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BALENTON v. HALTER

March 30, 2001

EMMA BALENTON, PLAINTIFF,
V.
WILLIAM A. HALTER,[FN1] COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

I. PROCEDURAL HISTORY

On October 11, 1996, Plaintiff filed an application for a period of disability insurance benefits under §§ 216(i) and 223 of the Social Security Act alleging disability since July 25, 1995 due to bilateral carpal tunnel syndrome and cubital tunnel syndrome. Record ("R.") 14. Her initial application and reconsideration application were denied. R. 59-62, 65-67. Plaintiff requested and received a hearing before Administrative Law Judge ("ALJ") K. Michael Foley. On May 13, 1998, Plaintiff, represented by counsel, testified at the hearing on her own behalf regarding her claims. Pursuant to the ALJ's request, Vocational Expert Carl Triebold also testified. By written order dated August 25, 1998, the ALJ concluded that Plaintiff was not disabled as defined under the Social Security Act, finding that while Plaintiff's impairments prevented her from performing her past work, she was able to perform a significant number of other jobs within the national economy. R. 19. On October 26, 1999, the Appeals Council denied Plaintiff's request for review of the ALJ's decision. R. 7-8. Accordingly, the ALJ's decision stands as the Social Security Administration's final decision for purposes of judicial review. Plaintiff now seeks judicial review of the ALJ's decision.

II. FACTUAL BACKGROUND

A. Plaintiff's Testimony and Medical History

Plaintiff was forty-six years old at the time of her administrative hearing. R. 27. Plaintiff completed high school and a year and a half of college. Her past relevant work included a twenty-five year position with the Chicago Transit Authority ("CTA") as a ticket agent. Id. This position involved taking fares, giving directions, counting money, and punching or accepting 500 to 700 transfer tickets each day. R. 29, 30. In her past work Plaintiff was also required to carry money bags each day that weighed between ten and twenty pounds. R. 46. Plaintiff has not engaged in substantial gainful activity since July 25, 1995. R. 37. In January 1996, she retired from the CTA. R. 28.

At the administrative hearing, Plaintiff described her impairments and symptoms as follows. In early 1995, Plaintiff began experiencing pain and tenderness in her thumbs which got progressively worse. R. 29. The pain and swelling in her fingers and palms (of both hands but predominantly her right hand) severely limited her ability to grip. R. 30-31. Plaintiff tries to not to lift anything in excess of three pounds. R. 40. She engages in therapy that includes flexing and working with putty. R. 42. Because she lives alone, Plaintiff attends to her own household chores; however, she experiences pain by the end of the day. R. 35-36. Her chores include mopping, vacuuming, laundry, and personal grooming. R. 35, 43. Plaintiff has adjusted her lifestyle to accommodate her impairments in the following ways: keeping her hair cut short so that it is easy to style; utilizing plastic cups so as not to worry about dropping and breaking dishes; cooking ready-made meals or using lightweight cookware; grocery shopping with a companion; and driving only once or twice a week within her immediate neighborhood. R. 36, 40-43.

Medical records received as evidence revealed the following. As early as April 1995, Plaintiff complained to her doctor about right hand discomfort. R. 172. Early medical entries document Plaintiff's use of a right wrist splint. R. 15. Beginning in June 1995, Plaintiff began treatment with an orthopaedic physician, Samuel Chmell, M.D.R. 30, 172. On June 19, 1995, Dr. Chmell noted that Plaintiff was experiencing "persistent pain along the volar aspect of the right thumb." R. 166. Dr. Chmell diagnosed Plaintiff with "flexor tendinitis of the right thumb, possibly associated with carpal tunnel syndrome." Id. Because Plaintiff's condition was exacerbated with "repetitive activities" and her job required that she use her dominant right hand to repeatedly stamp/punch ticket transfers, Dr. Chmell recommended that Plaintiff change her job. R. 37, 166. In August 1995, Dr. Chmell reported that recent tests revealed that Plaintiff experienced "changes consistent with mild bilateral carpal tunnel syndrome." R. 162. He also reported that Plaintiff's right hand had been relieved by wearing a splint and being off work for the past month. Id.

In October 1995, Dr. Chmell noted that Plaintiff was receiving physical therapy and again recommended that Plaintiff change her job. R. 160. Plaintiff, however, testified at the hearing that even after she stopped working she has not noticed any significant improvement in her condition. R. 35.

In November 1995, when Plaintiff complained she was not improving, Dr. Chmell referred her to Dr. Gonzalez for consideration of surgery. R. 157. On December 14, 1995, Plaintiff underwent carpal tunnel release surgery. R. 16. She testified at the hearing that her December 1995 surgery helped her condition only temporarily. R. 31. According to Plaintiff, her disappointment in the first surgery caused her to decline surgery on her left hand. R. 32. Her doctor's notes, however, reveal the following: on December 20, 1995 Plaintiff reported some relief of her symptoms; on December 27, 1995, Dr. Chmell reported Plaintiff as doing "exceedingly well;" on March 15, 1996, Plaintiff reported having only a little discomfort, her strength was greatly improved, her range of motion was within normal limits, and she was capable of performing functional activities at home. R. 129,141,142. Plaintiff's March 1996 medical progress notes and physical therapy notes indicate that her right hand was doing well at that time, that she only had a little discomfort, and that her strength had greatly improved. R. 129, 130. In June 1996, Dr. Gonzalez reported that since her surgery, Plaintiff has experienced much improvement with total resolution of her symptoms. R. 125.

Plaintiff's symptoms eventually ran up into her right elbow, and on October 16, 1996, Dr. Gonzalez diagnosed her with mild cubital tunnel syndrome. R. 122. At that time, Dr. Gonzalez recommended that Plaintiff wear elbow splints at night during sleep to immobilize her arms to relieve the pressure that caused her pain. R. 32-34, 121. On November 14, 1996, Ernest C. Bone, M.D., a state agency evaluator, undertook an independent review of the record evidence to date and opined that Plaintiff's exertional limitations were consistent with medium work activity. R. 86-93. Neither before nor after Dr. Bone's assessment have any of Plaintiff's treating physicians expressly opined that she is unable to work. R. 18.

B. Vocational Expert's Testimony

Vocational Expert Michael Triebold reviewed the documents pertaining to Plaintiff's case prior to the hearing and was present at the hearing during Plaintiff's testimony. R. 45. The ALJ asked the vocational expert hypothetical questions about Plaintiff, her alleged symptoms, and her ability to perform work to assist him in deciding her claim for disability benefits. The first hypothetical question was as follows:

Please assume that I might find from all of the evidence in this case that this claimant is of her stated age, that she has the education to which she's testified and that she has the past relevant work experience you've just identified. Please also assume that I might find that she has the residual functional capacity to perform a full range of light work as that's defined in the applicable Social Security Regulations, except that she would do no jobs requiring the repetitive use of either of her hands or fingers on either hand. That she would be limited to the occasional use of her upper extremities. Under this hypothesis, could she return to her past relevant work?

R. 47. The vocational expert responded in the negative, explaining that occasional use of the hands, defined by the expert as "up to one third of the day," would "eliminate all occupations." R. 47-48. However, the expert thereafter noted that his response assumed that Plaintiff worked with her ...


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