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Ray v. Colvin

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

November 4, 2016

GERALD RAY, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          JEFFREY COLE MAGISTRATE JUDGE

         The plaintiff, Gerald Ray, 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. Ray asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision and a motion for summary judgment.

         Introduction

         I.

         Procedural History

         Mr. Ray initially applied for Disability Insurance Benefits on May 16, 2012, alleging that he had been disabled since July 1, 2008 (R. 18). His claim was denied initially and on reconsideration (R. 80, 85). Mr. Ray filed a written request for a hearing on February 4, 2013 (R. 18, 90).

         An ALJ convened a hearing on April 9, 2014, at which Mr. Ray was not represented by counsel (R. 54). The ALJ continued the hearing to allow Mr. Ray to seek representation (R. 54). At the second hearing on July 1, 2014, Mr. Ray appeared and testified and was represented by counsel (R. 31). Julie Bose testified as the Vocational Expert (“VE”) (R. 31).

         On July 10, 2014, the ALJ found that Mr. Ray was not disabled and denied his application for Disability Insurance Benefits because of his ability to perform his past work as an accountant (R. 26). The ALJ's decision became the Commissioner's final decision on October 5, 2015, when the Appeals Council denied Mr. Ray's request for review (R.1). See 20 C.F.R. §§ 404.955. Mr. Ray 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's decision was unsupported by substantial evidence (R. 12).

         II.

         The Record Evidence

         A.

         Vocational Evidence

         Mr. Ray was born on November 21, 1953, making him 59 years old as of his alleged onset date of May 16, 2012. (R. 22, 174). He has a high school education, plus four years of college. (R. 22). According to his work history report, he worked as a liquor department clerk at a Walgreens from the fall of 1991 to the fall of 1992. (R. 179, 194). He then worked as a senior staff accountant at an accounting firm from 1998 to 2001. (R. 194). Finally, he worked as a senior staff accountant at another accounting firm from 2003 to 2006. (R. 194). As a liquor clerk at Walgreens, he used machines, tools, or equipment. (R. 197). In this role, he would walk for one hour, stand for four to six hours, climb for one hour, stoop for one hour, and not sit. (R. 197). The heaviest amount he lifted during this job was twenty pounds, and he frequently lifted ten pounds. (R. 197). As a senior staff accountant, Mr. Ray reported that he used machines, tools, equipment, and technical knowledge and skill and completed written reports. (R. 195). In a typical work day, he would walk for one hour, stand for two hours, sit for six hours, climb for two hours, stoop for one hour, kneel for two hours, crouch for one hour, crawl for one hour, handle big objects for three hours, reach for two hours, and write for four hours. (R. 195). In this role, the heaviest weight that he lifted was fifty pounds, and he frequently lifted twenty-five pounds (R. 195). When his temporary position at an accounting firm expired June 1, 2006, Mr. Ray stopped working. (R. 178).

         B.

         Medical Evidence

         On August 30, 2012, Dr. Peter Biale, MD completed an Internal Medicine Consultative Examination, as ordered by the Bureau of Disability Determination Services. (R. 262). Dr. Biale spent thirty minutes with Mr. Ray before writing his report. (R. 262). Mr. Ray complained of a disability due to diabetes and lower back problems. (R. 262). Dr. Biale observed that Mr. Ray had a rather wide-based gait. (R. 263). He noted that when Mr. Ray moved from sitting to the supine position and back up he complained of lower back pain. (R. 263). His eyesight in both his left and right eyes was 20/40. (R. 263). He had full range of motion of cervical spine, limited lumbosacral spine range of motion with flexion of forty degrees and extension of 15 degrees, right and left lateral flexion of fifteen degrees, and tenderness in the paraspinal muscles. (R.264). His motor strength 5/5 in his upper and lower extremities. (R. 264). His straight leg raise test was positive at ten degrees in the right side, and his sensory was diminished in left lower extremity. (R. 264). Dr. Biale noted full range of motion in all joints and no redness, swelling, or thickening. (R. 264). Mr. Ray could bear his own weight, and had no difficulty getting on and off the examination table. (R. 264). He did, however, have difficulty squatting. (R. 264). Regarding Mr. Ray's mental state, Dr. Biale noted that he was alert, oriented, cooperative, polite, sincere, his memory was intact, he was able to concentrate and pay attention, had good hygiene, and was dressed appropriately. (R. 265).

         Dr. Biale's clinical impressions were that Mr. Ray suffered from diabetes mellitus Type II under treatment with oral medications. (R. 265). He found Mr. Ray's glycemia to be poorly controlled. (R. 265). He also found that Mr. Ray had developed gastroparesis, which was under treatment, and suffered from diabetic neuropathy, which caused persistent pain in the lower extremities. (R. 265). He also suffered from lower back pain and sciatic pain in the right lower leg. (R. 265).

         The Radiological Examination from August 30, 2012, which was ordered by the Bureau of Disability Determination Services, revealed mild to moderate degenerative joint disease, and that osteopenia had appreciated throughout all aspects of the lumbosacral spine with some small osteophytes as well. (R. 267).

         On December 19, 2012, Dr. Charles Carlton also performed an Internal Medicine Consultative Examination for the Bureau of Disability Determination Services. (R. 269). Dr. Carlton spent thirty minutes with Mr. Ray. (R. 269). Mr. Ray told Dr. Carlton that Dr. Malik at Provident Hospital was his primary care provider and that he had no insurance or medical care. (R. 270). He lost his medical card in July 2011. (R. 270). Consequently, Mr. Ray said that he used the emergency department at Provident Hospital as primary care. (R. 270). The examination revealed full painless range of motion in all joints and some decreased range of motion at the lumbar spine. (R. 272). Mr. Ray had normal grip strength and was alert and oriented. (R. 272). However, Dr. Carlton did recommend that Mr. Ray have a consultative evaluation with a psychologist. (R. 272).

         Dr. Carlton's clinical impressions were that Mr. Ray suffered from diabetes, high blood pressure, peripheral neuropathy, reports of chronic back pain and sciatic pain, reports of vision problems, and reports of depression. (R. 272). He believed that Mr. Ray could sit and stand, walk greater than 50 feet without an assistive device, handle objects using both hands, and lift up to twenty pounds. (R. 273). Dr. Carlton thought that there was no need for Mr. Ray to use an assistive device and observed that he had no difficulty getting on and off the table. (R. 273). He observed that Mr. Ray had mild difficulty walking on his toes and heels and tandem walking and had moderate difficulty squatting and rising. (R. 273). He found that Mr. Ray had no difficulty opening doors, buttoning, zipping, tying shoes, no degree of weakness, and no difficulty holding pens or holding a cup. (R. 274). He had normal range of motion in all categories. (R. 274). His right eye vision was 20/30 and his left eye vision was 20/40. (R. 277).

         Dr. Dennis Karamitis performed a Formal Mental Status Evaluation for the Bureau of Disability Determination Services on December 22, 2012. (R. 280). Dr. Karamitis spent 45 minutes with Mr. Ray. (R. 280). Mr. Ray told Dr. Karamitis that he got a total of three to four hours of sleep each night. (R. 281). He reported suicidal ideations but no attempts (R. 281). Dr. Karamitis found that he was cooperative and self-disclosing, with a depressed mood and affect. (R. 281). His mood was restricted in range, blunted, flat, and sad. (R. 281). Mr. Ray said that he fell victim to physical abuse as a child and adolescent and was shot and sustained knife inflicted stab wounds and a head injury. (R. 283). Dr. Karamitis found that Mr. Ray's performance on the mental status portion was “somewhat consistent with his level of education but also compromised by the depression that currently has a hold on him and is quite notable for the delay in which he was able to provide answers.” (R. 283).

         On June 27, 2013, Mr. Ray went to Cook County hospital, complaining of back pain. (R. 291). His diagnosis was back pain and neuropathy. (R. 293). The doctor's impression was that he suffered from severe multilevel degenerative spondylosis of the cervical spine, causing significant bilateral neurocozoaminal narrowing of the spine. (R. 319-20). On February 15, 2014, Mr. Ray went to the hospital complaining of pain in the left side of his neck, shoulder, and scapula. (R. 322). The medical report noted straightening of the normal cervical lordosis, probably from muscle spasms, severe degenerative spondylosis of the mid to lower cervical spine with disc space narrowing, and mild degenerative changes of the thoracic spine. (R. 322).

         On March 12, 2014, Mr. Ray saw Dr. Mallick and complained that his neck and back was locking up. (R. 288). On March 17, 2014, Mr. Ray went to Cook County Hospital complaining of cramping in his right foot. (R. 286).

         C.

         The Administrative Hearing Testimony

         1.

         Mr. Ray's Testimony

         On July 1, 2014, Mr. Ray had his second hearing with the ALJ.[1] (R. 33). First, he testified that he last worked at an accounting firm, Levy and Rabyne in Skokie, Illinois, for approximately one month. (R. 35). The last time that Mr. Ray had a job lasting longer than a few months was with the International Academy of Design and Technology, where he was hired do a compliance audit. (R. 36). Mr. Ray testified that he would not be able to competently execute the duties of an accountant today because of his inability to concentrate due to the pain in his back and his legs. (R. 36).

         Mr. Ray then testified that he had been experiencing pain in his lower back since 2008. (R. 36). The pain ran from his neck to his shoulders and lower back and radiated down his legs, more the right leg than the left. (R. 36). He felt tingling and numbness in his legs, and had cramps in his feet, specifically around his toes. (R. 37). It hurt him to both walk and sit for an hour or more. (R. 36).

         Dr. Winston Burke at Provident Hospital had given him pain medication. (R. 37). More specifically, he testified that he took Gabapentin, Tramadol, and Ibuprofen. (R. 37). He began taking the Ibuprofen in 2008, but only recently began taking Gabapentin. (R. 37). He took these medicines every three to four hours. (R. 37). He was also on Metformin for his diabetes, which he testified had not gotten better or worse as a result of the medicine. (R. 39).

         He started experiencing extreme neck pain in February of 2014, going to the doctor for pain on February 15, 2014. (R. 38). He testified that the pain got progressively worse each day, and he feared that if he did not see a doctor he would not be able to get off the couch. (R. 38). He ended up calling an ambulance, and in the emergency room the doctor told him that his neck had “locked up” due to chronic arthritis in his neck. (R. 38). The doctors ...


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