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Kelly v. Colvin

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

September 3, 2014

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


SIDNEY I. SCHENKIER, Magistrate Judge.

Plaintiff Joseph Kelly moves for reversal and/or remand of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Title II Disability Insurance Benefits ("DIB") (doc. # 22). The Commissioner has filed a cross-motion seeking affirmance of the decision (doc. # 34). For the following reasons, we grant Mr. Kelly's motion and remand the Commissioner's decision.


Mr. Kelly applied for DIB on November 13, 2009, alleging he became disabled on May 10, 2008, at age 53 (R. 203). After his claim was denied initially and on reconsideration, Mr. Kelly received a hearing before an Administrative Law Judge ("ALJ") on March 23, 2011. After the ALJ issued an opinion denying DIB on April 28, 2011, the Appeals Council declined Mr. Kelly's request for review, making the ALJ's ruling the final decision of the Commissioner (R. 1-4). See Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012).

We first summarize the administrative record. Part A reviews Mr. Kelly's physical impairment, Part B reviews his mental impairment, Part C reviews the hearing testimony, and Part D summarizes the ALJ's opinion.


Mr. Kelly injured his right ankle in May 2006 while doing heavy construction work (R. 37-38). The hospital diagnosed a sprain and prescribed Vicodin (R. 38). Soon afterwards, Mr. Kelly returned to working full-time as a construction superintendent.

However, Mr. Kelly said that by June 2008, he was in so much pain that he lost the motivation and concentration to work (R. 46-47). On June 4, 2008, Mr. Kelly visited podiatrist Monif M. Matouk, D.P.M., complaining of severe ankle pain (R. 355). X-rays taken at the time suggested a chronic tear of a ligament in Mr. Kelly's right ankle, as well as mild degenerative joint changes and calcification ( Id. ). Dr. Matouk recommended supportive shoes, strengthening exercises, elevation, ice and anti-inflammatory medication, and he ordered an MRI, which revealed partial tears in a ligament and tendon in the ankle (R. 356). Dr. Matouk placed Mr. Kelly in a CAM Walker (a removable walking boot), and advised that Mr. Kelly could return to work on modified duty: he was limited to lifting and carrying up to 10 pounds, walking and standing occasionally, and sitting frequently (R. 375).

Between August and December 2008, Dr. Matouk gave Mr. Kelly cortisone injections and prescribed Medrol Dosepak (steroid) and Celebrex (anti-inflammatory) for his pain, and he limited Mr. Kelly to modified duty work: lifting and carrying up to 20 pounds occasionally, standing or walking less than two hours, and sitting frequently (R. 353-54, 376-78). Mr. Kelly received physical therapy from August through November 2008, but his progress was slow and he reported continuing pain (R. 353-54, 365-68). On December 4, 2008, Dr. Matouk opined that Mr. Kelly's improvement had plateaued, and he released Mr. Kelly to work without restrictions (R. 351, 379).

In January 2009, Mr. Kelly reported that he continued to have pain and tenderness in his ankle, but good strength and no instability (R. 395-96). In March through May 2009, Dr. Matouk gave Mr. Kelly several intramuscular injections to his ankle, but injections provided only transient relief; Mr. Kelly continued to complain of pain and weakness particularly when he walked on stairs or uneven ground (R. 349-50, 352). Dr. Matouk restricted Mr. Kelly from all work in April 2009 and renewed this restriction through July 2009 (R. 381, 383-85).

On April 6, 2009, Mr. Kelly was examined by orthopedic surgeon Brian C. Toolan, M.D. (R. 418-23). Mr. Kelly described his pain as sharp, episodic and persistent, and he rated it as a five to six out of ten in intensity (R. 420, 422). Dr. Toolan noted tenderness to palpation, but no swelling or deformity and full strength ( Id. ). He recommended an ankle orthotic instead of surgery and opined that Mr. Kelly could return to light duty work (R. 422-23).

In June and July 2009, Mr. Kelly continued to complain of significant pain and mild swelling (R. 347, 350). Dr. Matouk prescribed Medrol Dosepak and Celebrex, but opined that Mr. Kelly had reached the maximum medical improvement short of surgery. (R. 350, 347). Dr. Matouk ordered that Mr. Kelly undergo a Functional Capacity Evaluation ("FCE") (R. 347), which was performed by physical therapist Anura Bandara on August 19, 2009 (R. 651-93). Mr. Bandera found Mr. Kelly's subjective reports of pain and associated disability to be "both reasonable and reliable" (R. 651). Mr. Kelly rated his ankle pain at a one out of ten before testing, two-and-one-half out of ten after the testing, and five out of ten at its worst over the past thirty days (R. 690). Mr. Bandera opined that testing showed that Mr. Kelly was able to match all the necessary critical job demands to return to full duty as a Construction Superintendent as defined in the Dictionary of Occupational Titles ("DOT") (that is, a job with light physical demand level, which required lifting twenty pounds occasionally and ten pounds frequently, and sitting, standing and walking each up to one-third of the day) (R. 652, 654). Mr. Bandera noted no antalgic gait or altered postures in Mr. Kelly's right ankle but opined that he would benefit from an ankle stabilizer (R. 655).

In September and October 2009, Dr. Matouk stated that Mr. Kelly could return to work as recommended in the FCE, wearing an ankle stabilizer and supportive boots (R. 386, 345-48). However, Dr. Matouk added the restrictions that Mr. Kelly should be able to sit frequently, elevate his right leg and/or apply an ice pack as needed for pain, take pain medications as needed (but no narcotics at the work site), and avoid climbing and walking on uneven surfaces or slopes (R. 346, 388).

On February 3, 2010, Mahesh Shah, M.D., conducted an internal medicine consultative examination of Mr. Kelly for the Bureau of Disability Determination Services ("DDS") (R. 611). At the examination, Dr. Shah noted that Mr. Kelly walked with a limp on the right side and had discomfort while heel and toe walking, but he was able to bear his own weight, did not use an assistive device for ambulation, and was able to get on and off the examining table and go from a sitting to supine position and back again without problems (R. 612-13). Dr. Shah reported that Mr. Kelly had marked tenderness in the right ankle and mild swelling, limited ankle range of motion, and ankle rotations were painful (R. 613-14). Dr. ...

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