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Herring v. Colvin

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

May 20, 2014

GENE HERRING, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, [1] Defendant.


YOUNG B. KIM, Magistrate Judge.

Gene Herring seeks disability insurance benefits ("DIB"), 42 U.S.C. §§ 416(i), 423, and supplemental security income ("SSI"), id. §§ 1382, 1382c(a)(3)(A), based on his claim that he is disabled by a combination of avascular necrosis in his hips and a hearing deficit. After the Appeals Council declined to review an administrative law judge's ("ALJ") decision denying his applications, Herring filed this suit seeking judicial review. See 42 U.S.C. § 405(g). Before the court are the parties' cross-motions for summary judgment. For the following reasons, Herring's motion for summary judgment is granted and the government's motion is denied:

Procedural History

In 2008 Herring protectively filed applications for a period of disability and DIB and for SSI, claiming a disability onset date of October 30, 2007. (Administrative Record ("A.R.") 157, 165.) After his claims were denied initially and upon reconsideration, (id. at 73-76), Herring requested and was granted a hearing before an ALJ. That hearing took place via videoconference on July 27, 2010. (Id. at 42-72.) On September 2, 2010, the assigned ALJ denied Herring's applications for DIB and SSI. (Id. at 34.) When the Appeals Council denied review, (id. at 1-7), the ALJ's decision became the final decision of the Commissioner, see Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013). Herring filed the current suit seeking judicial review of the Commissioner's final decision. See 42 U.S.C. § 405(g). According to Herring's complaint, the Commissioner found him disabled as of September 2010 based on a separate application for benefits not at issue here. (R. 1, Compl. ¶ 8.) Herring is currently seeking review of the denial of his claim from his alleged onset date of "October 30, 2007, to the present." (Id. ¶ 9.) The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c).


In March 2004 Herring was diagnosed with an erosive lesion compressing his brain stem. (A.R. 559.) He underwent brain surgery, after which he experienced facial nerve weakness, recurrent headaches, and hearing loss in his left ear. (Id. at 562-63.) In 2007 Herring also began experiencing hip pain resulting from a degenerative disease called avascular necrosis, which involves the death of cells because of deficient blood supply. See STEDMAN'S MEDICAL DICTIONARY (27th ed. 2000). Herring claims that the combination of his partial deafness and his hip pain became disabling in October 2007. At his hearing before the ALJ, Herring presented both documentary and testimonial evidence in support of his claims.

A. Medical Evidence

Following his October 2004 brain surgery, the neurologist monitoring Herring's recovery recommended that he stay off of work until November 2006. (A.R. 259, 566.) In May 2007 Herring was evaluated by an ear, nose, and throat specialist, Dr. Dwight Grady, who observed that Herring had "[p]rofound left sensorineural hearing loss across all frequencies." (Id. at 306.) Dr. Grady opined that Herring's hearing loss would be permanent and that he could not benefit from amplification. (Id.) He recommended that Herring "strictly protect his right ear from noise exposure." (Id.)

In September 2007 Herring reported to an emergency room complaining of sharp pain in his right hip that became worse with weight-bearing, lifting, and bending. (Id. at 309.) Based on his review of an x-ray of Herring's right hip, the attending physician suspected avascular necrosis and referred Herring for a follow-up MRI. (Id. at 310.) That MRI confirmed the doctor's suspicion, showing bilateral avascular necrosis of Herring's femoral heads, more progressive in the right hip, with associated joint effusion, edema, sclerosis, and subchondral mild collapse. (Id. at 319.)

Herring's main doctor in 2008 and 2009 was Dr. Robert Blair, who monitored Herring's hip pain and treated him with pain medication. (Id. at 332.) Although Dr. Blair noted that Herring's condition might eventually require bilateral hip replacement surgery, he described him in April 2008 as "doing fairly well with his hips." (Id. at 333-34.) He noted that Herring showed a full range of motion and no pain on a Patrick's exam, a flexion and extension test designed to evaluate hip pathology. (Id.) Although he characterized Herring as being in "minimal discomfort, " he strongly advised him against work that requires standing, walking, and lifting, noting that he "really would do better with a more sedentary type activity." (Id. at 350.) In the months that followed, Dr. Blair's notes reflect that when Herring was taking a pain medication called Naproxen he did well, but he frequently could not afford to buy the medicine and would end up in the emergency room with significant pain. (See, e.g., id. at 332-33, 467.) At those ER visits Herring was prescribed pain medications including Percocet, Darvocet, and Vicodin. (Id. at 474-80, 502-06, 515-20, 524-27.) Herring reported to more than one ER doctor that the Naproxen did not fully relieve his pain. (Id. at 536, 544.) Herring also reported that he experiences intense pain when he overexerts himself. (Id. at 536.)

Even when Herring's pain was controlled by medication, Dr. Blair expressed ambivalence about his ability to work. In October 2008 he described Herring as being "disabled from any sort of significant physical activity, " but noted that "the possibility of sedentary work might be reasonable in the future but certainly not at this point." (Id. at 333.) In December 2008 Dr. Blair characterized Herring as being "disabled from any significant standing, walking, lifting, or any type of heavy work." (Id. at 332.) He reiterated that point in a February 2009 letter, but recommended that Herring train for a sedentary job. (Id. at 451.) In his most recent notes, dated June 2009, Dr. Blair noted that Herring "does fairly well as long as he's on his medicine" but again opined that he is "disabled for most types of work and probably anything that he's trained for." (Id. at 467-68.)

The medical record also includes two residual functional capacity ("RFC") assessments performed by consulting state physicians. (Id. at 322, 353.) In November 2008 medical consultant Dr. Perry White reviewed Herring's file and opined that he could sit, stand, or walk for about six hours in an eight-hour day and frequently lift ten pounds. (Id. at 323, 331.) Dr. White noted that Herring's allegations are credible and supported by medical records, but opined that he can perform light work because Herring himself reported "that he is asymptomatic." (Id. at 329.) Two months later medical consultant Dr. Melvin Clayton concurred that Herring could perform light work. (Id. at 354, 360.) Dr. Clayton acknowledged Dr. Blair's opinion that Herring could not perform significant physical activity or standing, but Dr. Clayton discounted those opinions as being reserved for the Commissioner and contradicting reports that Herring walks without a limp. (Id. at 359.) Dr. Clayton also described Herring's allegations as being only "partially credible, " because in his opinion Herring's physical examinations demonstrated his ability to perform light work. (Id. at 360.)

B. Vocational Evidence

In May 2008 Herring was referred for an evaluation with state vocational evaluator Skip Dougherty. (A.R. 261-66.) Herring reported to Dougherty that he was "a little sore" but said that he was "in pretty good health." (Id. at 262.) Dougherty wrote that it would be appropriate for Herring to attend community college to train for a job at the sedentary level, but noted that he would need to acquire computer skills and improve his math skills to succeed. (Id. at 263.) He noted that in his opinion Herring "could probably perform some jobs in the light strength range if he could receive an accommodation of alternating between sitting and standing." (Id.) Dougherty also wrote that Herring "would probably need to work in an environment where the usual noise level is rather low" to accommodate his partial deafness. (Id.) Based on the results of an oral directions test, Dougherty noted that Herring "would probably be able to correctly learn ...

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