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Kirkwood v. Colvin

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

April 20, 2017

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


          Jeffrey Cole, Magistrate Judge

         The plaintiff, Ronald Kirkwood, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying his application for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). Mr. Kirkwood asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.


         I. Procedural History

         On May 10, 2012, Mr. Kirkwood completed a Title II application for a period of disability and disability insurance benefits (“DIB”).[1] (R. 200). On that same day, he also filed a Title XVI application for supplemental security income (“SSI”). (R. 204). In both applications, he alleged disability beginning on January 1, 2011. (R. 200, 204). These claims were initially denied on July 18, 2012, and upon reconsideration on January 4, 2013. (R. 116, 120, 132). Thereafter, Mr. Kirkwood filed a written request for a hearing on February 5, 2013. (R. 137). On April 10, 2014, a hearing was conducted by an Administrative Law Judge (“ALJ”). (R. 34). Mr. Kirkwood personally appeared and testified at the hearing, and he was represented by counsel. (R. 34-35). On May 13, 2014, the ALJ denied Mr. Kirkwood's claims for both DIB and SSI, finding him not disabled under the Act. (R. 27-28). The ALJ's decision became the Commissioner's final decision on December 16, 2015, when the Social Security Administration (“SSA”) Appeals Council denied Mr. Kirkwood's request for review. (R. 1-3). See 20 C.F.R. §§ 404.955. Mr. Kirkwood 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; failed to account for or weigh examining source opinion; and erred by finding his emphysema does not meet Appendix Listing 3.02(A).

         II. The Record Evidence

         a. Vocational Evidence

         Mr. Kirkwood was born on March 30, 1965. (R. 26). At the time of his hearing, he was 49 years old. (R. 26). He has an eighth-grade education (R. 83) and his past relevant work includes jobs as a laborer (R. 241) and a truck driver (R. 83, R. 241). According to his recent Work History Report, Mr. Kirkwood was a self-employed truck driver from 1997-2001. (R. 241). He was then a temporary laborer from 2006 to 2011 (R. 241). He left school after the eighth grade and only returned for driver's education. (R. 73). He did not complete any high school courses. (R. 73). He ability to read and write is minimal; just a few words. (R. 61).

         b. Medical Evidence

         In his twelve-page memorandum in support of his motion for summary judgment, Mr. Kirkwood bases his claim that he is entitled to SSI benefits on his medical conditions: emphysema, back and neck pain, and cognitive disorder. He cites to various pieces of medical evidence to support his position: diagnostic test results, including: chest X-rays (R. 498); psychiatric reports (R. 571-576, 730-734); MRI report of his Cervical Spine (R. 716); cervical spine and lumbar spine examination (R. 691, 715-725); and several reports from physicians who treated him. He contends that this evidence proves that the ALJ erred when she failed to find that he was disabled.

         i. Physical Impairments

         Since 1997, Mr. Kirkwood has struggled with shortness of breath. (R. 559). He admitted to smoking twenty cigarettes per day for forty years. (R. 559). On February 20, 2009, Mr. Kirkwood was treated at Provena Mercy Center Emergency Department for chest pain. (R. 342). A chest x-ray revealed “emphysematous changes in both lungs; debris / mucus in a few right lower lobe bronchi; passive compressive atelectasis in the right lower lobe.” (R. 352). There was no evidence of pulmonary emboli at the first subsegmental pulmonary arterial level. (R. 352).

         On August 15, 2009, Mr. Kirkwood was back at Provena Mercy Center Emergency Department for a head injury. (R. 358). He was diagnosed with “alcohol intoxication and facial abrasions.” (R. 362). A Facial CT scan revealed no acute hemorrhage, fracture, mass effect or shift. (R. 363). The impression also revealed a complete opacification of the left maxillary sinus and frontal sinus and left clavicle fracture. (R. 14-15, 44, 363). A few days later, on August 18, 2009, Mr. Kirkwood was treated at Provena Mercy Center Emergency Department for a clavicle fracture and difficulty breathing. (R. 368). Mr. Kirkwood complained of difficulty of breathing following a bicycle accident. (R. 368). A PA and lateral chest x-ray showed left clavicular fracture; emphysema without air space considerations; and no pleural effusion or pneumothorax. (R. 374). On August 21, 2009, Mr. Kirkwood returned to Provena Mercy Center Emergency Department complaining of left clavicle pain. (R. 376). He stated his pain medication was not working and he believed it was “not what it is supposed to be”. (R. 376-77). Pharmacy confirmed the medication was correct and Mr. Kirkwood was released with additional prescriptions. (R. 377).

         In January 2010, Mr. Kirkwood became ill with pneumonia. (R. 381). A chest x-ray, from January 13, 2010, revealed left upper lobe airspace disease; left upper lobe cavitary lesion; and hyperinflation of the lungs. (R. 382). On January 19, 2010, Mr. Kirkwood was hospitalized for left upper lobe cavitary pneumonia. (R. 384). He tested positive for acid-fast bacillus (“AFB”). (R. 626). Laboratory tests revealed Mycobacterium genicum, an atypical type of bacteria that is a non-regular pulmonary TB organism. (R. 626). Diagnostic imaging showed “extensive acute appearing abnormality in left upper lobe; multiple large bilateral apical blebs; centrilobular emphysema; stable pulmonary nodule; left pleural effusion; bibasilar atelectasis; and multiple old bilateral rib fractures.” (R. 390-391). A left upper lobe bronchoscopic biopsy showed bronchial mucosa with chronic inflammation with no evidence of malignancy. (R. 489). Radiological imaging revealed worsening of the dense consolidation in the left upper lobe with cavitation or infected bulla and apparent air bronchogram formation. (R. 435).

         From March 2, 2010, through December 7, 2010, Mr. Kirkwood was treated for active Pulmonary Tuberculosis at the Kane County Health Department. (R. 498, 499). Mr. Kirkwood returned to the emergency room in July 2010 for a cough. (R. 521). A chest x-ray revealed patchy interstitial opacities in the left upper love greater than in both perihilar regions in the left lower lobe. (R. 426, 521). Mr. Kirkwood was prescribed a Z-pack. (R. 521). On September 15, 2011, the Kane County Health Department informed Mr. Kirkwood that his treatment for pulmonary tuberculosis was successful. (R. 498). As a precautionary measure, a follow-up CT scan was performed in January 2012. (R. 420). The scan revealed two focal areas of chronic scarring or atelectasis of the left upper lobe. (R. 420). The reviewing radiologist, Dr. Robert Palmer, M.D., concluded this finding was likely due to previous infection, such as chronic tuberculosis and bullous emphysema. (R. 420). Comparing previous radiography from 2010, Dr. Palmer concluded that findings were improved. (R. 420).

         From summer of 2011 to July 7, 2012, Mr. Kirkwood had no emergency room visits. (R. 41-42). On July 7, 2012, Dr. Muhammad Rafiq, M.D., completed an Internal Medicine Consultative Examination, arranged by the Bureau of Disability Determination Services. (R. 559-570). Dr. Rafiq spent twenty-six minutes with Mr. Kirkwood before writing his report. (R. 559). Mr. Kirkwood complained of a disability due to shortness of breath. (R. 559). Dr. Rafiq observed that Mr. Kirkwood “was not in any acute respiratory distress.” (R. 560). He noted that Mr. Kirkwood's lungs were “clear to auscultation and percussion without rales, rhonchi or wheezes.” (R. 560). Mr. Kirkwood had no difficulty getting on and off the examination table. (R. 561). He was able to walk “greater than 50 feet without support.” (R. 561). He was also able to walk on the toes or heels bilaterally, and he was able to do the heel to toe walk. (R. 561). He was able to stand on one leg bilaterally but was unable to hop on one leg bilaterally. (R. 561). He was able to fully extend his hands, make fists, and oppose the fingers to thumb. (R. 561). The range of motion of the hips, knees, ankles, cervical and lumbar spine was normal. (R. 561). His straight leg raise test was negative bilaterally. (R. 561). Regarding Mr. Kirkwood's mental state, Dr. Rafiq noted that he was alert, oriented, cooperative, polite, pleasant, and had good hygiene. (R. 561). He also observed that there were no signs of depression, agitation, irritability or anxiety. (R. 561). Dr. Rafiq found Mr. Kirkwood was able to manage his own funds. (R. 561). Dr. Rafiq's clinical impressions were that Mr. Kirkwood suffered from emphysema and a learning disability. (R. 562).

         In addition to his physical examination, Mr. Kirkwood underwent a pulmonary function test, performed by Dr. Rafiq. (R. 566). A spirograph produced an FEV1 value of 1.55. (R. 565). His height that day was measured at 73 inches. (R. 565). Dr. Rafiq's notes indicated that Mr. Kirkwood had not had a cold recently, but had dizziness and some coughing. (R. 565). Dr. Rafiq indicated that there was no audible wheezing. (R. 565). The doctor also noted that during the test, Mr. Kirkwood complained of ear popping, dizziness, and “difficulty breathing - no good.”. (R. 565).

         In addition to his pulmonary issues, Mr. Kirkwood also suffers from back and neck pain. (R. 691, 715-725, 730-742). On September 5, 2012, a cervical spine and lumbar spine exam revealed degenerative changes without obvious fracture or significant spondylolisthesis. (R. 715). On November 26, 2012, an MRI showed “small broad-based central disc protrusion at the C4-5 level contributing to mild central canal stenosis; mild multilevel degenerative disease of the cervical spine; small T2 hyperintensities within bilateral neural foramina.” (R. 717).

         ii. Mental Impairments

         On July 10, 2012, Dr. Kelly Renzi, Psy.D., completed a psychiatric evaluation, arranged by the Bureau of Disability Determination Services. (R. 571-576). On the Wechsler Adult Intelligence Scale-IV exam, he obtained a full-Scale I.Q. score of 71, placing him at the low-end of the Borderline Deficient range. (R. 575). During the examination, Dr. Renzi found Mr. Kirkwood to be “terse” and “argumentative.” (R. 575). He also found Mr. Kirkwood demonstrated a low tolerance for frustration and he “genuinely had intellectual deficits.” (R. 575). Dr. Renzi also noted that Mr. Kirkwood appeared to have limited motivation to learn new abilities and concepts. (R. 575). Still, Dr. Renzi opined that if he was awarded benefits, he would be able to handle his own finances. (R. 575).

         On April 3, 2014, Dr. Mark A. Amdur, M.D., performed a second psychiatric evaluation, at the request of Mr. Kirkwood's attorney. (R. 730-734). Mr. Kirkwood was administered the Montreal Cognitive Assessment, and he attained a score of 20 out of 30. (R. 733). Dr. Amdur noted that his score was “consistent with significant cognitive impairment and also consistent with a history of childhood learning disabilities.” (R. 733). After reviewing the medical record, Dr. Amdur found his spirometry report from July 2012 was consistent of plaintiff's subjective report of shortness of breath upon minimal exertion.” (R. 733). Dr. Amdur also noted that throughout the interview, Mr. Kirkwood was restless and shifted positions, “consistent with back and neck discomfort.” (R. 732). Dr. Amdur diagnosed Mr. Kirkwood with Cognitive Disorder and Intellectual Limitation. (R. 734). Dr. Amdur disagreed with Dr. Renzi's psychological evaluation and found “the true value of Dr. Renzi's report is that it demonstrates Mr. Kirkwood's maladaptive coping skills in a setting equivalent to a work setting.” (R. 733). Additionally, Dr. Amdur found that Mr. Kirkwood's diagnosis of Cognitive Disorder and Intellectual Limitation conveyed significant limits on his ability to understand instructions. (R. 734). Dr. Amdur opined that based on his history of homelessness, Mr. Kirkwood was unable to handle his own finances. (R. 734).

         c. The Administrative Hearing Testimony

         i. Mr. Kirkwood's Testimony

         On April 10, 2014, Mr. Kirkwood had his hearing with the ALJ (R. 34). He testified that he was homeless for eight years before he entered into the LIGHT-House Program. (R. 73). He has a few friends from the LIGHT-House program and has one outside friend - “the only sober person he knows.” (R. 61). He admitted that he had an alcohol problem but he has sought counseling through a state counseling program. (R. 68). He testified that he prefers to be alone because he “does not trust strangers, ” and he “can control the situation and move at my own pace.” (R. 62-63).

         In regards to his physical impairments, Mr. Kirkwood testified that his neck and back pain prevented him from working. (R. 53). He complained that he was “always out of breath.” (R. 53). He stated that he has constant pain and has difficulty breathing when carrying things. (R. 53). When asked how far he can walk, Mr. Kirkwood testified that he could not carry a gallon of milk and walk one block without resting every 50 feet. (R. 53). He claimed he would have to rest for one minute, standing in one place. (R. 54). When asked by the ALJ how long he could stand in one place, he responded “five minutes.” (R. 55). He testified that after standing in one place for five minutes, he would begin to have neck and lower back pain. (R. 56). As far as sitting, he testified that he could sit for five to ten minutes before he would have pain in his neck and lower back. (R. 56). To cope with the pain, Mr. Kirkwood took Norco. (R. 59). He testified that the Norco “made him sleepy” and as a result, he napped regularly. (R. 59).

         Regarding his daily activities, Mr. Kirkwood testified that he receives assistance with transportation and shopping. (R. 59). Without this help, he opined that he would not be able to shop as frequently or get the things he needed. (R. 60). He could do housework, but had to do it very slowly and had to stop now and then. (R. 59).

         In addition to his physical impairments, Mr. Kirkwood testified that he cannot read or write. (R. 60). He claims he is capable of writing a few words, in English. (R. 61). He testified that he was unable to fill out the Social Security forms, and as a result, he had help filling out every single form. (R. 61). Due to his illiteracy, he said it took him years to figure out public transportation. (R. 60).

         Mr. Kirkwood also testified about his prior work history. He stated that over the last ten years, he found people “worked faster” than him and as a result, he has had problems securing a job. (R. 64). Specifically, he said “I'm not going to last in the workplace, working at the pace I work at now.” (R. 64). He testified that every time he was sent out, he was told that he was working too slow. (R. 64). For example, when he was at Elite Temp Service, he found his job, as an assembly man, “too fast-paced.” (R. 64-65). He claimed he had to work slowly because of his pain and breathing problems. (R. 65). As a result, he was unable to keep up with the production requirements. (R. 65). At his hearing, he admitted that he was unqualified due to his lungs. (R. 66). He explained that upon exertion, his breathing slows down and “the longer my breathing is slowed down, the longer it takes for me to recover.” (R. 66-67).

         ii. The Medical ...

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