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Payne v. Colvin

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

October 19, 2016

CARYLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         Napoleon Payne brought this action for judicial review of the Commissioner's denial of his application for Supplemental Security Income and Disability Insurance Benefits.[1] Payne claims that he suffers from chronic pain in his wrists, leaving him unable to work and therefore eligible for disability benefits under the Social Security Act, 42 U.S.C. § 423. R. 1, Compl.[2] The issue in this case is whether the Administrative Law Judge correctly established the onset date of Payne's disability. Payne avers that he became disabled on June 1, 2006, but the Administrative Law Judge found that Payne did not become disabled until April 26, 2011. So Payne filed this motion to reverse and remand the Administrative Law Judge's decision, arguing that the Administrative Law Judge failed to follow the Commissioner's regulations and rulings, thereby committing an error of law. For the reasons set forth below, Payne's motion is granted and the matter is remanded for further proceedings.

         I. Background

         Payne first applied for disability benefits on January 3, 2009. R. 10, Administrative Record (“AR”) at 33. In his application, he alleged a disability onset date of June 1, 2006.[3] Id. at 33, 176, 187. Payne's application initially was denied on January 26, 2010, and denied again on reconsideration on May 17, 2010. Id. at 33. He then requested a hearing in front of an Administrative Law Judge, which was held on March 8, 2012. Id. Following the hearing, the Administrative Law Judge issued an opinion establishing Payne's disability onset date as April 26, 2011 and granting Payne's application for benefits after that date, but denying his request for benefits before that date.[4] Id. at 33-40. The Appeals Council declined Payne's request for review on July 31, 2013, rendering the Administrative Law Judge's ruling the final decision of the Commissioner. Id. at 1; see Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009). Payne filed his Complaint with this Court in February 2014, seeking review of the Administrative Law Judge's decision. See Compl.

         A. Factual Background

         The Administrative Record supplies the factual background of this case. At the time of his hearing in front of the Administrative Law Judge, Payne was 50 years old and had some high school education.[5] AR at 71, 100, 176, 227. From 1986 to 1987, Payne worked as a bus driver.[6] Id. at 223. After that, Payne started working as a cable television installer in 1989, a job that frequently required him to climb ladders and lift 25-pound weights. Id. at 242. In 1993, while on the job, Payne fell from a ladder, cracking his skull and breaking both of his arms. Id. at 247. He was hospitalized for several weeks and underwent reconstructive surgery on both wrists. Id. at 305. Payne continued to work as a cable installer until 1999, [7] and also started working as a delivery truck driver in 1997.[8] Id. at 223. His duties as a truck driver included restocking food products inside a trailer and unloading the products off of the truck. Id. at 224. Sometime in 2005 or 2006, Payne's employer “let [him] go because [he] couldn't perform the duties” anymore. Id. at 71-72. Payne has been unemployed since then.

         Payne claims that he became disabled on June 1, 2006 because, as of that date, the pain and impairment caused by the bilateral arthrodesis[9] of his wrists rendered him unable to work. AR at 35. But because of the scarcity of his medical records before 2011, there is no documentation of exactly what medical impairments he had on this date.[10] Payne does provide notes from a visit to Dr. Antony George in September 2009.[11] Id. at 297-302. Although the purpose of the visit was to address Payne's complaints of headache-related pain, Dr. George noted that Payne also suffered from “chronic wrist pain.” Id. at 300. The Administrative Record also states that Payne was treated at Oak Park Medical in January and March 2010, but the Record does not contain treatment notes from either of those visits. Id. at 256. In the Record, Payne claims that he was treated by Drs. Hegde and Vest from 2010 to 2012 and Dr. Sarpy from 2011 to 2012. Id. at 283.

         In November 2009, Payne underwent a consultative examination with Dr. Anand Lal in connection with his application for disability benefits. AR at 305-14. In his post-examination report, Dr. Lal stated that Payne had “atrophy of the wrist muscles, ” limitations in flexion and extension in both wrists, and moderate to severe difficulty gripping and squeezing. Id. at 309, 312. At the examination, Payne also reported headaches and poor vision, which he was doing little to treat due to his inability to afford glasses or pain medication. Id. at 305. Dr. Lal recorded that Payne had stuttered for most of his life, but his speech at the time of the examination was normal. Id. at 313. Dr. Lal concluded that Payne's condition consisted of: restriction in the range of motion of both wrists; partial atrophy and chronic pain in both wrists; impaired vision; post-traumatic cephalalgia[12]; history of depression; peripheral arterial disease; stuttering; and history of headaches. Id. at 314.

         Payne also underwent a psychiatric examination as part of his claim for disability benefits. He saw Dr. Ana Gil in December 2009. AR at 315-19. Dr. Gil concluded that Payne had moderately severe depressive disorder and noted that he stuttered when he spoke. Id. at 318-19.

         State agency physician Dr. Young-ja Kim completed a Physical Residual Function Capacity Assessment of Payne in January 2010. AR at 334-41. The assessment noted that Payne could frequently lift and/or carry ten pounds; occasionally lift and/or carry twenty pounds; sit, stand, or walk about six hours in an eight-hour workday; and push or pull without limitation. Id. at 335. According to Dr. Kim's assessment, Payne could occasionally climb stairs, stoop, kneel, crouch crawl, and balance, but could never climb ladders, ropes, or scaffolds. Id. at 336. He also had difficulty with gross and fine manipulation. Id. at 337. Finally, Dr. Kim recorded that Payne had limited ability to see faraway objects but did not have communicative limitations. Id. at 337-38.

         In April 2011, Payne was found to have an “acute fracture in the distal left ulna” (that is, a fracture in his forearm, closer to the wrist than the elbow). AR at 346. When Payne visited Dr. Dinraj Hegde in May 2011, the doctor recorded that Payne had a fractured forearm and chronic pain syndrome but the pain was not affecting Payne's activity level. Id. at 371-72. Payne had follow-up appointments in May and June 2011 for his fracture. Id. at 345-46.

         Payne's next examination was with Dr. Vest in October 2011. AR at 363-68. His chief complaint was “pain in both legs and hands, ” which he rated an 8 out of 10. AR at 363. After the examination, Dr. Vest completed a Headache and Chronic Pain Residual Functional Capacity Questionnaire. Id. at 409-20. The questionnaire stated that Payne had headaches roughly three times per week, with each headache lasting 30 to 45 minutes. Id. at 409. In addition, Payne suffered from constant wrist pain that affected his ability to concentrate. Id. at 413. The questionnaire further noted that, although Payne was physically capable of working low-stress jobs, he could only sit, stand, or walk for 45 minutes at a time before he would need to change position. Id. at 414. Even then, Payne would need a ten-minute unscheduled break each hour, could never carry any object more than ten pounds, and could only rarely carry objects less than ten pounds. Id. at 415-16. Plus he would have to take three unscheduled 30-minute breaks each week and would likely miss work at least four times per month. Id. at 411-12.

         In making his decision, the Administrative Law Judge relied on statements and testimony from Payne and two experts-Dr. Ashok Jilhewar, the medical expert, and Glee Ann Kehr, the vocational expert-in addition to the medical records described above. In the Administrative Record and at the hearing, Payne described his physical condition and its effects on his daily life. He stated that, starting in 2006, he began having problems with pain and arthritis. AR at 247. He could stand and walk, but had to sit down again after half an hour. Id. at 80. Payne could lift only a couple of pounds-he could not lift a gallon of milk or a case of soda pop-and, even then, frequently dropped things. Id. at 80, 88. These physical limitations impacted his ability to go about his day-to-day life. Arthritis prevented him from preparing food or doing household chores, and impeded his ability to dress, bathe, and feed himself. Id. at 231, 233-34. Poor eyesight kept him from reading. Id. at 78-79. Payne reported that his day consisted of brushing his teeth, washing his face, watching television until his “eyes [went] blurry, ” and laying down. Id. at 229. In order to manage his pain, Payne took a number of medications, including Motrin, Tylonel, Baclofen, Tramadol, Risperdone, Diphenhydramine, Ibuprofen, and Wellbutrin. Id. at 226, 268, 284, 423-25, 361.

         Dr. Jilhewar, the medical expert, testified at the March 2012 hearing. He consulted Payne's medical record, but did not examine Payne himself. AR at 51. Dr. Jilhewar noted that the first documentation of a severe impairment in the record was the report from Dr. Lal's consultative examination in November 2009. Id. at 52. Dr. Jilhewar summarized Payne's condition as “[a]rthrodesis of both wrists, sometime in 1993, by a self-report, resulting in significant degrees in a range of movement of both wrists, and degrees in grip strength … and absence of specific management of the problem in the medical records.” Id. at 54. Although the doctor noted that Payne had complained of headaches since 1993, Dr. Jilhewar testified that the medical record did not contain any specific information on the management of headaches, with the exception of an Emergency Room visit in September 2011 that resulted in a normal CT scan. Id. at 55. Nor did the medical record contain any information on the management of chronic pain, pain consultation, or the prescription of narcotics on a consistent basis, thus precluding Dr. Jilhewar from testifying that Payne suffered from chronic pain. Id. at 57. Dr. Jilhewar concluded that Payne could perform light physical work, but would only be able to handle objects occasionally. Id. at 59.

         Kehr, the vocational expert, also testified at the hearing. Kehr classified Payne's previous job as a truck driver as semi-skilled work with moderate physical demand. AR at 90-97. The Administrative Law Judge then posed three hypotheticals, which required Kehr to identify the types of jobs that a hypothetical person with the limitations described by the Administrative Law Judge would be able to perform. Id. In the first hypothetical, the Administrative Law Judge asked about the jobs available to a person of Payne's age, education, and work experience, with the following abilities and limitations: able to lift up to twenty pounds occasionally; able to lift or carry up to ten pounds frequently; able to stand or walk six hours in an eight-hour workday; able to sit eight hours in an eight-hour workday; able to take normal breaks; unable to climb ladders, ropes, or scaffolds; unable to crawl, but able to crouch and kneel; able to perform fine manipulations frequently but gross manipulations only infrequently; and unable to work in a profession requiring frequent verbal communications. Id. at 91-92. Kehr responded that such a person would not be able to work as a truck driver (which was Payne's previous job), nor could he work in any other position, because there were no occupations that did not require either frequent verbal communication or frequent gross manipulation. Id. at 92.

         In the second hypothetical, the Administrative Law Judge asked Kehr to assume the same facts and limitations as the first hypothetical, but strike the limitation on verbal communication. AR at 92-93. Kehr testified a person with such traits could work as an usher, a counter clerk, or as a rental clerk. Id. at 93. All three occupations were available in the Chicago metropolitan area and were classified as light and unskilled work. Id.

         Finally, the Administrative Law Judge asked Kehr to assume the same facts and limitations of the second hypothetical, except that the person's work would be limited to simple, routine, repetitive tasks with only occasional interaction with the public and co-workers. AR at 95. Kehr testified that such a person would be precluded from working. Id.

         B. The Disability Determination Process

         The Social Security Act defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The regulations prescribe a five-part sequential test for determining whether a claimant is disabled. See 20 C.F.R. § 404.1520. The test requires the Commissioner to consider: (1) whether the claimant has performed any substantially gainful activity during the period for which he claims disability; (2) if he has not performed any substantial gainful activity, whether the claimant has a severe impairment or combination of impairments; (3) if the claimant has a severe impairment, whether the claimant's impairment meets or equals any impairment listed in the regulations as being so severe and of such duration as to preclude substantial gainful activity; (4) if the impairment does not meet or equal a listed impairment, whether the claimant retains the residual functional capacity to perform his past relevant work; and (5) if the claimant cannot perform his past relevant work, whether he is able to perform any other work existing in significant numbers in the national economy. Id.; Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001).

         If the answer to steps one or two is “no”-that is, the claimant performed substantially gainful activity and/or lacks a severe impairment-the Commissioner will reach a finding of “not disabled.” See Zurawski, 245 F.3d at 886. Otherwise, the Commissioner moves on to step three. If step three is answered in the affirmative, and the claimant's impairment is listed as one that precludes substantial gainful activity per se, then the claimant is found to be disabled. Id. If not, the Commissioner must determine the claimant's residual functional capacity-that is, the sort of work that the claimant can still perform given his impairment(s)-and assess whether that capacity allows the claimant to perform either his past work (step four) or any other work existing in significant numbers in the national economy (step five). Id. If it does not, then the claimant is disabled. Id. The claimant bears the burden of proof at steps one through four. ...

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