Barner v. Colvin

AL F. BARNER, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

No. 15-CV-850

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

October 27, 2015

Judge Amy J. St. Eve

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

Plaintiff Al F. Barner ("Mr. Barner") brings this action pursuant to 42 U.S.C. §405(g) seeking judicial review of the Acting Commissioner of the Social Security Administration's ("Commissioner") final agency decision denying his application for Title II Disability Insurance Benefits ("DIB") pursuant to the Social Security Act, 42 U.S.C. §§416(i), 423(d). Before the Court is Mr. Barner's motion for summary judgment asking the Court to reverse and remand the Commissioner's decision for a new hearing. For the following reasons, the Court denies Mr. Barner's motion.

PROCEDURAL HISTORY

On December 29, 2011, Mr. Barner applied for DIB alleging that he became disabled beginning on November 15, 2011 after being shot in a drive-by shooting. (R. 8, Admin. Record, at 12.) The state disability determination service initially denied Mr. Barner's application on May 4, 2012 and, upon reconsideration, denied it again on September 10, 2012. (Id.) Subsequently, on October 1, 2012, Mr. Barner filed a written request for a hearing. (Id.) On July 25, 2013, Mr. Barner appeared and testified at a video hearing before Administrative Law Judge Edward P. Studzinski ("ALJ"). (Id. at 12, 23.) Mr. Barrier appeared in Gary, Indiana while the ALJ presided over the hearing from Valparaiso, Indiana. (Id.) An impartial vocational expert, Ronald Malik, also appeared and testified at the July 2013 video hearing. (Id.) On August 8, 2013, the ALJ issued a written decision concluding that Mr. Barner was not disabled within the meaning of the Social Security Act. (Id. at 12-23.) Thereafter, on October 7, 2013, Mr. Barner sought review of the ALJ's decision with the Social Security Administration's Appeals Council. (Id. at 8.) On December 2, 2014, the Appeals Council denied Mr. Barner's request for review. (Id. at 1-6.) Mr. Barner filed the present action for judicial review on January 28, 2015. (R. 1, Complaint.)

FACTUAL BACKGROUND

I. Vocational Evidence

Mr. Barner was born on June 14, 1957 and was fifty-six years old when the ALJ released his August 8, 2013 decision. (R. 8, Admin. Record, at 169.) He was approximately 5'5" tall and weighed around 170 pounds. (Id. at 40.) In June 1976, Mr. Barner completed at least one year of college. (Id. at 190.) Mr. Barner was once married, is currently separated, and has two children, ages nineteen and twenty as of April 2012. (Id. at 424.) Beginning in 1996, Mr. Barner worked full-time as a medical facility security officer for approximately sixteen years prior to the ALJ's decision. (Id. at 217, 218.) Additionally, he worked five hours a day, five days a week as a part-time home aid taking care of his elderly father for approximately thirteen years prior to the ALJ's decision. (Id. at 217, 219.)

II. Medical Evidence

Medical evidence in the record includes information regarding the shooting incident and medical aftermath that triggered Mr. Barner's DIB requests at issue. (Id. at 261-67.) OnNovember 15, 2011, Mr. Barner was standing on his friend's porch when an unknown assailant drove by and shot him multiple times, striking Mr. Barner in the posterior chest, back, and left forearm and killing Mr. Barner's friend. (Id. at 262, 424.) After the unfortunate shooting, paramedics took Mr. Barner to Little Company of Mary Hospital. (Id. at 261.) X-ray examinations revealed a number of pellets from a shotgun injury to Mr. Barner's chest, abdomen, and forearm. (Id. at 265-67.) Mr. Barner's abdomen x-ray also revealed degenerative changes and dextroscoliosis of his lumbar spine. (Id. at 266.) Ultimately, Little Company of Mary Hospital determined Mr. Barner was in critical condition and transferred him to Mt. Sinai Hospital's trauma care. (Id. at 264.)

At Mt. Sinai, Mr. Barner's treating physician, Dr. Vincent Makhlouf, performed two surgeries on Mr. Barner within a week of the November 15, 2011 shooting. (Id. at 292-94, 296-97.) On both November 16 and November 21, 2011, Dr. Makhlouf operated on Mr. Barner's left forearm to relieve Mr. Barner of his compartment syndrome and repair the wound using a skin graft. (Id.) On November 28, 2011, Dr. Makhlouf scheduled Mr. Barner for eight weeks of outpatient occupational therapy. (Id. at 437-38.) Despite the occupational therapy, Mr. Barner continued to experience stiffness and flexion contractures in his left hand. (Id. at 306.) As a result, on February 1, 2012, Dr. Makhlouf performed a third surgery on Mr. Barner in which he conducted a flexor tenolysis, manipulating Mr. Barner's left fingers and joints. (Id.) On February 6, 2012, Dr. Makhlouf scheduled additional post-operative occupational therapy tailored toward Mr. Barner's left hand and issued Mr. Barner a CPM splint machine. (Id. at 360-61.) Mr. Barner began attending the additional occupational therapy on February 9, 2012. (Id. at 467.) Eventually, on March 5, 2012, Dr. Makhlouf issued a "no restrictions" order to Mr. Barner's occupational therapists. (Id. at 359.) Mr. Barner's occupational therapists interpretedthis note to mean that there were no restrictions regarding the therapy techniques they could implement for Mr. Barner's left arm. (Id. at 468.) On March 6, 2012, however, Mr. Barner lost his full-time security guard job and health insurance. (Id. at 467.) Subsequently, on March 7, 2012, Mr. Barner attended his last occupational therapy session, and the hospital halted all future sessions until Mr. Barner's insurance status changed. (Id.) At that time, Mr. Barner's occupational therapist determined that Mr. Barner had achieved two of his eight goals for his left hand. (Id. at 362.) During his last week of occupational therapy, however, Mr. Barner expressed to his therapists that he "should be fine," explaining that his extension was "really getting better" and that he was "able to pick up small objects." (Id. at 467-469.) Ultimately, Dr. Makhlouf released Mr. Barner to perform sedentary work beginning on May 21, 2012. (Id. at 496.)

The medical evidence in the record also includes information regarding Mr. Barner's clinical encounters with Dr. Urszula Jablonska on December 14, 2011, January 5, 2012, November 20, 2012, December 12, 2012, and March 6, 2013. (Id. at 331, 335, 476, 477, 481.) In her psychiatric examination, Dr. Jablonska consistently evaluated Mr. Barner as having "good judgment . . . normal mood and affect . . . [and being] active and alert . . . [and] orient[ed] to time, place, and person[.]" (Id. at 332, 335, 477, 481, 484.) Mr. Barner, however, alleged to Dr. Jablonska that he suffered from a number of issues including difficulty sleeping, fatigue, headaches, and reported depression. (Id. at 331, 335, 476, 477, 481.) Based on Mr. Barner's report, Dr. Jablonska determined Mr. Barner suffered from, in part, essential hypertension (unspecified), depressive disorder (not elsewhere classified), insomnia (unspecified), injuries related to a firearm, and injuries related to back pain. (Id. at 331, 334, 475-76, 480, 483.) Relatedly, the record medical evidence details Mr. Barner's Disability Determination Explanation reports that include his encounters with state agency psychological consultants, Drs.David Gilliland and Lionel Hudspeth. (Id. at 84, 98.) Both doctors referenced Dr. Jablonska's "depressive" assessment and concluded that the "medical evidence [was] not indicative of a severe mental condition," referring to Mr. Barner's allegations as "credible and indicatve [sic] of no more than mild mental functioanal [sic] limitations." (Id.)

Other medical evidence in the record included a report from Mr. Barner's April 5, 2012 psychological consultation with Dr. Jeffrey Karr. (Id. at 424-27.) Dr. Karr reported that Mr. Barner's "[m]ood and affect were contruent [sic] without overt indication of dysphoria or anxiety . . . He was alert but not vigilant with no apparent cognitive difficulty. There was no indication of gross psychopathology." (Id. at 425.) In sum, Mr. Barner "presented unremarkably." (Id. at 427.) Dr. Karr reported, however, that, "in contrast to [this conclusion], [Mr. Barner] alleges residual emotional effects in connection with trauma." (Id.) Ultimately, Dr. Karr diagnosed Mr. Barner with "post-traumatic stress disorder, not otherwise specified." (Id. at 426.)

Finally, the record medical evidence included, in part, a detailed description of Mr. Barner's August 22, 2012 physical consultation and examination with Dr. Patil. Dr. Patil's report detailed Mr. Barner's chief complaints, current medications, social history, general appearance, and medical status, both physical and mental. (Id. at 463-66.) Specifically, in relevant part, Dr. Patil reported the following: Mr. Barner's gait was "normal"; he had "no swelling, tenderness, deformity, or hypernia of any joint"; he had "no paravertebral tenderness or spasm"; he had "full range of motion in all joints"; he exhibited only slight flexion limitation; his strength was five out of five in all extremities except the left upper extremity that was only slightly diminished, ranking four out of five; he showed no limitations when picking small objects up; and he only displayed mild limitations in his left upper extremity when opening a door or squeezing a bulb. (Id.)

III. Hearing Testimony

A. Ms. Heather Garay's Opening Statement

Ms. Garay, Mr. Barner's counsel, gave an opening statement at the hearing. (Id. at 32.) Ms. Garay began her statement by describing Mr. Barner's gunshot injuries to his left arm and hand, his multiple surgeries, his lasting impairment and pain, and his occupational therapy. (Id. at 32-33.) In addition, Ms. Garay discussed Mr. Barner's ongoing lumbar degenerative disease, multiple herniated discs, and stenosis exacerbated by the ...