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SMITH v. APFEL

November 2, 1999

CLINT SMITH, PLAINTIFF,
v.
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Denlow, United States Magistrate Judge.

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on cross-motions for summary judgment. The issue to be decided is whether there is substantial evidence in the record to support the ALJ's conclusion that Smith is not disabled. For the reasons set forth below, the Court grants Defendant's motion for summary judgment, denies Smith's motion, and affirms the ALJ's decision.

I. FACTUAL BACKGROUND

A. Testimony

1. Smith's Testimony

Smith appeared with counsel and testified at a hearing before the ALJ on April 14, 1997. (A.R. at 40-101.) Smith was approximately 61 years old at the time of the ALJ's decision. (A.R. at 23, 48.) Smith has a ninth grade education and can read and write. (A.R. at 23, 117.) Prior to receiving disability benefits, Smith was employed from 1960-1984 at a plating company, first as a semi-skilled laborer for twelve years and then as a foreman for twelve years. (A.R. at 52.) His duties included operating a conveyor and a forklift, supervising others, working with chemicals, and completing reports. (A.R. at 23, 52.) His position required him to be on his feet eight hours at a time, to lift weights as much as 100 pounds, and to constantly bend, reach, and lift. (A.R. at 53.) The position is classified as semi-skilled, heavy exertional work. (A.R. at 23.)

Smith stopped working at the plating company in 1985. He then received unemployment benefits for approximately six to twelve months. (A.R. at 56.) Subsequent to receiving unemployment benefits, he received public aid for about two and one-half years and worked for a three month period for the City of Chicago during 1986 or 1987. (A.R. at 23, 57.) After public aid, he received Social Security disability benefits starting in 1988.

Smith's testimony was confused. He first testified that he went on disability for alcoholism in 1985, (A.R. at 42) but later stated that the disability payments started in 1988. (A.R. at 47.) He then testified that he was drinking at the time disability benefits were awarded in 1985. (A.R. at 42.) When the ALJ asked when he had stopped drinking, Smith stated that he had quit drinking "in the early 80's," (A.R. at 43) but later claimed he stopped drinking in 1987 except for three or four beers a week. (A.R. at 44). He changed his story a third time and then stated that he quit drinking at the end of 1988, except for three beers a week. (A.R. at 47.)

Smith claims that he is disabled because he has an ulcer, cirrhosis of the liver, and arthritis. (A.R. at 58.) He stated that he saw his treating physician, Dr. James P. Baraglia, four to five times a year for hypertension. (A.R. at 60.) He further mentioned that his shoulders and knee are "shot" and that his arthritis hurts "all over." (A.R. at 61-62.) He has had an inverted right ankle his entire life. (A.R. at 62.)

He claims he has severe pain, a 6 on a scale of 1 to 10, two to three times a week, depending on the position of his body. (A.R. at 65.) He explained that his back only experiences severe pain when he bends over (A.R. at 84) and his shoulders only hurt when he turns his arms or raises them above shoulder level. (A.R. at 87.) The rest of the time, his pain is mild. (A.R. at 68.)

He takes six extra strength "non-aspirin" a day to relieve his arthritis pain when it is severe, (A.R. at 66) which reduces his pain to a moderate level, a 4 on a scale of 1 to 10. (A.R. at 67.) His doctor has not prescribed any prescription medicine for his pain. (A.R. at 67.) He takes three tablets a day for high blood pressure, which controls his blood pressure most of the time, although he claims to get "woozy" when he bends over. (A.R. at 69.)

He has pain from his ulcer two or three times a week that is controlled by taking non-aspirin. (A.R. at 70.) He was unable to describe any way in which the cirrhosis of the liver limited him from working. (A.R. at 70.)

He is able to stand in place for twenty to twenty-five minutes with no problems. (A.R. at 72.) He takes a daily walk for three to four blocks. (A.R. at 72.) He is able to walk five blocks, stopping a couple times along the way to catch his breath. (A.R. at 74.) He is able to sit for twenty-five to thirty minutes before his back gives him "a problem." (A.R. at 74.) He does not need to elevate his legs. (A.R. at 83.) He sits and watches television for a half hour at a time, walking around for about the time of three commercials before he resumes watching television again for another thirty minutes. (A.R. at 82.) He regularly attends an hour long church service. (A.R. at 76.)

He does his own grocery shopping and picks up fifteen to twenty-pound bags of groceries. (A.R. at 74.) He claimed that the maximum he could lift was fifteen to twenty pounds with one hand, (A.R. at 75) and that he could probably lift up to thirty pounds with two hands. (A.R. at 86.) He has no problem lifting fifteen to twenty-pound grocery bags. (A.R. at 86.) Lifting over fifty pounds bothers him. (A.R. at 86.)

Smith cooks and cleans his three room apartment, (A.R. at 78) although he takes a break every eight to ten minutes because his elbows hurt. (A.R. at 81.) He walks to the basement of his apartment building to do his own laundry. (A.R. at 78.) He takes the El train to visit relatives, however, he has no hobbies. (A.R. at 79-80.) He eats one to two meals a day and sleeps about six hours a night. (A.R. at 79.)

Smith claims he is hard of hearing, however, this condition does not affect his listening to the television, radio or talking in a regular conversation. (A.R. at 90-91.) Smith visited an ear doctor ten or twelve years ago, but he never returned and was never diagnosed for a hearing aid. (A.R. at 96-97.)

Finally, Smith testified that his condition has not changed significantly in the past two years, nor did it change significantly between December 1996 and February 1997, the dates of the two residual functioning capacity assessments performed by his treating physician, Dr. Baraglia. (A.R. at 89.)

2. The Vocational Expert's Testimony

Julie Rose, the Vocational Expert ("VE"), also testified at the hearing. (A.R. at 58, 92-101.) The VE stated that Smith's past work was classified as semi-skilled with an SVP of six, and that the exertional level was heavy in physical demand. (A.R. at 58.)

The ALJ asked the VE to give her opinion under three hypothetical situations, taking into consideration Smith's age, education, and work experience. Under the first hypothetical, the VE was asked to consider Smith's capabilities as set forth in Dr. Baraglia's December 16, 1996 residual functional assessment. (A.R. at 92.) The VE opined that, given the parameters of the hypothetical, Smith could not do his past relevant work, had ...


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