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Derr v. Colvin

United States District Court, N.D. Illinois, Western Division

February 20, 2014

BRIAN C. DERR, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


IAIN D. JOHNSTON, Magistrate Judge.

Claimant Brian C. Derr (hereinafter, "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 disability insurance benefits ("DIB") under Title II of the Social Security Act ("SSA"). This matter is before the Court on cross-motions for summary judgment. (Dkt. #13, 15).

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 below, the Claimant's motion for summary judgment (Dkt. #13) is granted in part and denied in part, and the Commissioner's motion is denied. The ALJ's decision is reversed, and this matter is remanded to the SSA for further proceedings consistent with this Memorandum Opinion and Order. On the present record, the Court declines to remand with an order to award benefits.


A. Procedural History

The Claimant filed an application for disability on April 6, 2009, alleging a disability onset date of August 7, 2007, due to blood clots in his lungs and complications from a surgery to remove a noncancerous tumor on his right lung.[2] R. 114, 132. The application was denied initially on July 10, 2009 and upon reconsideration on November 19, 2009. R. 54-71. The Claimant filed a timely request for a hearing on December 1, 2009. R. 72-74. The ALJ conducted a video hearing on July 22, 2010. R. 30. The Claimant, his counsel, Medical Expert Paul A. Boyce, M.D., and Vocational Expert Jill K. Radke testified at the hearing. R. 30-53.

On July 29, 2010, the ALJ issued a decision denying the claim for benefits. R. 18-26. On September 8, 2010, the Claimant filed a timely request to review the ALJ's decision. R. 12. On January 24, 2011, the Appeals Council denied the review, making the ALJ's decision the final decision of the Commissioner.[3] Thereafter, the Claimant filed this appeal pursuant to 42 U.S.C. §405(g).

B. Hearing Testimony

1. Claimant

Counsel represented the Claimant at his hearing on July 22, 2010. R. 30. At that hearing, the Claimant testified that he was 5'9" and weighed 180 pounds. R. 35. He had two children and lived by himself. R. 35. The Claimant testified that he completed seventh grade. R. 36. After seventh grade, he was assigned to an "alternative education" behavioral program. R. 36-37. After two and half years in the behavioral program, he was assigned to ninth grade, dropped out of school, and unsuccessfully tried to obtain his GED. R. 36. When asked by the ALJ to describe his behavioral problems, the Claimant responded that he was easily misled by other peers and had authority problems. R. 37. The Claimant also reported that he had trouble reading in school. R. 37.

The Claimant testified that he had surgery in 2007 to remove a non-cancerous mass from his right lung and esophagus and to place a filter in his artery to prevent blood clots in his lungs. R. 39-40. Following the surgery, he began taking a blood thinner medication, an alternative to Coumadin[4], to prevent blood clots from reaching his heart.[5] R. 39. The Claimant testified that after his surgery, he had difficulty breathing and arthritis throughout his rib cage and lower back, which caused swelling, pinched nerves, and pain on a regular basis. R. 39-40. In addition to his pulmonary difficulties, he testified that he experienced pain before and after the surgery from a few vertebrae out of place in his lower back and had a cervical strain in his neck. R. 40. He testified that he took Meloxicam[6], which caused him dizziness and drowsiness, and Vicodin[7] at night for pain and to help him sleep. R. 40, 42, 45.

In regard to daily life, the Claimant testified that he received assistance with cleaning and other house chores from his 10-year-old daughter or from others. R. 40-41. Friends checked in every couple days to see if he needed assistance. R. 42. He was able to take baths, showers, and change his own clothes without assistance, but sometimes his daughter put on his socks for him. R. 40. The Claimant stated that he did not cook for himself. R. 41. Rather, someone cooked for him; he had food that was warmed up in the microwave, or he ate fast food. R. 41. He went grocery shopping with someone to help him with lifting because he felt pain in his lower back when he lifted and he could not regularly lift a gallon of milk. R. 41, 43. The Claimant testified that a normal day for him consisted of him calling his daughter to see what she was doing for the day, finding something to eat, resting in the middle of the day, and avoiding sudden movements that could cause pain. R. 41-42.

When asked by the ALJ why the Claimant still needed to "take it easy" three years after his surgery, the Claimant stated that he had severe back pain and any lifting caused the pain to return. R. 42. The Claimant testified that he also had back pain after standing for a while and he felt restless sitting for long periods of time. R. 43. Additionally, the Claimant had trouble breathing when going up and down stairs. R. 43.

In regard to his work, the Claimant testified that he previously worked in construction, but had not worked since July 2007. R. 37. According to the Claimant, he stopped working because his former employer and other companies thought that his blood thinner medication put him at risk if he were to cut himself. R. 38.

2. Medical Expert

The non-examining Medical Expert, Dr. Paul A. Boyce, M.D. ("ME"), determined that the Claimant had a right lower lung lobectomy to remove a noncancerous lung mass in 2007. R. 46. The ME testified that the pathology records suggested that the mass was an organized pneumonia with some resulting fibrosis[8]. R. 46. He testified that the Claimant had an inferior vena cava filter placed in his artery, which suggested the past presence of pulmonary embolus. R. 46-47. The ME testified that pulmonary function studies and a recent computed tomography ("CT") scan of the chest showed no evidence of significant pulmonary impairment, pulmonary embolus, or other masses. R. 47. Specifically, the Claimant's forced vital capacity ("FVC") and forced expiratory volume in one second ("FEV1")[9] post-bronchodilator pulmonary function test results were normal. R. 47. The ME concluded that because of the filter in place to prevent the propagation of another clot, the Claimant may not be able to go off Coumadin. R. 48.

The ME reported that the Claimant had a magnetic resonance imaging ("MRI") of the lumbar sacral spine in 2010, which showed bulging at L4, L5, and S1 disks with some hypertrophy of ligamentum flavum[10], but no evidence of nerve root compression or herniation. R. 47. The ME also determined that a MRI of the thoracic spine indicated some early degenerative arthritis with minimal degenerative hiatus at the T8 and T9 vertebrae, but no evidence of nerve root compression. R. 47-48. The ME did not evaluate the chiropractic exams because he did not believe a chiropractor was a legitimate source of treatment. R. 48. However, the ME noted that a clinician associated with a chiropractor examined the Claimant and reported some reduced lumbar range of motion, but no evidence of motor or sensory deficits. R. 48. Therefore, the ME concluded that the Claimant had degenerative disc changes and impulses in the thoracic and lumbar spine, without evidence of nerve root compression or neurological injury. R. 48.

When asked by the ALJ what restrictions the ME would place on the Claimant's activity, the ME partially adopted the residual functional capacity ("RFC") assessment completed by Dr. Francis Vincent, a medical consultant for the Illinois Department of Human Services - Bureau of Disability Determination Services (DDS), on July 9, 2009. R. 49, 264-71. Specifically, the ME agreed with Dr. Vincent's RFC that placed no exertional limitations on the Claimant, but rejected the limitation against concentrated exposure to fumes, odors, dusts, gases, and poor ventilation because there was no evidence of ongoing respiratory illness. R. 49, 268. Additionally, the ME testified that the Claimant should have an additional restriction of avoiding work with dangerous cutting tools because of his anticoagulant prescription. R. 49.

When the Claimant's counsel asked the ME if he took into consideration the back injuries and problems when evaluating the Claimant's restrictions, the ME testified that he did and found that the back injuries were insignificant, fairly common, and not associated with any motor or neurologic issues. R. 49. When asked by counsel if he took into consideration the Claimant's reported back pain, the ME testified that he did not because the pain was short-lived and not ongoing. R. 50. He explained that the Claimant first sought treatment for significant back pain in March 2010 and the record was "fairly sketchy" regarding this issue. R. 50.

3. Vocational Expert

A Vocational Expert, Jill K. Radke ("VE"), also testified at the hearing. During the testimony, the ALJ asked the VE whether there would be jobs for an individual with the Claimant's age, education, and work experience and being restricted to work with no cutting tools that might cause danger of injury. R. 50. The VE testified that although the Claimant could not go back to his past relevant work, there would be other jobs that he could perform. R. 51. The VE testified that under the medium category of work, the Claimant could perform work as a dishwasher, hand packer, and laundry worker. R. 51. The VE stated that these jobs were consistent with the Dictionary of Occupational Titles ("DOT"). R. 51. When asked by the Claimant's counsel whether the VE took into consideration the risk of injury with each position, the VE stated that she did and that the risk would not alter the number of available positions. R. 52.

C. Medical Evidence

1. Lung Mass. and Pulmonary Embolism

In June 2007, the Claimant was hospitalized for a pulmonary embolism and a benign, fibrotic mass in the lower lobe of his right lung. R. 238, 242-43. He underwent a thoracotomy and lobectomy for the lung mass, and his right fifth rib was surgically resected. R. 238, 243. Upon discharge, the Claimant started to take 5 milligram of Coumadin, an anticoagulant, daily. R. 238. On August 10, 2008, Dr. Workman noted that the Claimant still experienced shortness of breath and determined that the Claimant had a small stable pleural thickening and chronic changes of the right lung base. R. 251, 253.

On July 6, 2009, Dr. Kamlesh Ramchandi, M.D., examined the Claimant and administered respiratory tests. Dr. Ramchandi noted that the Claimant had difficulty completing the tests because of fatigue and that the Claimant's expiration was prolonged. The Claimant's FEV1 predicted was 3.85 liters, pretreatment was 3.4, and post-treatment was 3.55. His FVC predicted was 5 liters, pretreatment was 3.85, and post-treatment was 4.2. There were no rales or ronchi. R. 260-63.

A non-examining state agency physician, Dr. Francis Vincent, M.D., reviewed the Claimant's file on July 9, 2009 and provided an opinion as to his functional capabilities. Dr. Vincent opined that although the Claimant had a history of acute plural embolism and a right lower lobectomy, he did not meet, medically equal, or functionally equal a listed impairment. Specifically, he found that the Claimant had no exertional, postural, manipulative, visual, communicative, or environmental limitations except to avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. In support of his findings, Dr. Vincent noted that the Claimant was taking medication for his pulmonary embolism and his FEV1 and post-med respiratory tests were normal. R. 264-71.

When seen by his primary care physician, Dr. Workman, on March 10, 2010, the Claimant's chest and lungs were clear upon examination and his International Normalized Ratio ("INR")[11] was acceptable. A CT of his chest on March 31, 2010 showed fibrosis atelectasis[12 ...

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