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Jensen v. Colvin

United States District Court, Seventh Circuit

September 23, 2013

TIMOTHY D. JENSEN, Plaintiff-Claimant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant-Respondent.

MEMORANDUM OPINION AND ORDER

IAIN D. JOHNSTON, Magistrate Judge.

In the early morning hours of July 30, 2008, Timothy D. Jensen ("Claimant") was drinking with friends on the northwest side of Chicago. R. 23-24. At that time, he was six feet, two inches tall and weighed about 300 pounds. R. 26, 280. He is right hand dominant. R. 18. Although the Claimant previously worked as a bartender and bouncer, on July 30, 2008 and for some time before then, he was unemployed. R. 18, 78, 162, 168, 186, 220. The Claimant became intoxicated. R. 23, 223, 232, 252. Indeed, the Claimant's blood alcohol level was.19. R. 23, 228. The Claimant put his right arm through a window. R. 234. The medical records indicate that the Claimant punched the window. R. 227, 232. But the Claimant asserts he fell into the window. R. 22, 31. Regardless of how he put his arm through the window, the consequence was traumatic. The Claimant suffered severe injuries, including trauma to his brachial artery and vein. R. 229, 232, 234, 252. But these injuries were not severe enough to prevent the Claimant from driving. In fact, the Claimant drove from his home in Crystal Lake, Illinois to Wrigley Field to attend a Cubs game, and then back home again, about a year after the incident. R. 71. To meet friends, about four (4) months after the injury, the Claimant also drove from his home to the northwest side of Chicago and back. R. 65-67. And the Claimant drove from Crystal Lake to Evanston for his disability hearing, which is a distance of about 100 miles round trip. R. 35, 70. As a result of the injuries suffered, the Claimant sought both Supplemental Security Income ("SSI") and Social Security Disability Insurance Benefits ("DIB"). R. 15. Both requests were denied. R. 1.

The Claimant brings this action under 42 U.S.C. §405(g), seeking reversal or remand of the decision by Respondent, Carolyn W. Colvin, Acting Commissioner of Social Security ("Commissioner"), [1] denying the Claimant's application for SSI and DIB under Title II of the Social Security Act ("SSA"). This matter is before the Court on cross-motions for summary judgment. (Dkt. #18, 25).

The Claimant argues that the Commissioner's decision denying his application for benefits should be reversed or remanded for further proceedings because the Administrative Law Judge's ("ALJ") decision is not supported by substantial evidence and is contrary to law. The Commissioner argues that the ALJ's decision should be affirmed because it is supported by substantial evidence. For the reasons set forth more fully below, the Claimant's motion for summary judgment is granted, and the Commissioner's motion is denied. The matter is remanded.

I. BACKGROUND

A. Procedural History

The Claimant filed an application for disability on August 29, 2008, alleging a disability onset date of July 30, 2008. R. 168, Dkt. #15, p. 2-3. The application was initially denied on October 3, 2008 and upon reconsideration on January 5, 2009. Id. The Claimant filed a timely request for a hearing on March 6, 2009. Id. On December 3, 2009, the ALJ conducted a hearing in Evanston, Illinois. Id. The Claimant, Medical Expert William Newman, M.D. and Vocational Expert James J. Radke testified at the hearing. R. 14.

On December 8, 2009, the ALJ issued a decision denying the claim for benefits. Dkt. #15, p. 3. The Claimant filed a timely request to review the ALJ's decision. On September 10, 2010, the Appeals Council denied the review, making the ALJ's decision the final decision of the Commissioner. Id. Thereafter, the Claimant filed this appeal pursuant to 42 U.S.C. §405(g). B. Hearing Testimony Regarding Impairment

1. Claimant

Counsel represented the Claimant at his hearing on December 3, 2009. R. 15. At that hearing, Claimant testified that he is right hand dominant, had not worked since injuring his arm, and previously worked in the restaurant business. R. 18-19. The Claimant attended high school but did not graduate. R. 20. However, he obtained his GED and took a culinary arts class at Elgin Community College. R. 21-22.

The Claimant testified that he injured his arm (including cutting his brachial artery) when, after drinking with friends near Harlem or Central, he lost his balance and fell through a window. R. 22, 32. The Claimant testified that the hospital indicated that he had a blood alcohol level of.19. R. 23. At the time of the incident in July of 2008, the Claimant was 6' 2" and weighed nearly 300 pounds, but at the time of his hearing, the Claimant weighed about 270 pounds. R. 26. The Claimant was prescribed a brace for his arm and wears it. R. 26 The medical records indicate that the Claimant only wears the brace in public. R. 312.

At the hearing, the Claimant attempted to demonstrate the problems with his wrist. R. 27. Although the transcript is somewhat confusing, it appears that the Claimant does not have dorsiflexion in his right wrist, meaning he cannot lift it upwards, nor can he supinate. R. 27.

The Claimant testified that he does "not really" use his right arm, although he tries to use it. R. 34. For example, the Claimant tries to open doors by using the door knob, which he cannot do without wearing his brace. R. 34.

The Claimant testified that he is able to dress and undress himself. R. 34. But the Claimant testified that "it is kind of hard" for him to zip. R. 35.

The Claimant testified that he uses his left hand for personal care, such as brushing his teeth and washing. R. 35.

The Claimant testified that he is able to drive, and that he drove to the hearing. R. 35. The Claimant also testified that, after his injury, he began driving in early November 2008. R. 65. At that time, he met friends at a restaurant in Northwest Chicago and he then drove home to Crystal Lake. R. 67. According to the Claimant, he "drove home good" and was able to safely and successfully drive. R. 67-68. But the Claimant also testified that his physical therapist said the Claimant should use a knob on the steering wheel. R. 68-69. At this point in the hearing, the vocational expert stated that the Rehabilitation Institute used driving knobs "a fair amount." R. 69. According to the Claimant, he only used his left arm to drive, and that on "normal weeks" he drove about 10 miles, but that during the week of the hearing, he drove over 100 miles. R. 70. The Claimant also admitted to driving to a Cubs game from his home in Crystal Lake. R. 71.

The Claimant testified that the only improvement to his injured arm that he noticed was that he had more grip strength with the brace on, and that his improvement has been "very slow." R. 64.

Upon questioning by the medical expert at the hearing, the Claimant stated that he was "not really [suffering] pain, " but described his condition "more like stiffness." R. 37. The Claimant demonstrated that he could bend his elbow almost 100 degrees, and can straighten it. R. 37. The Claimant testified that he had swelling in his hand, but the medical expert commented that the swelling was not significant at that time. R. 38.

Upon questioning by his counsel, the Claimant testified that although he can cook for himself at home, he probably could not "take a ham out of the oven by himself" because he would need two hands. R. 59. The Claimant also testified that he was missing some muscle in his right forearm, and had no muscle strength in his right forearm. R. 72-73. The Claimant testified that he washed his face with his left hand, and that it takes about one or two minutes to zip his coat with his left hand. R. 75. Although the Claimant can pick up a remote, he cannot use the buttons quickly. R. 76. Likewise, he cannot dial a phone quickly. R. 77. The Claimant further testified that he cannot write with his right hand because he cannot control the pen; as a result, he signs his name with his left hand. R. 77-78. Moreover, the Claimant cannot tie his shoes. R. 78. Additionally, he has difficulty counting money. R. 79. Although the Claimant cannot lift his dogs, he can pick up a five pound bag of cat food. R. 80.

2. Medical Expert

A medical expert, Dr. William Newman, testified at the hearing, after reviewing the Claimant's medical record and listening to the Claimant's testimony. R. 36, 39-48. He testified that the Claimant had injured his brachial artery, the brachial vein, the brachialis muscles, as well as the radial nerve. R. 39. In response to the ALJ's question of whether the Claimant's condition would meet or equal a listing, Dr. Newman noted that the medical records indicated that immediately after the Claimant's initial surgery, the Claimant developed a thrombosis that needed to be repaired. R. 40. Dr. Newman opined that no bony injury existed, that there was not currently "a lot of swelling, " and that the Claimant was "doing pretty good." R. 40. Dr. Newman noted that the Claimant had radial nerve palsy, and that the Claimant could not dorsiflex, hyper-extend at the metacarpal phalangeal joints, or extend the right thumb. R. 40. But according to Dr. Newman, the Claimant could extend the distal joints of the fingers and the thumb. R. 40. As a result of these injuries, Dr. Newman opined that the Claimant had functional impairments, and could not, for example, open a door knob, but could close a door. R. 41. In finally answering the ALJ's question, Dr. Newman stated that for a closed period, he believed the Claimant's condition met a listing. R. 41-42. In response to questioning by the Claimant's attorney, Dr. Newman stated that a listing under Section 1.08 was met for one (1) year. R. 43. Additionally, Dr. Newman stated that because of the injury, although the Claimant may have trouble grasping an item, the Claimant should not have difficulty holding on to the item. R. 44. Moreover, if the Claimant were to wear his brace, according to Dr. Newman, the Claimant should be able to grasp an item. R. 44-45. Dr. Newman acknowledged that the Claimant could not supinate, which would make it difficult for the Claimant to control an object once he grasps it. R. 45.

3. Vocational Expert

A vocational expert, James J. Radke, also testified at the hearing. R. 48-58. He testified that he read the Claimant's record and listened to his testimony. R. 48. Mr. Radke testified that the Claimant's previous employment as a bartender and cook required bimanual dexterity and coordination. R. 48. The ALJ then questioned Mr. Radke and asked if unskilled jobs existed for a person could only use his dominant upper extremity as a guide but could fully use the other upper extremity, could operate an automobile and perform personal care. R. 49. Mr. Radke stated that there were thousands of jobs that existed in Northeastern Illinois that such a person could perform, including cashier, mail clerk, courier and security guard. R. 49.

On cross examination, Mr. Radke stated that in some instances a cashier may need two hands but it was not necessary. R. 51. Mr. Radke's belief was based upon personal observation. R. 51. In fact, Mr. Radke testified that ...


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