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RICE v. APFEL

May 20, 1998

EDWARD RICE, Plaintiff,
v.
KENNETH S. APFEL, Commissioner of the Social Security Administration, Defendant.



The opinion of the court was delivered by: LEVIN

MEMORANDUM OPINION AND ORDER

 Plaintiff Edward Rice seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") pursuant to 42 U.S.C. § 405(g). Plaintiff moves for summary judgment or for a remand to the Commissioner for further administrative proceedings. The Commissioner has filed a brief in support of the agency's decision, requesting affirmance of that decision. For the reasons set forth below, this court denies Plaintiff's motion for summary judgment, but grants Plaintiff's request for a remand.

 PROCEDURAL HISTORY

 Plaintiff protectively filed for Supplemental Security Income ("SSI") on April 11, 1994 and applied for Disability Insurance Benefits ("DIB") on April 19, 1994. *fn1" (R. 23, 119-21.) *fn2" Plaintiff alleged that he was unable to work because of disabling asthma, ulcer and sinus conditions which began December 30, 1989. (R. 119, 164.) Plaintiff was insured for purposes of entitlement to DIB through March 31, 1993. (R. 133.)

 Plaintiff's applications, and timely request for reconsideration, were denied by the Commissioner. (R. 122-26, 128-30, 193, 194.) Upon Plaintiff's timely request (R. 131), a hearing was held -- wherein Plaintiff was represented by an attorney -- before Administrative Law Judge Christine Holtz (the "ALJ") on September 29, 1995. (R. 46-97.)

 On February 23, 1996, the ALJ entered her decision. (R. 19-30.) The ALJ found that Plaintiff met the disability insured status requirements from December 30, 1989 until March 31, 1993. (R. 28.) Prior to March 31, 1993, the ALJ found, however, that Plaintiff was not disabled. (R. 29.) The ALJ found that, during that time, Plaintiff was not precluded from performing his past relevant work as a medical technician. (R. 29.)

 The ALJ further found that, beginning November 8, 1993, Plaintiff had a disability in that Plaintiff's asthma met the requirements of § 3.03B of the Listing of Impairments in Appendix I, Subpart P of the regulations. (R. 29.) The ALJ found, however, that as of December 7, 1994, the medical evidence established that Plaintiff's medical condition had improved and that Plaintiff had the residual functional capacity to perform the physical exertion requirements of medium work that did not involve exposure to significant amounts of pulmonary irritants. (R. 29.) The ALJ stated that as of December 7, 1994 Plaintiff could perform his past relevant work as a medical technician. (R. 29.)

 The ALJ's decision thus was that: (1) Plaintiff was not entitled to DIB or Medicare coverage because the ALJ first found Plaintiff to be disabled seven months after his insured status expired; and (2) Plaintiff was eligible for SSI benefits from November 8, 1993 to December 7, 1994 (with this eligibility ending with the close of February, 1995, the second month following the month in which the disability ceased). (R.24, 30)

 On April 9, 1997, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. (R. 4.) Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Plaintiff initiated this civil action for judicial review of the Commissioner's final decision.

 BACKGROUND

 I. PLAINTIFF'S TESTIMONY

 Plaintiff was born on February 19, 1945 and, therefore, was 50 years old at the time of the administrative hearing. (R. 119.) Plaintiff testified that he presently lived alone and took care of his own chores, grocery shopping and cooking. (R. 74-75.)

 From 1980 to 1983, Plaintiff worked at Chicago Rawhide. (R. 62.) That work required Plaintiff to be on his feet most of the day and to sometimes lift 50 pounds. (R. 63-64.) From about 1985 to 1987, Plaintiff worked at Crescent Wall making window frames. (R. 61.) This job required standing, walking and lifting from thirty to forty pounds. (R. 61-62.) Plaintiff also did some temporary factory work through Manpower. (R. 60, 90-92.)

 From December 1987 through October 1988, Plaintiff worked as a medical tech trainee at Elgin State Hospital. (R. 60.) As a medical tech trainee, Plaintiff checked up on and assisted patients and cleaned the facilities. (R. 60.) Plaintiff testified that, at his medical tech trainee position, his eight hour work day consisted approximately of one to one-and-a-half hours of sitting, one hour standing and four to five hours of walking. (R. 85-88.) Plaintiff testified that the job did not involve a lot of lifting, but that occasionally he would have to lift up to ten pounds. (R. 89.) *fn3"

 In May 1993, Plaintiff took a job at Omni Super Store. (R. 56.) Plaintiff's job at Omni consisted mostly of cleaning. (R. 56.) Plaintiff quit working at Omni after three weeks because he could not do the work there, e.g., he became short of breath. (R. 56-58.) Omni was Plaintiff's last income. (R. 56.)

 II. MEDICAL EVIDENCE

 Plaintiff's medical evidence reflects ulcer problems. In November 1990, Plaintiff was hospitalized for seven days with severe abdominal pain and was diagnosed with acute acid peptic disease on top of chronic peptic ulcer disease ("PUD"). (R. 197.) Plaintiff received medication upon discharge. (R. 197.) On April 17, 1991, Plaintiff suffered a recurrence of duodenal ulcer pain. (R. 210.)

 On August 30, 1991, Mohamed Rahman, M.D., reiterated Plaintiff's peptic ulcer diagnosis and reported that Plaintiff was "currently under control with medication." (R. 211.) In April 1992, Sanja Ivanovich, M.D., stated that, upon examining Plaintiff and reviewing his medical records, Plaintiff did not have "any physical condition or ...


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