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ORTIZ v. CHATER

November 14, 1997

JUAN ORTIZ, Plaintiff,
v.
SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: KEYS

 The Plaintiff, Juan Ortiz, seeks judicial review pursuant to the Social Security Act, 42 U.S.C. § 405(g), of a final decision of the Commissioner of Social Security (hereinafter "Commissioner") *fn1" denying his application for Disability Insurance Benefits. Plaintiff moves the Court for summary judgment reversing the Commissioner's decision denying his claim for such benefits or, in the alternative, an order remanding the case to the Commissioner for further proceedings. The Commissioner has filed a Cross-Motion for Summary Judgment in his favor. For the reasons set forth below, Plaintiff's Motion for Summary Judgment is denied and the Commissioner's Cross-Motion for Summary Judgment is granted.

 Procedural Background

 On March 16, 1994, Plaintiff filed an Application for Disability Benefits, alleging that he had been unable to work because of a disability since February 24, 1992. *fn2" (R. at 62-64.) He alleged disability on the basis of a lower back injury sustained in February, 1992. (R. at 83.) On July 12, 1994, Plaintiff's application was denied. (R. at 66-70.) Pursuant to Plaintiff's Request for Reconsideration, (R. at 71), the application was again denied on October 21, 1994. (R. at 73-75.) On November 11, 1994, Plaintiff filed a Request for Hearing, (R. at 78-79), and, on December 12, 1995, a hearing was held before Administrative Law Judge ("ALJ") Carolyn Cozad Hughes. (R. at 24-61.) On January 15, 1996, the ALJ issued her decision, finding that Plaintiff was not disabled. (R. at 8-16.)

 On March 15, 1996, Plaintiff filed a Request for Review of the ALJ's decision with the Commissioner's Appeals Council. (R. at 7.) On December 3, 1996, the Appeals Council denied Plaintiff's Request for Review, which action stands as the final decision of the Commissioner, (R. at 4-5), and which is the subject of the Cross-Motions now pending before the Court.

 Factual Background

 A. Plaintiff's Testimony

 At the December 12, 1995 hearing before the ALJ, Plaintiff--who testified through a Spanish interpreter--testified that he was then 46 years old, having been born on August 18, 1949, and that he completed four years of elementary school in Mexico. From 1979 to February 1992, he worked as a machine operator for a company that manufactured hydraulic jacks. He operated various machines that were used in the production process. The sitting, standing, walking, and lifting requirements of the jobs varied, depending on the machines to which he was assigned. (R. at 31-38, 50, 87.) After his back injury in February 1992, Plaintiff was off work until October 1992, at which time he returned to work at the company on light duty, which he continued to do until he was laid off on January 5, 1993, due to a reduction in force. (R. at 29, 32-34, 38, 83, 91, 255.) While on light duty, Plaintiff was assigned jobs in which he could sit or stand, at will, and in which he did not have to do any lifting. (R. at 34, 50.)

 In describing his medical problems, Plaintiff testified that he has had pain in his lower back since his February 1992 injury. He has the pain all the time but, about two or three times a week, it is severe. The pain is especially severe when he first gets up in the morning and when de does a lot of bending. Dr. Goldflies is his treating physician, but prior to two weeks before the hearing, he had not seen Dr. Goldflies within the eight-month period prior to the hearing because he does not have money to pay him. Dr. Goldflies has not recommended surgery, but has told Plaintiff that his condition will improve with the passage of time. (R. at 51-52.) Plaintiff takes over-the-counter Tylenol two or three times a day, which affords some relief, but not much. (R. at 39-42.)

 Plaintiff testified that he is able to walk about two blocks, but then has to stop and massage himself. He can stand, in one place, for 15 to 20 minutes, then must sit for 20 to 30 minutes. He then has to stand again, cannot bend, and believes that he can lift only about five to ten pounds. (R. at 42-43.) In describing his daily activities, Plaintiff testified that he gets up every morning at around 8:00 a.m. and looks for work every day, but that he does nothing in or around the house. He does drive his children to school, however. (R. at 42-46.)

 Plaintiff's wife, Sylvia Ortiz, also testified briefly. She testified that she works as a manager of a restaurant, with flexible hours. She verified that Plaintiff does nothing around the house--she does everything--but that he does go out often looking for jobs. She feels that his condition has worsened since November 1993 and that he is unable to do the plumbing, electrical, and carpentry work that he used to do prior to his injury. (R. at 52-54.)

 B. Testimony of Vocational Expert

 After hearing the testimony of Plaintiff and his wife, the ALJ examined Meyer Klein, an impartial vocational expert, concerning Plaintiff's vocational outlook considering the restrictions which she felt were supported by Plaintiff's testimony and the record. Plaintiff's attorney declined to ask any questions of the vocational expert. (R. at 60.) Mr. Klein testified that, considering Plaintiff's age of 46, lack of education, minimal fluency in English and his past work history of 14 years as a machine operator, there are jobs which he can perform, even if he has some difficulties with concentration, is unable to bend, stoop or kneel, and needs to be able to change positions every hour. (R. at 55-57.) With these restrictions, Mr. Klein testified that there are approximately 3,000 assembly jobs, 2,500 inspecting jobs and 1,500 parking jobs in the nine-county region around Chicago that Plaintiff could perform. (R. at 58.)

 Mr. Klein testified further that if Plaintiff were able to lift up to 20 pounds, could stand for only 30 minutes at a time before sitting down, and needed to be able to stand after sitting for an hour, he would be relegated to sedentary jobs, of which there are approximately 2,000 assembly jobs, 1,000 parking jobs and 500 inspecting jobs in the same regional area. (R. at 58-59.) Finally, Mr. Klein testified, if Plaintiff had the same restrictions set forth above, with the exception that he could lift only five pounds, the assembly jobs would be reduced to approximately 1,000, and the parking and inspecting jobs would be reduced to approximately 500 each. (R. at 59-60.)

 C. Vocational Assessment by Vocational Counselor

 On November 1, 1993, at the request of his worker's compensation attorney, Plaintiff underwent a Diagnostic Vocational Assessment by Cheryl R. Hoiseth, a vocational counselor. This was accomplished by interviewing Plaintiff regarding his work history and descriptions of the jobs he has performed and by entering that information into a computer for analysis. Plaintiff's descriptions of his past jobs were compared against job titles, descriptions and significant vocational characteristics of more than 12,000 jobs as they are commonly performed in the economy. Information concerning Plaintiff's medical history and restrictions, as well as his ability to perform reading and arithmetic computations and his lack of ability to communicate effectively in the English language also were considered.

 Ms. Hoiseth noted that Dr. Goldflies had limited Plaintiff to lifting no more than 20 pounds and that he should not engage in bending, stooping or kneeling activities. She also noted Plaintiff's statement that he could sit for thirty minutes at a time and stand/walk for thirty minutes at a time. She noted that even sedentary work requires the ability to sit for six hours out of a typical eight-hour work day. Therefore, she opined, Plaintiff would require a job in which he would basically sit down, but in which he could stand and move around at will during the work day. Because Plaintiff would also be preoccupied with positioning himself to avoid pain throughout the day, in her opinion, Ms. Hoiseth opined that Plaintiff's ability to concentrate on the task at hand would be compromised in any job. (R. at 150-161.) Finding that Plaintiff, "appears to be functionally illiterate and unable to ...


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