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Mills v. Colvin

United States District Court, N.D. Illinois

August 14, 2013

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

Page 1080

For Anthony Mills, Plaintiff: Barry Alan Schultz, LEAD ATTORNEY, Law Offices of Barry Schultz, Evanston, IL.

For Michael J. Astrue, Commissioner of Social Security, Defendant: LaShonda Annette Hunt, LEAD ATTORNEY, AUSA-SSA, United States Attorney's Office (NDIL), Chicago, IL.


Page 1081

Ruben Castillo, Chief United States District Judge.


Anthony Mills (" Plaintiff" ) brings this action pursuant to the Social Security Act (the " Act" ), 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration[1] (" SSA" ) denying Plaintiff's application for Supplemental Security Income (" SSI" ) based on disability. Plaintiff requests that the decision of the Administrative Law Judge (" ALJ" ) be set aside or, in the alternative, that the matter be reversed and remanded for further proceedings. Presently before the Court is the Commissioner's motion for summary judgment. For the reasons set forth below, the Commissioner's motion is denied, and the case is remanded for further proceedings consistent with this opinion.


Plaintiff was born on June 16, 1963, and is a resident of Chicago, Illinois. (A.R. 93.) Plaintiff's most recent employment history includes working as a sales associate, a stock clerk, and a loan processor at a bank. (A.R. 49-54, 210.) Plaintiff filed a claim for SSI on September 17, 2008. (A.R. 95.) Plaintiff's claim was denied on October 27, 2008. (A.R. 97-101.) Plaintiff filed for reconsideration on January 12, 2009, but his request for reconsideration was denied on June 2, 2009. (A.R. 106.) Plaintiff requested an SSA hearing on July 6, 2009. (A.R. 111.) That hearing was held before an ALJ on August 23, 2010. (A.R. 46.) On November 18, 2010, the ALJ issued a decision denying Plaintiff's claim for SSI benefits. (A.R. 39.)

I. Medical Evidence

Plaintiff suffers from several medical issues, including sickle cell trait, congestive heart failure, hypertension, lower extremity edema, chronic kidney disease, and asthma. (A.R. 258, 291, 676.) Plaintiff alleges that the symptoms brought on by these impairments, including fatigue, shortness of breath, and his need to elevate his feet, prevent him from working. (A.R. 84.)

Plaintiff's relevant medical history began on May 30, 2008, when he was hospitalized at Mercy Hospital and Medical Center (" Mercy" ) complaining of shortness of breath for the prior two to three days. (A.R. 249-50.) Plaintiff was diagnosed with congestive heart failure, a scrotal infection, and lower extremity edema. (A.R. 272-308.) The attending physician, Dr. Theodore

Page 1082

Christou, noted that Plaintiff's edema was caused by his congestive heart failure. (A.R. 272)

Plaintiff was evaluated by Dr. Sujatha Neerukonda on October 22, 2008. (A.R. 675.) Dr. Neerukonda opined that Plaintiff suffered from congestive heart failure, sickle cell trait, uncontrolled hypertension, and an abdominal hernia. (A.R. 682.) Dr. Neerukonda found that Plaintiff's capacity to walk, push, pull, climb, and perform activities of daily living was reduced by 20-50%. (A.R. 679.) Further, Dr. Neerukonda found that Plaintiff could lift no more than twenty pounds at a time with frequent lifting of up to ten pounds. ( Id. )

Plaintiff was hospitalized at Provident Hospital of Cook County (" Provident" ) on January 5, 2009, again complaining of shortness of breath. (A.R. 716.) Plaintiff was diagnosed with congestive heart failure, hypertension, and lower extremity edema. ( Id. ) While at Provident, Plaintiff was advised to elevate his lower extremities to reduce the swelling caused by his edema. (A.R. 702.)

Plaintiff was evaluated by Dr. Charles Kenney, a State agency physician, on May 28, 2009. (A.R. 772.) Dr. Kenney completed a physical residual functional capacity (" RFC" ) assessment that identified a primary diagnosis of congestive heart failure and a secondary diagnosis of hypertension. (A.R. 765.) Dr. Kenney reported that Plaintiff could occasionally lift twenty pounds and frequently lift ten pounds, could stand and walk for six hours in an eight-hour workday, could sit for about six hours in an eight-hour workday, and had no limitations in terms of pushing and pulling. (A.R. 766.) Dr. Kenney did not explain or identify any evidence that supported his conclusion. ( Id. )

Plaintiff's treating physician, Dr. Naveed Mallick, completed a cardiac RFC assessment on July 1, 2009. (A.R. 798.) Dr. Mallick noted that he had treated Plaintiff since January 2009. (A.R 793.) Dr. Mallick reported that Plaintiff suffered from the following symptoms: chest pains, edema, shortness of breath, and fatigue. ( Id. ) Additionally, Dr. Mallick noted that Plaintiff was capable of performing a low-stress job, as long as Plaintiff was allowed up to four absences a month. (A.R. 794, 797.) Dr. Mallick opined that Plaintiff could frequently lift less than ten pounds, occasionally lift ten pounds, and rarely lift twenty pounds. (A.R. 796.) Dr. Mallick opined that Plaintiff's exertional limitations required that he be able to shift from sitting to standing at will, elevate his legs for 10% of a normal workday, and take three or four fifteen-minute breaks during the day. ( Id. ) Dr. Mallick did not indicate the height of Plaintiff's leg elevation or how long Plaintiff could sit and stand in a normal workday. (A.R. 796.)

Dr. Mallick completed a second cardiac RFC assessment on August 23, 2010, and modified his findings from the previous year. (A.R. 810.) In 2010, Dr. Mallick noted that Plaintiff suffered from the following symptoms: shortness of breath, fatigue, and weakness. ( Id. ) The doctor opined that Plaintiff could sit for approximately two hours and stand for two hours in an eight-hour workday and that he required a ten-minute break every hour. (A.R. 811.) Dr. Mallick repeated his finding that Plaintiff would need a job where he could shift between sitting, standing, and walking at will. ( Id. ) Dr. Mallick opined that during a typical workday, Plaintiff's symptoms were frequently severe enough to interfere with the attention and concentration he would need to perform even simple work tasks. ( Id. ) Dr. Mallick adjusted his original findings with regard to Plaintiff's leg elevation limitations, finding that Plaintiff needed to elevate his legs for 15%, rather than 10% of the day. (A.R. 812.) Additionally, Dr. Mallick noted that Plaintiff needed to elevate his legs to waist

Page 1083

level. ( Id. ) Dr. Mallick found that Plaintiff could occasionally lift less than ten pounds, rarely lift ten pounds, and never lift twenty or fifty pounds. ( Id. )

II. The ALJ Hearing

ALJ José Anglada conducted the SSA hearing on August 23, 2010. (A.R. 46.) Plaintiff appeared in person and was represented by his attorney, Sally Horton. ( Id. ) A vocational expert (" VE" ), Richard Hamersma, provided additional testimony. ( Id. )

A. Plaintiff's Testimony

Plaintiff testified that he lives alone in a subsidized apartment and has completed one year of college. (A.R. 48-49.) Plaintiff testified that the last time he worked was in May 2007, as a sales associate at a department store. (A.R. 49-50.) From March 1990 until December 1997, Plaintiff processed loan payments as a credit clerk at Citicorp. (A.R. 51-56.) In this position, Plaintiff was sometimes required to lift boxes that weighed ten to fifteen pounds, but he testified that he used a cart when he had to carry more than one box. (A.R. 56.) Plaintiff testified that he stopped working in May 2007 to care for his elderly grandmother, who died during Plaintiff's first hospitalization at Mercy in May 2008. (A.R. 57.)

Plaintiff testified that he was hospitalized at Mercy for chest pains in late May 2008 and was there diagnosed with congestive heart failure. (A.R. 58.) Plaintiff testified that, because he did not have a medical card, he could not refill the medication he was prescribed at Mercy when it ran out in September 2008. (A.R. 60.) Plaintiff checked himself into Provident on January 9, 2009, complaining of chest pains and shortness of breath. (A.R. 59.) Plaintiff gained roughly fifty pounds between the two hospitalizations. ( Id. ) Plaintiff testified that he received his medical card while at Provident, and since that time he has taken medication for his heart, blood pressure, and fluid retention. (A.R. 60, 62.)

Plaintiff testified that he has seen his primary care physician, Dr. Mallick, every three months since January 2009. (A.R. 61.) Further, Plaintiff testified that Dr. Mallick increased the dosage of his medication in March 2010 because his chest pains had grown more frequent and he had difficulty breathing. (A.R. 62.) Plaintiff testified that the medication did not alleviate his chest pains and that his doctors told him that chest pain is a symptom of his congestive heart failure. (A.R. 64.) Plaintiff further testified that he gets chest pains when he stands after sitting for long periods of time. ( Id. ) Plaintiff testified that he can walk about a block and stand for about a half-hour before he has to sit down. (A.R. 65.) Plaintiff testified that he could lift five to ten pounds, but he needs help if he has to carry something heavy. ( Id. )

Plaintiff testified that he did not explore the option of vocational rehabilitation and that he has not tried to find a job because he has more bad days than good days. (A.R. 70-71.) When asked to elaborate on what he means by " good" and " bad" days, Plaintiff testified that on good days he can do housework, but he can only clean for ten to twenty minutes before losing his breath and he has to take ten-minute breaks between chores because he gets short of breath. (A.R. 74-75.) Plaintiff testified that he can cook light things, like salads or sandwiches, but he cannot cook things that take a long time or require constant monitoring. (A.R. 65-66.) He can walk two blocks to the grocery store if he only needs little things, like bread or milk, but he has to rest for five to ten minutes after walking a block. (A.R. 68, 73-74.) Plaintiff stated that on bad days, he refrains from doing any housework or leaving the house, and he is restricted to sitting

Page 1084

or lying down. (A.R. 75.) Plaintiff testified that he experiences seven to eight bad days a month. ( Id. )

Plaintiff further testified that he takes two- to three-hour naps four or five days a week. (A.R. 83.) Plaintiff testified that he wakes up short of breath three to four times a week. (A.R. 72.) Additionally, Plaintiff stated that he has trouble sleeping through the night. (A.R. 83.) He stated that he gets winded easily, even from standing still. (A.R. 74.) Plaintiff testified that he spends his days reading, watching television, and visiting with his friend who lives a floor below him. (A.R. 68-69.)

Plaintiff weighed 207 pounds at the time of the hearing, having gained fifteen pounds over the two months leading up to the hearing. (A.R. 77.) Plaintiff testified that his doctors told him that his weight gain was due to fluid retention. (A.R. 77-78.) Plaintiff also testified that he takes diuretics every morning. (A.R. 78.) Plaintiff testified that walking and standing cause his ankles, hands, and wrists to swell, and he experiences swelling every day. (A.R. 79-80.) Plaintiff testified that he elevates his feet to a little bit higher than waist level to relieve the swelling. (A.R. 80.) Plaintiff opined that he cannot work because he is frequently exhausted and short of breath, and because he needs to keep his feet elevated. (A.R. 84.)

B. Vocational Expert's Testimony

The VE testified that he listened to Plaintiff's testimony, examined his file, and prepared a summary of Plaintiff's work history. (A.R. 85.) The VE listed credit clerk, sales clerk, and stock clerk as Plaintiff's previous positions. (A.R. 85-86.) The ALJ then asked the VE about three hypothetical persons. (A.R. 86-88.) The ALJ first asked the VE about an individual in the " younger age category" with Plaintiff's education and work history who could lift and carry no more than 20 pounds occasionally and ten pounds frequently, could stand or walk for approximately four hours in an eight-hour workday, could sit for six hours with normal rest periods, was unable to work at heights, climb ladders, or frequently negotiate stairs, could only occasionally stoop, squat, crouch, or crawl, could not be exposed to moving or dangerous machinery, and could not perform " highly stressful" work. (A.R. 86-87.) The VE testified that an individual with those restrictions could not perform Plaintiff's previous jobs as a sales clerk or a stock clerk, but could perform his previous job as a credit clerk. (A.R. 87.) The ALJ then asked the VE to consider the restrictions listed in Dr. Mallick's 2009 RFC assessment. ( Id. ) The VE concluded that a person with the ...

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