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McDowell v. Berryhill

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

October 30, 2017

NANCY BERRYHILL, acting Commissioner of Social Security, Defendant.



         This matter is before the Court on Plaintiff Shawndelle McDowell's motion seeking review of the Commissioner of Social Security's decision to deny his application for disability benefits for the period beginning May 16, 2012 and continuing through the denial date, December 7, 2015. Plaintiff asks the Court to reverse the decision of the Administrative Law Judge (“ALJ”) denying him benefits for this period and either grant his application or remand the case to the Social Security Administration (“SSA”) for further proceedings. For the reasons stated below, the Court reverses the Commissioner of Social Security's decision in part and remands this case for further proceedings consistent with this opinion.

         I. Background

         A. Procedural History

         In May 2010, Plaintiff Shawndelle McDowell (“Plaintiff”) filed an application for Supplemental Security income, alleging a disability onset date of April 26, 2010. [Administrative Record (“AR”), at 11.] Plaintiff's application was denied initially, upon reconsideration, and in an October 12, 2010 decision following a hearing by an ALJ. [AR, at 19.] Plaintiff's request for review by the Appeals Council was denied on February 1, 2013. [AR at 1.] Plaintiff filed a complaint in the district court and, on December 24, 2014, Magistrate Judge Mason issued an order reversing the ALJ's decision. [AR, at 593.] Magistrate Judge Mason determined that the ALJ improperly assessed Plaintiff's credibility and did not give proper weight to the opinions of two medical experts, and consequently that the ALJ would need to reconsider Plaintiff's residual functional capacity.

         The case was remanded to the ALJ, who conducted another hearing on Plaintiff's application. [AR, at 498.] The ALJ found that Plaintiff was under a disability from May 25, 2010 (Plaintiff's application date) through May 16, 2012, but that he experienced medical improvement that restored his ability to work on May 16, 2012 and was able to perform substantial gainful activity as of that date. [AR, at 498-99.] Plaintiff filed a complaint [1] with this Court, challenging the ALJ's determination that he was not disabled from May 16, 2012 until the date of decision.

         B. Factual Background and Relevant Medical Treatment

         Plaintiff was born on November 7, 1975. He is 5' 11” tall and weighed 285 pounds at the time of the 2015 hearing before the ALJ. [AR, at 203.] In November 1998, Plaintiff was shot in the left thigh, back, and right forehead in an attempted carjacking. [AR, at 184, 201.] The gunshot to the left thigh caused arterial injury, which required surgical repair. [AR, at 184, 188, 190, 203]; see also [14] at 3.

         In September 2010, Plaintiff experienced numbness and pain in his left leg. [AR, at 303.] His treating vascular surgeon, Dr. Martin Borhani determined that surgery was necessary. Dr. Borhani performed a left common femoral artery to below-knee popliteal artery with saphenous venous graft. [AR, at 202.] Following the surgery, Plaintiff experienced increased pain, swelling, and drainage of the surgical site. [AR, at 284.] Doctors determined that the surgical site had become infected and prescribed a course of antibiotics. [AR, at 279.] Plaintiff went to the emergency room in October 2010 experiencing swelling in his right upper extremity and pain in his right chest. [AR, at 241.] Testing revealed that Plaintiff was suffering from acute venous thrombosis (a type of blood clot in the deep veins of the leg) and cardiomegaly (an enlarged heart). [AR, at 245, 265, 275]; see also “Deep vein thrombosis, ” Merriam Webster Medical dictionary, (last visited Oct. 26, 2017); “Cardiomegaly, ” Merriam Webster Medical dictionary,, (last visited Oct. 26, 2017). Doctors prescribed Plaintiff a course of anticoagulant medications. [AR, at 228.]

         Plaintiff sought treatment in February 2011 for continued burning pain in his left leg. He was prescribed the nerve pain medication Neurontin. [AR, at 491-92.] Plaintiff was readmitted to the hospital in December 2011 with persistent left leg pain. [AR, at 809.] Examination revealed calf tenderness and diminished distal pulses. [AR, at 811.] Dr. Borhani performed arterial surgery and a surgical revision to address these symptoms. [AR, at 812, 818.] In January 2012, Plaintiff sought medical treatment for an infected left calf wound that stemmed from the previous month's surgery. [AR, at 694.] Doctors provided antibiotics and wound care. [AR, at 735.] In February 2012, Plaintiff was hospitalized with complications stemming from peripheral vascular disease. [AR, at 784]. At that time, Dr. Borhani determined that his prior surgery had failed and performed additional arterial surgery. [AR, at 787.] In March 2012, Dr. Borhani also performed a debridement (the surgical removal of lacerated, devitalized, or contaminated tissue) of the left calf wound, which had not healed. [AR, at 749]; see also “Debridement, ” Merriam Webster Medical dictionary, (last visited Oct. 26, 2017).

         C. Medical Assessments

         All of the medical assessments considered by the ALJ were conducted before Plaintiff's 2011 and 2012 surgeries and other medical treatments. Specifically, on July 9, 2010, consultative physician Dr. Scott Kale evaluated Plaintiff at the request of the Social Security Administration. [See AR, at 200-209.] Dr. Kale reported that Plaintiff complained of constant numbness and tingling in his left foot, intermittent claudication (limping) when walking half a block or standing 15 minutes, and increasing pain in his left leg while sitting, but did not use a cane to walk. [AR, at 202]; see also “Claudication, ” Merriam Webster Medical dictionary, (last visited Oct. 26, 2017). Dr. Kale observed that Plaintiff had moderate difficulty standing or walking on the toes or heels and was unable to squat and arise. Dr. Kale also noted that Plaintiff had an antalgic gait (a gait that develops as a way to avoid pain while walking), which favored his left leg. [AR, at 207]; see also “Antalgic, ” Merriam Webster Medical dictionary, (last visited Oct. 26, 2017). Dr. Kale opined that Plaintiff was suffering from persistent numbness and tingling in the left foot with associated claudication when standing or walking for ten to fifteen minutes, and that these symptoms were consistent with possible arterial insufficiency (any condition that slows or stops the flow of blood through the arteries). [AR, at 209]; see also “Arterial insufficiency, ” Medline Plus Medical Encyclopedia, (last visited Oct. 26, 2017).

         On July 26, 2010, Dr. Frank Jimenez performed a physical residual capacity assessment for the Administration. Dr. Jimenez concluded that Plaintiff could occasionally lift 20 pounds; frequently lift 10 pounds; stand/walk with normal breaks for 6 hours in an 8-hour work day; sit with normal breaks for about 6 hours in an 8-hour work day; and was limited in pushing and pulling with his lower extremities. [AR, at 211.]

         On September 2, 2010, Plaintiff's treating physician Dr. Borhani submitted a medical questionnaire concerning Plaintiff. [See AR, at 218-21.] Dr. Borhani opined that Plaintiff suffered from left leg claudication, pain, and numbness, which occurred when Plaintiff walked for short distances. [AR, at 218.] Dr. Borhani also responded to a number of questions regarding Plaintiff's functional capacity. Dr. Borhani opined that Plaintiff could walk no more than half a block at one time; sit or stand for twenty minutes at one time; sit for less than a total of two hours in an eight-hour day; and stand and walk for a total of two hours in an eight-hour day. [AR, at 218.] However, it is not clear from the questionnaire (or the parties' and ALJ's discussion of the questionnaire) whether Dr. Borhani meant that Plaintiff would have these limitations during the post-operative recovery period only, or also after recovery.[1] Dr. Borhani also opined that, after recovering from surgery, Plaintiff would not need to include periods of walking during an 8-hour work day; would not need unscheduled breaks during a work day; did not need to elevate his leg during prolonged sitting; would not need to use a cane while walking; could frequently lift over 50 pounds; and could frequently twist and occasionally climb ladders and stairs, crouch, squat, bend, and stoop. [AR, at 819-20.] Dr. Borhani further opined that once Plaintiff recovered from surgery, he would be capable of high stress work and was not likely to be absent from work due to his impairments.

         On December 14, 2010, Dr. Virgilio Pilapil reevaluated Plaintiff for the Administration. [See AR, at 322-24.] He “affirmed” Dr. Jimenez's “prior determination.” [AR, at 324.]

         On February 28, 2011, Plaintiff's physician Dr. Delawari completed a questionnaire evaluating Plaintiff. He listed Plaintiff's diagnoses as “PVD, Obesity, OSA, [and] Neuropathy, ” his prognosis as “guarded, ” and his symptoms as “pain to leg especially on walking and burning pain off and on.” [AR, at 327.] He also reported that Plaintiff could walk half a block without rest or severe pain, sit for one hour at a time, stand for 10 minutes at a time, and sit or stand/walk for less than 2 hours in an 8-hour working day, with normal breaks; would need 5 unscheduled 20-minute breaks per day due to pain and numbness; would need to elevate his leg for two hours during an 8-hour work day; must use a cane while standing/walking; could lift 10 pounds occasionally and should never twist, stoop, crouch, or climb ladders; would have 20% “off task” time during a typical work day; would likely have “good days” and “bad days”; and would be absent from work more than four days per month. [AR, at 327-30.] According to Dr. Delawari, the earliest date that his description of symptoms and limitations applied was 2005. [AR, at 330.]

         D. Hearing On Remand Before the ALJ

         The ALJ conducted a hearing on August 31, 2015. [AR, at 520.]

         1. Plaintiff's Testimony

         Plaintiff testified that he was not currently receiving treatment for his impairments due to a lack of medical insurance, and that he had not been covered by Medicaid since 2013. [AR, at 527.] Plaintiff testified that he visited the emergency room in 2014 because he was experiencing numbness in his left toes. [AR, at 528.] Plaintiff was prescribed medicine but stopped taking it because he did not have insurance. [AR, at 534.]

         Plaintiff also testified that he could walk for one and a half blocks at a time with the use of cane before he experienced severe leg pain. [AR, at 536.] Without the cane, he could walk for no more than half a block at a time. Id. He could stand for thirty minutes when he used the cane and fifteen minutes when he did not. [AR, at 555-56.] Plaintiff's physical therapist advised him to use a cane to walk, but no doctor prescribed the cane. [AR, at 540-41.] Plaintiff further testified that he could sit for no more than ten minutes at a time before he needed to stand due to numbness in his legs. [AR, at 556.] His doctors and physical therapist advised him to elevate his legs when he sat. [AR, at 542.] Plaintiff spent most days in the company of his children, but could ...

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