United States District Court, N.D. Illinois
E. COX, U.S. MAGISTRATE JUDGE.
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].
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.
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.
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.
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 MEDICAL RECORD
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.
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.
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.
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.
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.
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.
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 ...