United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey Cole, Magistrate Judge
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.
10, 2012, Mr. Kirkwood completed a Title II application for a
period of disability and disability insurance benefits
(“DIB”). (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).
The Record Evidence
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).
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.
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).
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.
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).
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).
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.
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).
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).
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.
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).
The Administrative Hearing Testimony
Mr. Kirkwood's Testimony
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.
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).
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).
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).
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).
The Medical ...