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Reyes v. Colvin

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

October 25, 2016

RUBEN D. REYES, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Cole, Magistrate Judge.

         The plaintiff, Ruben D. Reyes, seeks review of the final decision of the Commissioner of the Social Security Administration denying his application for Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. § 423(d)(2). Mr. Reyes asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision in his motion for summary judgment.

         Introduction

         I.

         Procedural History

         Mr. Reyes applied for Disability Insurance Benefits on April 9, 2013, alleging that he had been disabled since March 22, 2013, when he was shot in the right shoulder by an unknown shooter (R. 55-56). His claim was denied initially and on reconsideration (R. 55, 63). Mr. Reyes filed a written request for a hearing on February 3, 2014 (R. 86).

         An ALJ convened a hearing on June 27, 2014, at which Mr. Reyes waived his right to representation by counsel (R. 39, 41-42). After some brief questioning, the ALJ continued the hearing to request further medical records. (R. 52-53). At the second hearing on April 7, 2015, Mr. Reyes appeared and testified and was represented by counsel (R. 1090). Dr. Ashok G. Jilhewar, MD, testified as the medical expert, Dr. Allen Heinemann, PhD, testified as the psychological expert, and Lee O. Knutson testified as the Vocational Expert (“VE”) (R. 1092).

         On July 15, 2015, the ALJ found that Mr. Reyes was not disabled and denied his application for Disability Insurance Benefits because, although Mr. Reyes could no longer perform his past medium work, he could still perform a limited range of light work (R. 9-38). The ALJ's decision became the Commissioner's final decision on September 4, 2015, when the Appeals Council denied Mr. Reyes' request for review (R. 1-6). See 20 C.F.R. §§ 404.955. Mr. Reyes appealed the decision to the United States District Court for the Northern District of Illinois under 42 U.S.C. § 405(g), claiming that the ALJ improperly evaluated his credibility and rejected the opinions of his treating and examining doctors.

         II.

         The Record Evidence

         A.

         Vocational Evidence

         Mr. Reyes was born on June 6, 1975, making him 37 years old when he filed his application (R. 30). He has at least a high school equivalent education and can communicate in English (R. 30). According to his Work History Report, Mr. Reyes was a tow truck driver for Shell Gas Station from July 2002 to May 2003 (R. 169). He was then a self-employed mechanic from 2006 to 2007 (R. 169). Finally, he was an intern at Lygase from July 2009 to December 2012 (R. 169). As a tow truck driver, Mr. Reyes noted that he had to lift and carry wheel-lift equipment, ranging from about twenty to twenty-five pounds (R. 170). As a mechanic he replaced car parts, lifting anywhere from twenty to fifty pounds (R. 171). Finally, as an intern for Lygase he lifted and set-up equipment, lifting less than ten pounds frequently and fifty pounds occasionally (R. 172).

         B.

         Medical Evidence

         The record is 1157 pages long and in no particular order. It is not organized chronologically, and multiple pages of the record are duplicated throughout.

         1.

         Physical Impairments

         On March 22, 2013, Mr. Reyes was shot in his dominant, right shoulder while riding in the backseat of a car (R. 275). As a result of the accident, Mr. Reyes claims to suffer from both physical and mental impairments. Following the accident, the fire department took Mr. Reyes to the emergency department at Advocate Lutheran General Hospital (R. 261). He was seen immediately upon arrival (R. 261, 263, 264). He complained of right shoulder pain (R. 264). The radiology was unremarkable except for the bullet, and all of his vitals were stable (R. 266, 264). The doctor also found marijuana in his system (R. 296). He was discharged the same day, with no follow-up instructions (R. 238).

         On April 9, 2013, Mr. Reyes returned to Advocate Lutheran General Hospital, complaining of pain in his right shoulder due to a fall (R. 236). Mr. Reyes' grip strength was normal, and he had normal strength and range of motion in his right wrist and hand, normal range of motion in his right elbow with pain radiating to his right upper arm and shoulder, and minimal range of motion in his right shoulder due to pain (R. 237). Mr. Reyes cried from pain during this exam (R. 237). The ultimate diagnosis was contusion of the upper extremity (R. 237).

         On June 24, 2013, the Bureau of Disability Determination Services arranged a Consultative Examination for Mr. Reyes with Dr. Roopa Karri (R. 326). Dr. Karri spent forty- two minutes with Mr. Reyes, reviewing his records and information (R. 325). Dr. Karri found that his grip strength was 3/5 in both hands, and that he had moderate difficulty squeezing the blood pressure pump with his right hand (R. 327). His strength was 4/5 in his right upper limb (R. 327). However, he could button, zip, tie shoelaces, make fists, and oppose fingers (R. 327). During this examination, he could walk fifty feet without support (R. 327). Dr. Karri reported no signs of depression, agitation, irritability, or anxiety (R. 327).

         On September 16, 2013, Mr. Reyes returned to Advocate Lutheran General Hospital, complaining of hand pain and numbness (R. 377). At this time, doctors attempted to remove the bullet from Mr. Reyes' shoulder but were unsuccessful because the bullet was located so close to nerve cells that a neurosurgeon would have to remove it (R. 327).

         Mr. Reyes began seeing Dr. Patel, his primary care doctor, on November 14, 2013 (R. 394). At this time, Dr. Patel diagnosed Mr. Reyes with anxiety and shoulder pain (R. 405). Mr. Reyes continued to see Dr. Patel from November 2013 through May 2015 and repeatedly complained of pain to his right shoulder (R. 404, 414-415, 422, 429, 434, 446, 951, 957, 962, 970, 973). On the whole, Mr. Reyes saw Dr. Patel monthly for two years (R. 848).

         On March 27, 2015, after two years of treating Mr. Reyes on a monthly basis, Dr. Patel completed a Physical Medical Source Statement (R. 848). He diagnosed Mr. Reyes with anxiety and chronic pain, noting that his symptoms were anxiety, insomnia, and chronic, severe right shoulder pain (R. 848). Dr. Patel opined that his physical conditions were affected by his depression and anxiety (R. 849). He concluded that in an eight-hour workday Mr. Reyes could stand and walk for less than two hours, sit for about two hours, and never lift or carry anything ten pounds or heavier (R. 850). He could only sit or stand for an hour at a time before changing positions. (R. 850). He could only rarely bend, crouch, squat, and climb ladders and could occasionally twist and climb stairs (R. 850). He had “significant limitations” in reaching, handling, and fingering (R. 850). He could use his right hand 10% of the workday, his right fingers 40% of the workday, and he could reach in front of his body 10% of the day (R. 850). He was unable reach overhead with his right arm (R. 850). Dr. Patel also estimated that Mr. Reyes would likely be “off task” 10% of the day, and that he was only capable of “low stress” work, likely missing approximately one day per month (R. 851). Dr. Patel noted that Mr. Reyes' right shoulder tests were normal (R. 851).

         On November 26, 2013, Mr. Reyes visited neurosurgeon, Dr. Shaun O'Leary, for a treatment consultation (R. 510). Dr. O'Leary reported that Mr. Reyes had some mild weakness and pain in his right arm (R. 511). Dr. O'Leary found that Mr. Reyes could move all of his extremities with 5/5 strength except the right upper extremity which was limited by pain and only had 4 strength (R. 512). Dr. O'Leary suggested the possibility that Mr. Reyes suffered from Complex Regional Pain Syndrome (CRPS), which could require a spinal cord stimulator to treat the pain (R. 512). Dr. O'Leary also discussed the possibility of another surgery to remove the bullet from Mr. Reyes' shoulder, warning him that the pain might continue after the surgery (R. 512). In the pre-operative report Dr. Seitz, a plastic surgeon who assisted Dr. O'Leary with the surgery, admitted that removing the bullet could worsen Mr. Reyes' pain (R. 555).

         On May 29, 2014, Dr. Seitz and Dr. O'Leary removed the bullet (R. 555, 559). After the surgery, Mr. Reyes continued to complain to Dr. Patel of shoulder pain (R. 404, 414-15, 422, 429, 434, 446, 951, 957, 962, 970, 973).

         On September 30, 2014, Mr. Reyes attended a physical therapy evaluation at Presence Holy Family (R. 1023). He appeared to have decreased shoulder range of motion, decreased strength, and pain in his right shoulder (R. 1025). Mr. Reyes was supposed to begin physical therapy multiple times per week, but there is no record of additional physical therapy sessions (R. 1028-29).

         Mr. Reyes met with an orthopedic surgeon, Dr. Nicholas Frisch, on February 16, 2015, complaining of constant, significant pain radiating from his shoulder to his elbow (R. 852, 854). He also reported tingling in his right shoulder area (R. 854). At this time both the X-Rays and the range of motion tests were mostly normal (R. 854). Dr. Frisch speculated that much of Mr. Reyes' pain could have come from trauma to his trapezius muscle during his first unsuccessful surgery (R. 855). He also stated that he was “not extremely optimistic” that further surgical intervention would significantly improve Mr. Reyes' symptoms (R. 855).

         2.

         Mental Impairments

         On October 22, 2013, Mr. Reyes returned to the emergency department of Advocate Lutheran General Hospital, complaining of depression and suicidal thoughts (R. 626). He was diagnosed with anxiety and chronic shoulder pain (R. 626). During his psychological assessment conducted on October 23, 2013, Mr. Reyes' heart was pounding heart, and he experienced chest tightness, and suffered from the feeling of impending doom (R. 837). The report also stated that he was hyper-vigilant and hesitant to go to sleep at night (R. 837). He reported that he slept poorly and frequently woke up during the night due to nightmares about the shooting (R. 837). He was also noted to have exaggerated startle response (R. 837). He was diagnosed with generalized anxiety disorder and post-traumatic stress disorder (PTSD) (R. 646).

         On October 23, 2013, Mr. Reyes requested referrals for outpatient therapists because he had just recently applied for CountyCare Insurance (R. 645). He was directed to ask Advocate Lutheran General Hospital for a referral (R. 645).

         On November 27, 2013, the Social Security Administration arranged for Mr. Reyes to have a psychological consultative examination with Dr. Norton B. Knopf (R. 384). Mr. Knopf spent a total of 1.5 hours with Mr. Reyes before writing his report (R. 384). During their time together, Mr. Reyes complained of major anxiety and the existence of panic attacks (R. 385). He did not cook or do chores and required help from his family to conduct activities of daily living (R. 387). He also reported experiencing trouble sleeping, seeing dark shadows, and hearing sharp noises like gunshots (R. 386-87). Finally, Mr. Reyes explained that he was trying to see a psychiatrist but kept getting denied for insurance reasons (R. 387).

         Dr. Knopf observed overt signs of distress during the interview, including tearfulness as Mr. Reyes described his lack of returned calls from hospitals due to his medical insurance situation (R. 385). He said that Mr. Reyes seemed scared and nervous, and reported daily bouts of anxiety, although he did not exhibit any signs of anxiety during the interview itself (R. 385-86). Dr. Knopf noted that there were indications of the presence of delusions, and Mr. Reyes admitted to having compulsions and obsessive thoughts (R. 386). Dr. Knopf concluded that Mr. Reyes was reliable during the interview and seemed trustworthy (R. 388). Dr. Knopf's diagnostic impressions were that Mr. Reyes suffered from generalized anxiety disorder, major depressive disorder, PTSD, and moderate cannabis use disorder (R. 389).

         From February 25, 2015 to March 31, 2015, Mr. Reyes had weekly psychological assessments with Alyssa Naimon, a clinical intern at Presence St. Mary's (R. 859). She observed that he had a depressed mood, flat affect, and hypomanic speech (R. 865). He reported frequent thoughts of suicide, lack of friends, difficulty leaving the house, difficulty falling asleep, observance of shadows resembling the reaper, the frequent occurrence of angry outbursts at family members, and hearing gunshots and occasional screams (R. 865-68). He told her that he could barely remember what life was like before he was shot (R. 868). Mr. Reyes reported feeling a lot of anxiety when he went to the emergency room in October 2013 because the waiting area was crowded with what he believed to be potentially dangerous people (R. 866). During a few of his visits Mr. Reyes reported that he was too scared to attend a wedding or take his son to the toy store for his birthday (R. 928, 1039).

         On April 28, 2015, Dr. Ahmadi, a psychiatrist at Presence St. Mary's hospital, completed a Mental Medical Source Statement for Mr. Reyes (R. 1040). He diagnosed Mr. Reyes with PTSD, bipolar disorder, and related disorder due to a medical condition (R. 1040). He reported findings of motor agitation with sad/irritable mood, constricted affect with increased intensity, slow speech, hopelessness, helplessness, anhedonia, circumstantial thought process, and a cognitive deficit on attention (R. 1040). He concluded that Mr. Reyes was not mentally fit to work, but that he had a high chance of recovery and reduced symptoms with intense psychotherapy and medical management (R. 1040). He reported that Mr. Reyes had no ability to carry out short and simple instructions, maintain attention for two-hour segments, maintain regular attendance and be punctual, complete a normal workday or workweek without interruptions from psychologically based symptoms, get along with co-workers without distracting them, respond appropriately to changes in a routine work setting, or deal with normal work stress (R. 1042). He expected that Mr. Reyes would be absent from work more than four days per month (R. 1044).

         C.

         The Administrative Hearing Testimony

         1.

         Mr. Reyes' Testimony

         On April 7, 2015, Mr. Reyes had his second hearing with the ALJ (R. 1090). Mr. Reyes testified that he was living with his mother and his grandmother in his grandmother's home[1] (R. 1119). Mr. Reyes complained of both physical and mental impairments (R. 1096-128). He reported that he had been in constant pain and had problems with his arm even when he was sitting down, requiring him to sit a certain way to avoid pain (R. 1108, 1127). He was able to write for awhile, but then his arm would begin to hurt (R. 1108). He was able to dress, feed, and bathe himself, but he was still unable to assist his grandmother with household chores like cooking, cleaning, and laundry[2] (R. 1119). Picking up dishes and scrubbing pots, he reported, hurt his shoulder (R. 1122). Before his mother arrived to help his grandmother, he testified that he mostly only made sure that his grandmother took her medicine and looked after her (R. 1119). On occasion he accompanied her to the grocery store, but when he did he frequently felt like he was having a panic attack (R. 1119).

         To cope with the pain, Mr. Reyes went through roughly a bottle of Toradol every month and occasionally took hot baths (R. 1113, 1125). He sometimes received medications ...


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