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McKinnes v. Colvin

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

March 21, 2014

CURTIS McKINNES, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.

MEMORANDUM OPINION AND ORDER

MARY M. ROWLAND, Magistrate Judge.

Plaintiff Curtis McKinnes filed this action seeking reversal of the final decision of the Commissioner of Social Security denying his application for Supplemental Security Income under Title XVI of the Social Security Act (Act). 42 U.S.C. §§ 405(g), 1381 et seq. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and Plaintiff has filed a request to reverse the ALJ's decision and remand for additional proceedings. For the reasons stated below, the Commissioner's decision is affirmed.

I. THE SEQUENTIAL EVALUATION PROCESS

To recover Supplemental Security Income (SSI), a claimant must establish that he or she is disabled within the meaning of the Act. York v. Massanari, 155 F.Supp.2d 973, 977 (N.D. Ill. 2001).[2] A person is disabled if he or she is unable to perform "any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 416.905(a). In determining whether a claimant suffers from a disability, the Commissioner conducts a standard five-step inquiry:

1. Is the claimant presently unemployed?
2. Does the claimant have a severe medically determinable physical or mental impairment that interferes with basic work-related activities and is expected to last at least 12 months?
3. Does the impairment meet or equal one of a list of specific impairments enumerated in the regulations?
4. Is the claimant unable to perform his or her former occupation?
5. Is the claimant unable to perform any other work?

20 C.F.R. §§ 416.909, 416.920; see Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). "An affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than Step 3, ends the inquiry and leads to a determination that a claimant is not disabled." Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985). "The burden of proof is on the claimant through step four; only at step five does the burden shift to the Commissioner." Clifford, 227 F.3d at 868.

II. PROCEDURAL HISTORY

Plaintiff applied for SSI on March 14, 2005, alleging that he became disabled on July 30, 2000, due to a right leg injury and a heart condition. (R. at 61, 69-70, 285). The application was denied initially and on reconsideration, after which Plaintiff filed a timely request for a hearing. ( Id. at 54-66, 285). On June 7, 2007, Plaintiff, represented by counsel, testified at a hearing (First Hearing) before an Administrative Law Judge (ALJ). ( Id. at 190-281, 285). The ALJ also heard testimony from Alzater Hodges, Plaintiff's grandmother, and Grace Gianforte, a vocational expert (VE). ( Id. at 88, 190-281, 285). The ALJ denied Plaintiff's request for benefits on September 25, 2007. ( Id. at 17-32, 285).

After the Appeals Council denied review, Plaintiff appealed to the federal court, and the case was remanded by agreement.[3] (R. at 4-7, 285, 310-13). Subsequently, the Appeals Council vacated the decision, remanded the case to an ALJ for further proceedings, and ordered the ALJ to (1) give further consideration to whether Plaintiff can ambulate without use of a case, (2) reassess Plaintiff's RFC considering whether use of a cane is a medical necessity, and (3) obtain supplemental evidence from a VE to clarify the effect of the assessed limitations on the Plaintiff's occupational base. ( Id. at 310-11).

On remand, Plaintiff, represented by counsel, testified at a hearing on February 10, 2011 (Second Hearing). (R. at 286, 508-61). The ALJ also heard testimony from William H. Newman, M.D., an impartial medical expert (ME), and Richard J. Hamersma, Ph.D., a VE. ( Id. at 286, 306, 331, 508-61).

The ALJ denied Plaintiff's request for benefits on January 20, 2012. (R. at 285-305). Applying the five-step sequential evaluation process, the ALJ found, at step one, that Plaintiff has not engaged in substantial gainful activity since March 14, 2005, the application date. ( Id. at 288). At step two, the ALJ found that Plaintiff's mild obesity is a severe impairment. ( Id. ). At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meet or medically equal the severity of any of the listings enumerated in the regulations. ( Id. at 289).

The ALJ then assessed Plaintiff's residual functional capacity (RFC)[4] and determined that he has the RFC to "perform a wide range of light and sedentary work, " as defined in 20 C.F.R. § 416.967(b):

He can lift, carry, push and/or pull up to 20 pounds occasionally and up to 10 pounds frequently, although he should not do constant repetitive pushing or pulling against resistance with the right lower extremity. Because of his obesity and musculoskeletal complaints, he should never climb ladders, ropes or scaffolds or work on moving or unstable surfaces and should not do work that would expose him to unprotected heights or unguarded hazardous equipment. I find further that [Plaintiff's] pain, "attacks, " and other symptoms would distract him only rarely during a workday, to the extent that he was off task and not productive, outside break time.

(R. at 290-91). At step four, the ALJ determined that Plaintiff has no past relevant work. ( Id. at 302). At step five, based on Plaintiff's RFC, age, education, work experience, and the VE's testimony, the ALJ determined that that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, including cashier, hand packer, and telephone solicitor. ( Id. at 303-04). Accordingly, the ALJ concluded that Plaintiff was not suffering from a disability as defined by the Act. ( Id. at 304-05).

Plaintiff did not file exceptions with the Appeals Council, and the Appeals Council did not assume jurisdiction (Compl. ¶ 7), leaving the ALJ's decision as the final decision of the Commissioner, 20 C.F.R. § 416.1484; Corder v. Barnhart, 504 F.Supp.2d 351, 353 (N.D. Ill. 2007); Rounds v. Colvin, No. 11 C 3410, 2013 WL 3063982, at *1 (N.D. Ill. June 18, 2013). Plaintiff now seeks judicial review of the ALJ's decision.

III. STANDARD OF REVIEW

Judicial review of the Commissioner's final decision is authorized by § 405(g) of the Act. In reviewing this decision, the Court may not engage in its own analysis of whether the plaintiff is severely impaired as defined by the Social Security Regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Nor may it "reweigh evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute [its] own judgment for that of the Commissioner." Id. The Court's task is "limited to determining whether the ALJ's factual findings are supported by substantial evidence." Id. (citing § 405(g)). Evidence is considered substantial "if a reasonable person would accept it as adequate to support a conclusion." Indoranto v. Barnhart, 374 F.3d 470, 473 (7th Cir. 2004). "Substantial evidence must be more than a scintilla but may be less than a preponderance." Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). "In addition to relying on substantial evidence, the ALJ must also explain his analysis of the evidence with enough detail and clarity to permit meaningful appellate review." Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005).

Although this Court accords great deference to the ALJ's determination, it "must do more than merely rubber stamp the ALJ's decision." Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (citation omitted). "This deference is lessened, however, where the ALJ's findings rest on an error of fact or logic." Thomas v. Colvin, 13-2602, ___ F.3d ___, 2014 WL 929150, at *2 (7th Cir. Mar. 11, 2014). The Court must critically review the ALJ's decision to ensure that the ALJ has built an "accurate and logical bridge from the evidence to his conclusion." Young, 362 F.3d at 1002. Where the Commissioner's decision "lacks evidentiary support or is so poorly articulated as to prevent meaningful review, the case must be remanded." Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).

IV. MEDICAL EVIDENCE

The earliest medical record is dated October 4, 2001, when Plaintiff reported a 1994 gunshot wound to his right leg and complained of occasional aching in cold weather. (R. at 138-39). He also reported being assaulted a year earlier, suffering an injury to the left side of his chest. ( Id. ). Although Plaintiff complained of a heart murmur, none was found on examination, and he did not have any signs or symptoms of cardiac impairment. ( Id. ). A chest x-ray taken the same day was negative. ( Id. at 140-41).

Plaintiff began treating with Conrad May, M.D., on February 24, 2004. (R. at 148; see id. at 167). He complained of right leg pain, and acknowledged drinking alcohol and smoking marijuana. ( Id. at 148). On March 23, 2004, Plaintiff again complained of right leg problems, stating that it varies between "locking up" and having difficulty bearing weight. ( Id. at 149). Dr. May referred him for an x-ray. ( Id. ). Plaintiff had the x-ray on April 6, 2004, which was unremarkable. ( Id. at 160). On May 3, 2004, Dr. May recommended that Plaintiff seek an MRI of his right knee, suggesting to him how to get one without charge. ( Id. at 150).

On July 13, 2004, Plaintiff presented to the Stroger Hospital emergency room, complaining of increased right knee pain and episodes of knee swelling related to slipping four months previously. (R. at 124-26). On examination, Plaintiff had normal strength and full range of motion of his right knee, but experienced increased pain with flexion of the knee. ( Id. at 124). An x-ray showed mild soft tissue swelling but no fracture. ( Id. at 125). Plaintiff was advised to apply ice and elevate the knee, and he was referred for physical therapy. ( Id. ). He was prescribed 1000mg Tylenol, 25mg amitriptyline, [5] and 800mg ibuprofen. ( Id. ).

On March 28, 2005, Plaintiff complained that he was unable to stand because of leg pain. (R. at 151). Dr. May prescribed 600mg Motrin and Vicodin. ( Id. ). On July 11, 2005, Plaintiff complained again of leg problems, and Dr. May refilled Plaintiff's prescriptions. ( Id. at 152). On October 25, 2005, Plaintiff reported pain in his right leg. ( Id. at 153). On March 21, 2006, Plaintiff reported feeling "okay." ( Id. at 152).

On April 23, 2005, Jeffrey J. Ryan, M.D., conducted an internal medicine consultative examination on behalf of the Commissioner. (R. at 111-16). Plaintiff stated that he suffered a gunshot wound to his right leg in 1994 and a subsequent fall injury in 2000. ( Id. at 111; see id. at 180). Ever since that time, he has had persistent severe pain making it difficult for him to walk without a cane. ( Id. at 111). Even using the cane, he can walk only a half block and can stand for no more than 15-20 minutes. ( Id. ). Plaintiff stated that he had a heart murmur in the past, which caused his left chest to swell-up when he used his arms. ( Id. at 112). On examination, Dr. Ryan found Plaintiff's gait very slow and antalgic; he had difficulty walking and was unable to ambulate more than 20 feet without the use of his cane. ( Id. ). He was unable to perform toe, heel, tandem, or squat and rise secondary to pain in his right leg. ( Id. at 113). He had some diminished strength in the right leg secondary to pain; otherwise strength, sensation, and deep tendon reflexes were symmetric and within normal limits. ( Id. ). Plaintiff had full, painless range of motion of all ...


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