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McKay v. Colvin

United States District Court, N.D. Illinois

October 31, 2016

MICHAEL McKAY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         Plaintiff Michael McKay appeals the decision of the Commissioner of the Social Security Administration (“Commissioner”) denying him Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”). For the reasons discussed more fully below, we remand this matter for further proceedings consistent with this opinion. Plaintiff's motion for summary judgment is granted [dkt. 9].



         Plaintiff filed an application for DIB and Supplemental Security Income on October 5, 2009, alleging he became disabled on August 29, 2009, as result of injuries he suffered in a motor vehicle crash. R. 167-169, 320. Plaintiff went through the administrative process, which resulted in an administrative law judge (“ALJ”) denying his application on May 18, 2011, following an administrative hearing. The ALJ determined that, despite suffering from a number of severe impairments, the plaintiff could still perform a very limited range of sedentary work, which allowed him to perform jobs like bench assembler, machine tender, and inspector. R. 24, 28. To reach that conclusion, the ALJ relied on the testimony of the vocational expert from the administrative hearing. After the Appeals Council denied plaintiff's request for review, plaintiff filed suit in the Northern District of Illinois, seeking review of the decision under 42 U.S.C. §405(g).

         On August 21, 2014, the court reversed the ALJ's decision and remanded the case to the Commissioner for further proceedings. McKay v. Colvin, No. 13 C 1535, 2014 WL 4186824 (N.D. Ill. Aug. 21, 2014). The court found that the vocational expert's testimony did not establish that plaintiff could perform jobs like bench assembler despite plaintiff's moderate restriction on his ability to maintain pace. McKay, 2014 WL 4186824, *3-4. The ALJ had found that the plaintiff had moderate restrictions on his concentration, persistence, and pace, but neither the ALJ nor the vocational expert clarified whether a person with such a restriction would be able to maintain the pace necessary to perform the jobs of bench assembler, machine tender, or inspector. McKay, 2014 WL 4186824, *3-4. The court was also troubled by the fact that the vocational expert had testified that a person could not be off task 30 percent of the time in those jobs, but hadn't said whether a moderate restriction would constitute being off task 30 percent of the time. McKay, 2014 WL 4186824, *3-4. On remand, the Appeals Council returned the case to the ALJ for further proceedings consistent with the court's order. R. 1149-1152.

         On March 30, 2015, the ALJ convened another administrative hearing. R. 1018-1050. This time, when posing a hypothetical to the vocational expert, the ALJ asked her to bear in mind that, because of a moderate restriction in concentration persistence, and pace, a person could not do assembly line work; that he had to be able to spread his production throughout the day and not maintain the same pace hour after hour. R. 1044. The vocational expert said that such a person could still do work as a circuit board assembler, document preparer, or address clerk. R. 1043-1044. These jobs would allow a person to be off task up to 15 percent of the time. R. 1044.

         Following the hearing, the ALJ once again determined that plaintiff was capable of doing a very limited range of sedentary work. Again, relying on the vocational expert's testimony, the ALJ concluded that this allowed the plaintiff to perform jobs like circuit board assembler, document preparer, or address clerk. But, the ALJ further concluded that, under the the Medical Vocational Guidelines (“Grid”), once plaintiff turned 50 years old on January 6, 2015, he was disabled. R. 1008. That entitled plaintiff to SSI as of that date, but not to DIB, as plaintiff's insured status expired on September 30, 2014. R. 1006, 1008.


         The plaintiff's odyssey through the Social Security Administration bureaucracy and his medical treatment following a motor vehicle accident have combined to produce a two-volume, 1700-page record. The bureaucratic portion alone amounts just over half of that, calling to mind Judge Posner's observation that many are understandably reluctant to undergo the arduous application process until driven to do so by desperation. Cole v. Colvin, - F.3d -, -, 2016 WL 3997246, at *3 (7th Cir. July 26, 2016). As this is now the plaintiff's second trip to federal court to challenge the denial of his application for disability insurance benefits, the summary of the medical record will be kept as brief as possible.

         Before August 29, 2009, the plaintiff worked as an electrician for over 20 years. R. 1281-1282, 1321-1326. But, then he drove his vehicle into a utility pole at a high rate of speed. R. 320. He suffered traumatic brain injury, and fractures of the left femur, multiple ribs, jaw, sternum, and hip. R. 327, 402. His brain injury left him with significant cognitive impairments; he needed a 24-hour-a-day attendant and was incapable of making his own medical or legal decisions. R. 400. He had to be placed on a ventilator and fed through a tube. R. 327, 369, 375, 400. Surgical repairs were done to his jaw, pelvis, and left femur. R. 398, 454. He was comatose for about a month following surgery. R. 715.

         After about a month-long hospital stay, plaintiff was transferred to the Rehabilitation Institute of Chicago. R. 476, 497. He was alert and oriented, but confused as to whom he lived with. R. 476. Over the course of his stay, he underwent therapy sessions to help him adjust emotionally to his disability. R. 491-495. By the end of his time there, he had improved greatly, but continued to exhibit significant cognitive impairment, especially in terms of memory problems. R. 485. He would require continuous supervision, and moderate assistance getting around, but he would no longer need a feeding tube. R. 485, 502-503. He was transferred to the HCR ManorCare facility on October 30, 2009. R. 508.

         After another month-long stay, plaintiff was discharged to continue home physical and occupational therapy. R. 509. He still exhibited memory loss, remaining forgetful and confused. R. 517. His judgment and insight were impaired. R. 518. He suffered from weakness, joint pain, leg cramps, and difficulty breathing. R. 517. When physical therapy sessions began, plaintiff complained of pain he rated at 8 or 9 on a 10-point scale after sitting for an hour and was confined to a wheelchair. R. 659. In December 2009, after a month of thrice-weekly sessions, plaintiff could walk with a walker under supervision; his weight bearing was reduced to 50%. R. 657. In January 2010, plaintiff was able to use a cane for a short distance under supervision, was at 85% of normal weight bearing, and he rated his pain at 5/10. R. 655. By April 2010, plaintiff rated his pain at 2-3/10 after sitting for an hour, he could walk for 15 minutes with a cane, and stand at a counter for 20 minutes. R. 647.

         At that time, plaintiff's orthopedic surgeon, Dr. Troy, who had reconstructed his hip, reported that plaintiff could not return to work until further notice. R. 660, 733. Shortly thereafter, in May 2010, Dr. Troy had to remove a hypertrophic bone spur and hardware from plaintiff's left leg. R. 728. In June 2010, Dr. Troy reported that plaintiff continued to improve, but explained that it would “be quite a while until he will be able to go back to work as he has also sustained head trauma during the accident and he has resulting problems with his leg function thereafter.” R. 717. Improvement continued through September 2010, but, over a year after plaintiff's accident, Dr. Troy reported that plaintiff would still need another 3 to 5 months of physical therapy. R. 715. Plaintiff's gait was slow due to his brain injury. R. 715. The doctor noted that plaintiff was working hard to get back to work, but that he was “most likely headed for long-term disability.” R. 715.

         Plaintiff was discharged from physical therapy in November 2010; he had “maxed out.” R. 981. In December of 2010, Dr. Troy reported that plaintiff was still having significant problems with his left leg, suffering pain in his knee and hip. R. 980. He had to take anti-inflammatory drugs and narcotic pain relievers on a regular basis. R. 980. Dr. Troy felt he was a good candidate for disability, as he was unable to sit or stand for longer than 30 or 45 minutes. R. 980.

         Not surprisingly, plaintiff's difficulties impacted his psychological well-being. He began seeing a psychiatrist, Dr. Lelio, in April 2010, and a therapist, Ms. Dillberg, in December 2010. R. 788, 972. At their initial session, plaintiff told Dr. Lelio that he worried he would never be able to work again. R. 976. Dr. Lelio diagnosed plaintiff with generalized anxiety disorder and prescribed Ambien and Xanax. R. 976. In May, plaintiff told Dr. Lelio that the medication was helpful but he was still a bit depressed about his situation. R. 977. By November, plaintiff was still anxious and depressed, but didn't want to add an anti-depressant to his medication regimen. R. 979. In March 2011, Dr. Lelio reported that plaintiff's loss of self esteem affected his daily activities and his condition impacted his ability to sustain concentration and attention resulting in failure to complete tasks. R. 972-973. In January 2011, Ms. Dillberg reported plaintiff ...

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