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Khan v. Colvin

United States District Court, Seventh Circuit

October 18, 2013

CAROLYN W. COLVIN, [1] Commissioner of Social Security, Defendant.


JEFFREY COLE, Magistrate Judge.

The plaintiff, Taqiuddan Khan, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 423(d)(2). Mr. Khan asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.



Mr. Khan applied for DIB on June 13, 2007, alleging that he had become disabled on August 15, 2005, due to open heart surgery, severe weakness, panic attacks, memory loss diabetes, hypertension, coronary artery disease, and high cholesterol. (Administrative Record ("R.") 15, 264). Mr. Khan's insured status expired on December 31, 2005 (R. 15, 40), meaning he had to establish he became disabled before that. Shideler v. Astrue, 688 F.3d 306, 311 (7th Cir. 2012). His claim was denied initially and upon reconsideration. (R. 105-111, 119-123). Mr. Khan continued pursuit of his claim by filing a timely request for hearing. (R. 112-114).

An administrative law judge ("ALJ") convened a hearing on March 24, 2009, and reconvened it on October 20, 2009, at which Mr. Khan, represented by counsel, appeared and testified. (R. 28-104). In addition, at the second hearing, Mr. Khan's wife also testified, along with Dr. Ronald Semerdjian and Susan Entenberg, who testified as medical and vocational experts, respectively. (R. 39). On February 22, 2010, the ALJ issued a decision finding that Mr. Khan was not disabled because he retained the capacity to perform a significant range of medium work, which allowed him to return to his past relevant work as a bookstore cashier and a medical technologist and to perform other work in the economy. (R. 12-27). This became the final decision of the Commissioner when the Appeals Council denied Mr. Khan's request for review of the decision on July 15, 2011. (R. 1-5). See 20 C.F.R. §§ 404.955; 404.981. Mr. Khan has appealed that 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).




The Vocational Evidence

Mr. Khan was born on December 3, 1949, making him fifty-six years old at the time his insured status expired. (R. 260). From 1975 until 1999, he worked as a medical technician. (R. 265). More recently, he was a cashier at a bookstore for three months in 2005. (R. 265).


The Medical Evidence

The medical record in this case is a 700-page juggernaut but, judging from Mr. Khan's brief, very little of it is relevant to his claim. He refers the court to just a few scant pages of medical evidence. ( Plaintiff's Memorandum, at 17, 18-19). On August 27, 1997, Mr. Khan went to the emergency room after becoming dizzy and experiencing palpitations at work. His blood pressure was significantly elevated at 187/97. (R. 761). While at the hospital, he had arrhythmia and sinus tachycardia. (R. 762). An ECG was abnormal, revealing a nonspecific T-wave abnormality but no acute ST changes. (R. 758, 778-79). An exercise stress test showed no ischemia. (R. 762). It was said that Mr. Khan had 5 risk factors for coronary artery disease, among which was a strong family history wherein his father, brother, and two uncles all died from it between the ages of 50 and 55. (R. 784). He was treated and discharged on aspirin, glyburide, atanolol, and lisinopril in stable condition. (R. 762). As the Commissioner points out, all of this evidence dates back to the time during which Mr. Khan was working, about eight years prior to his alleged onset date.

The rest of the evidence the plaintiff relies on to support his claim dates a year and a half after the expiration of Mr. Khan's insured status in December 2005. On June 3, 2007, Mr. Khan went to Swedish Covenant Hospital complaining of respiratory distress. He was treated with Lasix and Albuterol. (R. 598). On June 18th, Mr. Khan's treating physician, Dr. Abdul Sattar, reported that he had been treating Mr. Khan for hypertension and diabetes for ten years. He added that Mr. Khan "had severe [coronary artery disease] and had Triple Vessel By pass." Dr. Sattar also stated that Mr. Khan had memory loss and congestive heart failure. (R. 385).

Also that same month, lab results revealed that Mr. Khan's blood glucose was slightly elevated - 108 when the normal range is 65-99. (R. 398). In July 2007, Dr. Sattar filled out a form and reported that the onset of Mr. Khan's coronary artery disease was April 2007. (R. 402). The first examination showing heart failure was in May of 2007. (R. 402). Mr. Khan exhibited peripheral edema, jugular vein distension, pulmonary edema, dyspnea, and orthopnea. (R. 403). Dr. Sattar rated Mr. Khan's impairment as Class II on the New York Heart Association scale. (R. 403). That signifies a mild impairment, resulting in a "[s]light limitation of physical activity. [The patient is] comfortable at rest, but ordinary physical activity results in fatigue, palpitation, or dyspnea." Dr. Sattar confirmed that Mr. Khan experienced recurrent fatigue, palpitation, and dyspnea. (R. 404). He said that Mr. Khan could walk for no longer than five minutes. He could walk two blocks slowly, but could not climb, push, pull, or bend. (R. 404). Mr. Khan's response to medication was fair. (R. 406). Dr. Sattar also reported that Mr. Khan suffered no complications from his diabetes, which was controlled with Actos. (R. 407).

By October 2007, Dr. Sattar said Mr. Khan had no limitations on his ability to sit, and his ability to stand was reduced by just 10%. His ability to pull, push, and stoop were reduced by 50%, while he had a 25% reduction in bending. (R. 417). Another treating physician - the signature is illegible - said that Mr. Khan had chest discomfort that was precipitated by walking, emotion, physical work, and facing cold air. (R. 423). It radiated to his throat twice a day, and was relieved with rest or a vasodilator. (R. 423). He suffered fatigue and dyspnea upon physical activity. That doctor restricted him to light exercise. (R. 424). In March of 2009, Dr. Sattar offered yet another opinion. Now he sad Mr. Khan was unable to walk or sit for more than a half-hour total in an eight-hour day. (R. 1006). He was unable to work at all, and the onset of his symptoms was 2002. (R. 1007-08).


The Administrative Hearing Testimony


The Plaintiff's Testimony

At the first hearing, the ALJ explained that the record included only evidence from well before the alleged onset of disability and from after the expiration of Mr. Khan's insured status. (R. 31-36). The hearing was set over to a later date so relevant evidence, if any, could be submitted, the date last insured ("DLI") could be verified, and a medical expert could be engaged. (R. 34-36).

When the hearing reconvened about seven months later, Mr. Khan testified that his problems began in August of 2005, when he began feeling dizzy, weak and forgetful. (R. 45). Then he said he began feeling weak in 1997. (R. 45). He explained that he was terminated from two jobs due to his weakness in 2005. (R. 46). He could no longer lift books or boxes that were heavy. (R. 46). He said he got short of breath lifting more than five pounds, walking two blocks, or climbing five stairs. (R. 46).

Mr. Khan was laid off from Michael Reese Hospital during a cut back in 1999 and went on unemployment. (R. 47). He was fired from the bookstore job because, even though he sat for about 6 of 8 hours each day - he worked just 2 days a week - and carried no more than 10 pounds, he could not perform the work. (R. 47-48). He was also terminated after just 28 days working at Rush Presbyterian, where he was a lab technician. (R. 49-50). Again, he only had to lift about ten pounds in the job and sat nearly all day. (R. 50).

At home, he didn't help his wife with any housework; he spent most of his time reading. (R. 52). Between 1999 and 2005, he did some volunteer work, but most lived "[l]ike a retired life, sick man, sitting most of the time at home, some time reading books, watching TV." (R. 53). Mr. Khan then said he currently spent a lot of time meditating and watching the neighbors, who sometimes caused problems. (R. 54). He said he doesn't walk anywhere but his hallway and does a little bit of stretching for his shoulder. (R. ...

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