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Smith v. Colvin

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

January 23, 2015

LESTER SMITH, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

For Lester Smith, Plaintiff: Deborah Susan Spector, LEAD ATTORNEY, Joseph Stephen Sellers, Spector & Lenz, P.C., Chicago, IL.

For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: AUSA-SSA, Donald R. Lorenzen, LEAD ATTORNEY, United States Attorney's Office (NDIL), Chicago, IL.


SIDNEY I. SCHENKIER, United States Magistrate Judge.

Plaintiff Lester Smith seeks reversal or remand of the final decision of the Commissioner of Social Security (" Commissioner") denying his applications for disability insurance benefits (" DIB"), and Supplemental Security Income (" SSI") (doc. # 18). The Commissioner opposes the motion and seeks affirmance of the decision denying benefits (doc. # 23). For the following reasons, we grant Mr. Smith's motion and remand the case for further consideration.


We begin with the procedural history of this-case. Mr. Smith applied for DIB and SSI on January 27, 2011 alleging asthma, right ankle injury, depression, and a lumbar strain as his various disabilities (R. 213). Mr. Smith originally set July 19, 2006 as his alleged onset date, but he later stated at the hearing before the Administrative Law Judge (" ALJ") that he wanted to amend this date to October 24, 2010--his 50th birthday (R. 66-67). The application was denied initially and upon reconsideration (R. 68-71). Thereafter, a hearing was held before ALJ David Skidmore on April 4, 2012 (R. 37-67). The ALJ issued an unfavorable decision on April 26, 2012, finding that Mr. Smith is not disabled (R. 18-30). The Appeals Council then denied Mr. Smith'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 proceed with a summary of the administrative record. Part A briefly sets forth Mr. Smith's background, followed by his physical and mental health medical record in Part B. Part C discusses the testimony provided at the hearing before the ALJ, and Part D sets forth the ALJ's written opinion.


Mr. Smith was born on October 24, 1960 (R. 42). He is a divorced father of four and currently lives with his mother and sister (R. 43). He did not graduate from high school (R. 267). Between 1990 and 2008, he worked numerous unskilled jobs that included work as a laborer, mason, bicycle messenger, hotel porter, butcher, and janitor (R. 197, 214, 219). Mr. Smith has not engaged in substantial gainful activity ('" SGA") since 2006 as the jobs he held after this date failed to yield earnings sufficient to meet the SGA threshold (R. 20).


The objective medical record, which is very sparse, begins in August 2006 when Mr. Smith broke his ankle during a fight. Medical records from Stroger Hospital indicate that Mr. Smith underwent open reduction internal fixation surgery of his right tibia and distal fibula on August 7, 2006 (R. 293). At a follow-up doctor's appointment on August 24, 2006, the examining doctor observed that Mr. Smith's leg was healing, with no swelling of his right leg or ankle, and an " active FROM [full range of motion]" (Id.). The doctor's plan was to " remove staples and sutures" and have Mr. Smith return in four weeks (Id.). An X-ray on September 21, 2006 showed no " displacement of [the] fracture" and the " screws [and] plates intact" (R. 294). The attending physician, Dr. James Kapotas, noted that Mr. Smith's incision site was well-healed, although Mr. Smith complained of painful range of motion (Id.). Dr. Kapotas referred Mr. Smith to physical therapy and told him to return in three weeks (Id.).

During a physical therapy consultation at Stroger Hospital on October 23, 2006, medical staff placed no restrictions on Mr. Smith's ability to bear weight on his right leg (R. 295). However, at a follow-up physical therapy session on December 1, 2006, Mr. Smith complained of pain on a scale of seven out of ten, an inability to do his therapy exercises, and continued use of crutches and/or a walker (R. 296). The physical therapists working with Mr. Smith noted that he had the potential for " good" rehabilitation, provided he complied with therapy, but that, to date, he had not been compliant (Id.). They stressed the need for Mr. Smith to continue with his home exercise program (Id.).

On December 7, 2006, Mr. Smith was seen for a follow-up by Dr. Richard Rhim, at which point he had been " weight-bearing as tolerated with a CAM boot and two crutches'" for the previous six weeks (R. 298). This exam also showed some " minimal swelling which is expected postoperatively from this injury" (Id.). At that time, Mr. Smith also had " 'normal" foot sensation (Id.). An X-ray showed the hardware in his ankle was intact but " due to not loading this extremity for such a long period, " Mr. Smith ' j showed " radiographic evidence of osteopenia" (Id.).[2] Dr. Rhim's plan at that point was for Mr. Smith to discontinue use of the CAM boot and crutches over a period of three weeks and to follow-up in four weeks (Id.).

A substantial gap in the medical record of more than three years follows these initial reports. On February 19, 2009, Mr. Smith had an X-ray as ordered by Dr. Kapotas (R. 300). The X-ray showed " fixation right tibia and fixation plate tibia, " and noted that the findings of the X-ray were similar to those from a study, otherwise unidentified, that was performed on November 1, 2007 (Id.), The next medical record entry is nearly two years later, on January 5, 2011, when Mr. Smith was seen at Stroger Hospital for two tooth extractions (R. 276). Finally, the record contains a single medical notation from May 18, 2011, when Mr. Smith sought care at Stroger Hospital for ongoing right knee and ankle pain (R. 302).

The record also contains medical opinions from various consultative examiners. Dr. Fauzia Rana of Lake Shore Medical Clinic examined Mr. Smith on March 22, 2011 (R. 282). Mr. Smith provided Dr. Rana with a history but no medical records to review (Id.). Mr. Smith complained of lifelong asthma but stated that he had never been hospitalized for shortness of breath and had no history of emergency room visits for IV medication or breathing treatments (Id.). He complained of breathing difficulty on a daily basis, mainly on exertion and upon a change of weather (Id.). Mr. Smith also complained of intermittent pain and swelling of the right ankle since his 2006 surgery, as well as aching pain in his lower back (Id.). He stated that an X-ray taken about a year earlier showed evidence of arthritis (Id.). Mr. Smith indicated that he smokes half a pack of cigarettes a day and uses a Qvar inhaler and a Proventil inhaler (Id.).

Dr. Rana then examined Mr. Smith and noted that he is grossly obese but " has no difficulty in breathing and has no difficulty in any movement" (R. 282). The doctor noted clear lungs, with no rales, rhonchi or wheezing (R. 283). She noted that Mr. Smith walks with a limp that favors his right leg but that he uses no ambulatory aid and can walk more than 50 feet unassisted (R, 284), Mr. Smith had mild swelling in his right ankle, but Dr. Rana did not observe any warmth, redness, or tenderness (Id.). Dr. Rana observed Mr. Smith had " difficulty walking on heels and toes on the right foot" but had " no complaint of pain on movement" (Id.). Although Mr. Smith was unable to hop on one leg and had mild difficulty tandem walking, walking on toes and heels, and squatting and arising, he had no difficulty getting on or off the exam table (Id.). Dr. Rana's diagnostic impressions included " chronic obstructive and restrictive lung disease, " " post traumatic degenerative arthritis--right ankle, " and " gross obesity" (R. 284-85). Dr. Rana also noted that Mr. Smith was " able to sit, speak, and hear without difficulty" but that he has ''some difficulty in prolonged standing, walking, lifting and carrying due to right leg pain and obesity" ' (R. 285).

Dr. Ana Gil conducted a psychiatric examination on March 22, 2011 that we summarize only briefly since Mr. Smith's mental status is not at issue on appeal. Dr. Gil's report is the only psychiatric evidence in the record and indicates that Mr. Smith has no psychiatric records and no prior psychiatric treatment (R. 278-81). Mr. Smith reported to Dr. Gil that he had " some feelings of hopelessness, helplessness and anhedonia, " as well as decreased energy and motivation (R. 278). He " denied any suicidal or homicidal ideation, intent or plan, auditory, visual or tactile hallucinations or feelings that people want to hurt or want to harm him" (Id.). Mr. Smith complained of some difficulty with activities of daily living related to pain symptoms and of " feeling pretty bad and pretty hopeless" because he is not working (R. 279-80). However, during the exam Mr. Smith was cooperative with good eye contact and was alert and oriented to time, place and person, engaging, friendly, polite, and related well during the examination (R. 279). Dr. Gil diagnosed Mr. Smith with " adjustment disorder with depressed mood" (R. 281).

Mr. Smith also filled out a function report in connection with the filing of his claim (R. 244-52), Here, Mr. Smith stated that he suffers depression on account of " not having a whole body" due to osteoarthritis and his leg injury (R. 244). He indicated that he struggles to dress, bathe, use the bathroom, clean, walk, bend or stand on account of his injured leg (R. 245). He is able to help his mother, prepare quick meals, do light housework like sweeping and mopping, but often needs to sit on a stool while doing so (R. 245-47). He stated he is able to walk approximately 50 to 100 feet before he needs to rest ...

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