath was better, and he could walk two blocks before having to stop.[53] An outpatient hospital treatment note from March 31, 2010 states that Mr. McDowell's shortness of breath was better since using an inhaler and his chest pain was improving as he was now able to walk two and a half blocks, but still had some chest pressure, pain and shortness of breath.[54]

On April 15, 2010, Mr. McDowell went to the emergency room at St. Bernard Hospital after having a fainting episode known as syncope.[55] The treating doctor noted Mr. McDowell's history of COPD and hypertension, and stated that he had bradycardia, otherwise known as a slow heartbeat lower than sixty beats per minute.[56] A chest examination showed hyperinflation consistent with obstructive lung disease.[57] The doctor noted that Mr. McDowell had quit smoking three months prior.[58] Mr. McDowell was discharged on April 17 and did not require any surgeries or emergency services.[59]

B. The Hearing Before The ALJ

Mr. McDowell's hearing before the ALJ occurred on August 23, 2010 in Chicago, Illinois.[60] He testified that he was sixty-five years old, 5'6" tall, and had a weight of 104 pounds.[61] He also testified that he lived alone in senior citizen housing, his last completed educational level was ninth grade, and he had training as a CNA.[62] Mr. McDowell explained that he does his own cooking, cleaning, grocery shopping and laundry.[63]

The ALJ asked Mr. McDowell when he last worked and it was determined that it was sometime between June and September of 2008.[64] The ALJ prompted Mr. McDowell to discuss his recent employment history.[65] Mr. McDowell discussed the home health care position he held in 2007 where he worked with a mentally disabled teenager named Charles.[66] He testified that he took care of Charles by fixing his food, helping him shower, and combing his hair.[67] The ALJ asked Mr. McDowell about the lifting requirements of that job, and Mr. McDowell testified that he only had to lift dishes, plates, and small bags of garbage.[68]

Mr. McDowell and the ALJ also discussed a second job in home health care that he had from approximately 2002-2004.[69] Mr. McDowell testified that he worked with an individual in a wheelchair named Dr. Smith and that this position was similar to his work with Charles.[70] He said he cooked for Dr. Smith as well as pushed him in his wheelchair.[71]

Mr. McDowell's attorney asked him some questions to clarify his work with Charles and Dr. Smith.[72] Mr. McDowell testified that he did not have to lift Charles when helping him shower, but steadied him when he was getting in and out.[73] He also testified that neither Charles nor Dr. Smith ever fell when he was on the job, but if they had he would have tried his best to help them up.[74] Mr. McDowell stated that during the course of his work with Charles and Dr. Smith he never had to lift more than ten pounds.[75] He also testified he helped both Charles and Dr. Smith with grocery shopping and laundry.[76]

Mr. McDowell's attorney noted that Mr. McDowell weighed 130 pounds when he worked with Charles and Dr. Smith and asked Mr. McDowell if he thought he could do the lifting required for those jobs at his current weight of 104 pounds.[77] He responded that he knew he could not because of his difficulty breathing from COPD and the limitation in his left arm.[78] He testified that the limitation in his arm had gotten worse since he used to work.[79]

Mr. McDowell explained that the reason he quit his job working for Charles was because he could no longer do the work, which involved walking up and down steps constantly and running after Charles.[80] Mr. McDowell's attorney asked him if he thought there were any tasks from his job with Dr. Smith that he would no longer be able to do.[81] Mr. McDowell said he would not be able to do any lifting, and that he would not be able to push Dr. Smith's wheelchair to the extent that he used to, about six blocks a day, because he became too tired and out of breath.[82] He testified that he did not think he could ...


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