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VAILE v. CHATER

February 26, 1996

KATHLEEN VAILE a/k/a KATHLEEN A. CLEMENTI, Plaintiff,
v.
SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: CASTILLO

 Pursuant to 42 U.S.C. § 405(g), Kathleen Vaile a.k.a. Kathleen A. Clementi ("Vaile") appeals the final decision of the Commissioner of Social Security, Shirley S. Chater ("Commissioner"), *fn1" denying Vaile's application for Supplemental Security Income ("SSI") under sections 1602 and 1614(a)(3)(A) of the Social Security Act, 42 U.S.C. §§ 1381a and 1382c(a)(3)(A). Both parties move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. *fn2"

 RELEVANT FACTS

 The Court begins with a broad overview of the facts, and then reviews the evidentiary record adduced at the hearing in detail. Vaile is a 44 year-old woman who alleges that she became disabled on October 22, 1991, due to back problems. (R. 34). She attended high school through the tenth grade but did not graduate; however, she earned her general equivalency diploma (GED) in 1992. (R. 65, 128, 202). Her full scale I.Q. of 80, which provides an assessment of general intelligence and general occupational and scholastic aptitude, places her in the "low average" classification. (R. 131).

 Vaile filed an application for SSI on December 19, 1991, with a protected filing date of October 22, 1991. (R. 34-37). Her application was initially denied on May 21, 1992 (R. 39-40), and denied on reconsideration on August 26, 1992, (R. 53). Following a hearing on January 10, 1994, Administrative Law Judge John M. Gough ("ALJ") issued a decision denying SSI benefits on May 27, 1994. (R. 14-27). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied review. (R. 3-4). Vaile then filed a complaint for judicial review, pursuant to 42 U.S.C. § 405(g). The Court now considers the record in this case to determine whether the ALJ's decision is "both supported by substantial evidence and based on the proper legal criteria." Ehrhart v. Secretary of Health and Human Services, 969 F.2d 534, 538 (7th Cir. 1992).

 A. Vaile's Testimony

 Vaile testified at the administrative hearing without the assistance of counsel or a non-attorney advocate. (R. 193). Vaile was 41 years old at the time of the hearing. (R. 195). She is five feet tall and weighs about 155 pounds. (R. 196). She did not graduate from high school, but recently earned her GED. Id. In 1991, she enrolled in courses at a community college but stopped attending due to headaches and back pain. (R. 88). She lives in an apartment with her 15 year-old son. (R. 208).

 Vaile was last employed in 1990, when she worked part-time for three months at a senior citizen center cleaning homes of the elderly. (R. 202-203). Before cleaning homes, Vaile was employed as a nurse's aide from at least 1983 until back pain forced her to stop working in that capacity in 1991. (R. 65-66). The back pain began in 1988 after she fell while at work. (R. 34, 96, 98, 108). She experiences pain in her lower back and in both legs. (R. 203-204). About once a week, her back "locks up"; she describes the sensation as "a shooting pain that goes up and down the legs" followed by numbness." (R. 204). For her back pain, she takes Flexeril, a muscle relaxant. (R. 198). As a result of her back pain, she sleeps poorly at night getting only three to four hours of sleep. (R. 197). Because she becomes tired each afternoon, she takes a nap for about an hour and a half. Id.

 Vaile experiences severe headaches which have occurred each day for at least the past two years and which she attributes to a side effect of the Flexeril. (R. 198, 204-205). For relief, she takes non-prescription Tylenol, which typically alleviates the pain after a couple of hours. (R. 205). Vaile also experiences problems with her left knee, which "locks up" in cold weather and swells as a consequence of breaking it in 1991. (R. 207). She does not wear a brace or support for her back or knee. Id. Nor does she perform exercises for her back or knee or use assistive devices when walking. Id.

 When asked about her abilities to perform various tasks at home, Vaile stated that she does cooking, dishes, bedmaking and dusting; her teenage son vacuums, washes floors and removes the trash. (R. 209). When climbing the stairs to her second-floor apartment, she experiences considerable back pain. Id. When asked to describe her daily activities, Vaile testified that she mostly reads, receives visitors and attends church services twice weekly. (R. 210-212). Once in a while, she goes out to dinner with a friend or attends church functions. (R. 212). Vaile testified that she can only sit for 20 to 30 minutes at one time and stand in one place for 15 minutes, at most. (R. 207). In addition, she has difficulty walking four blocks at one time. (R. 208)

 B. Vaile's Medical Records

 Family Medical Clinic

 On March 4, 1991, Vaile was seen at the Family Medical Clinic. The report states she complained of intermittent back pain that she has had for several years. (R. 96). She was diagnosed as suffering from lumbar strain and was prescribed Naprosyn. Id.

 Dr. Seghers

 Vaile was examined by Dr. Victor Seghers, M.D. ("Seghers") on March 31, 1992, at the Heart of Texas Cardiovascular Center in conjunction with her SSI application. (R. 98). Seghers' records result from his disability evaluation of Vaile. Id. Vaile reported "some pain in her low back with some pain radiating down the legs with some numbness in her legs and chronic low back pain." Id. Seghers' physical examination revealed a normal range of motion in her back with no significant abnormalities. (R. 99). Examination of the lumbosacral spine showed "very early osteoarthritis with early osteophytes mostly at T10-11, otherwise normal and negative x-rays." Id. His impression was "very early degenerative arthritis of the LS spine." Id.

 Upon examination of Vaile's left knee, Seghers noted "the left knee is at normal with significant narrowing of the joint space and obliteration of the joint space between the tibia and the femur." Id. His impression was that there was an abnormal knee x-ray with some post-traumatic arthritis. Id. Seghers further commented that Vaile is going to school and managing quite well. Id.

 Dr. Joseph

 During 1992, Vaile visited Dr. Rosamma Joseph, M.D. ("Joseph"), a neurologist. On April 20, 1992, Joseph evaluated Vaile. In reporting Vaile's history, Joseph noted the following: Vaile reported that she has had headaches "for a long time but they got significantly worse ever since she hurt her low back in 1988." (R. 112). She also experienced nausea and lightheadedness with the headaches which might result in some noise and light intolerance. Id. She complained of constant pain and discomfort in her lower back, but a CT scan of the lumbosacral spine was reportedly negative. Id.

 Joseph's examination revealed the following: "low back shows increased lordosis, she was very irritable on palpation of the low back in the midline and paraspinally. No spasm was appreciated. [Range of motion] of the back was diminished to about 75% in all directions." (R. 114). His overall impressions were: "1) Chronic, recurrent headaches with features of muscle contraction headaches, most likely due to chronic stress and muscle tension. 2) Chronic low back pain referred into the legs with numbness and weakness of the legs, rule out herniation." (R. 115). Joseph advised that an exercise program and weight loss might be beneficial. Id.

 On May 13, 1992, Joseph saw Vaile for a follow-up and re-evaluation. (R. 101). He reported that the Vaile "had an EMG nerve conduction study done including both legs and paraspinal muscles which was essentially within normal limits." (R. 101, 110-111). Joseph also reported Vaile had an MRI scan of the lumbosacral spine done at Metroplex Hospital on May 5, 1992, showing mild, diffuse spondylosis and a mild diffuse bulging disc at 3-4 level, but this did not appear to be a disc herniation. (R. 101). At the L4-5 level, "there was moderate bulging of the disc causing mild impression of the thecal sac. The nerve roots appear to be free but small amount of compression of the existing L5 root could not be ruled out." Id.

 Joseph reported that Vaile "can do light duty, sedentary job but should preferably avoid heavy, strenuous activities to the back which may further deteriorate her condition." (R. 102.) At that time, Joseph noted that there was no evidence Vaile's condition was surgically correctable. Id. Since she could not take anti-inflammatory medications, he prescribed Robaxin and Pamelor for her headaches and back pain. Id. Joseph referred her for physical therapy for two weeks and scheduled a re-evaluation in four weeks. Id.

 On April 13, 1993, Joseph completed a work prescription report. (R. 124) Joseph opined that Vaile could walk between 1/2 and 1 mile, sit and stand 25-50% of the time, and lift 10 to 20 pounds. Id. Vaile should not walk up stairs and should perform only limited bending. Id.

 Dr. Rudd

 On February 3, 1993, M. David Rudd, Ph.D. ("Rudd"), a psychologist, assessed Vaile's general intellectual and emotional functioning, and obtained data to assist in vocational counseling and guidance. (R. 127). Vaile revealed that she was divorced and has two children; received AFDC food stamps, Medicaid, and housing support; and had been unemployed for approximately the past three years. Id. She was motivated for retraining or schooling and wanted to study to be a social worker. (R. 128). She operated a household, routinely sleeps approximately 8 hours a day, and "effectively engages in the full spectrum of activities required for independent living and self-sufficiency." (R. 130).

 Vaile appeared to have suffered chronic depressive symptomatology of varying intensity since late adolescence. (R. 132). Intellectual and academic testing suggested limited and below average skills, indicating the need for basic skill development. Id. Based on his testing and evaluation, Rudd made the following recommendations: (1) adult education classes to address limited academic skill; (2) vocational and general occupational interest testing and counseling to assist in both identifying and clarifying her interests and ensuring that current interests match intellectual/academic skill level; (3) counseling to assist her in dealing with current stressors, chronic depressive symptomology, and self-image/efficacy issues; and (4) consultation with a psychiatrist to address any potential need for medication (either at present or if she experienced an acute exacerbation of reported symptomatology). Id.

 Rudd stated that in general, Vaile appeared to be performing consistent with her assessed level of intellectual functioning. Id. She was highly motivated to pursue a degree in social work and would appear to possess the basic skills necessary. Id. However, her assessed skills are limited and below average. Id. Her full scale I.Q., which provides an assessment of general intelligence and general occupational and scholastic aptitude, was of 80, which placed her in the "low average" classification. (R. 131). However, she did not qualify for a formal diagnosis of a learning disability. (R. 132). Without additional assistance or tutoring, it is likely that college level work will prove too difficult for her, particularly given a somewhat rigid, perseverative approach to problem-solving. (R. 130).

 Dr. Vancura

 Dr. Stephen J. Vancura, M.D., reviewed Vaile's lumbosacral MRI scan performed at Metroplex Hospital on May 5, 1992. (R. 103). Based on his evaluation, he reported indications of disc degeneration and desiccation. Id. He found mild degenerate facet disease at all levels. Id. However, he concluded that there was no disc herniation at any level. Id.

 C. Vocational Expert's Testimony

 Vocational expert Dr. D. Wilson Manning ("VE") was present throughout Vaile's hearing and testified that, according to Vaile's testimony, Vaile could perform light work. (R. 216-217). The VE based his determination on a hypothetical posed by the ALJ:

 (R. 216-217).

 The VE determined that the hypothetical person was incapable of performing Vaile's past work as a nurse's aide, but was capable of performing production-type work, such as assembling and hand packaging. (R. 217-218). The VE also testified that there were hundreds of these jobs in the Waco, ...


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