Kirkwood v. Colvin
| Decision Date | 20 April 2017 |
| Docket Number | No. 1:16-cv-02198,1:16-cv-02198 |
| Parties | RONALD KIRKWOOD, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
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.
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 alsofiled 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).
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 pastrelevant 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).
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.
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; centrilobularemphysema; 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 beforewriting 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...
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