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HERT v. BARNHART

December 13, 2002

LINDA HERT, PLAINTIFF,
V.
JO ANNE B. BARNHART, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Linda Hert ("Claimant" or "Hert") seeks judicial review of the final decision of the Commissioner of Social Security, Jo Anne Barnhart ("Commissioner"), denying Hert's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act, Titles II and XVI, 42 U.S.C. § 416, 423, 1381a. Hert claims the Commissioner's decision should be reversed because the Administrative Law Judge, John Mondi ("ALJ"), did not properly analyze the findings of the consulting psychologist, his determination of Hert's credibility was improper, and he failed to properly consider Hert's limitations on standing. Both parties now move for summary judgment. For the reasons stated herein, this Court affirms the Commissioner's decision, denies Hert's motion for summary judgment, and grants the Commissioner's motion for summary judgment.

I. RELEVANT FACTS

A. Hert's Hearing Testimony

On May 22, 2001, Hert testified before the ALJ at a Social Security Administration ("SSA") Hearing. R. 37-78. At the time of the hearing, Hert was 34 years old and lived with her parents and 14-year-old daughter. R. 38, 51. She graduated from high school and completed one year of vocational college. R. 38. Hert last worked for two full months, answering phones for Naperville Jeep, R. 40. She was terminated on November 4, 1999, due to a reorganization and received unemployment compensation. R. 40-41. Although she looked for part-time employment as a receptionist, she was unemployed at the time of the hearing. R. 39, 41. Her past employment experience included work as a receptionist, telemarketer, insurance verifier and mail room clerk. R. 38, 79.

Hert testified that she has been unable to work since November 4, 1999, because of pain in her back, right shoulder, neck, legs and numbness in her toes. R. 46. Hert first injured her back while working as a mail room clerk for Wilton Industries. R. 45. Although some heavy lifting was required at that job, she worked full-time from January 1992 through January 1996. R. 45, 122. Hert had her first back surgery in June 1993. R. 45. Because pain persisted after work hardening and physical therapy, Hert changed doctors and had a diskogram which revealed further back trouble. R. 45.

In July 1994, Hert had a metal cage surgically placed in her lower back. R. 45. During the procedure Hert tore her right rotator cuff. R. 45. The shoulder surgery and physical therapy delayed the back physical therapy, and her sciatica continued to worsen. R. 46,

Hert left Wilton and received workers compensation. R. 43. In September 1996, Hert began to work at Colar Dodge but was let go two months later. R. 43. Auto Auction in Bolingbrook temporarily hired her to replace an employee on maternity leave in December 1996. R. 43. That job required standing, sitting and walking up and down stairs. R. 43. She was let go in July 1997. R. 43. Hert received six months of unemployment. R. 43. Subsequent to the expiration of the unemployment, Hert worked as a telemarketer for Colorado Prime and a verification clerk for Americall. R. 41, 42, 44. She worked at Americall for fourteen months but found it increasingly difficult to sit for extended hours and eventually left to work at Naperville Jeep in September 1999. R. 42. After two months, Hert was let go due to internal reorganization. R. 42.

B. Medical Evidence

1. First Surgery

Claimant injured her back while lifting mail at work in 1993. R. 187. She underwent conservative treatment and after diagnostic testing in 1993 revealed a herniated disc, Claimant underwent a decompressive lumbar microdiskectomy. R. 188, 191-93, 229-30, 255, 300. She improved significantly post-operatively, but later developed pain when she returned to work and lifted heavy boxes. R. 262. Subsequent diagnostic testing revealed disc bulging at L3 . . . L4, but Dr. George E. DePhillips felt the disc bulge was not causing pain and reported surgery was not indicated. R. 267, 303-04. Dr. DePhillips released Claimant to return to work on regular duty as of January 1994. R. 307.

In May 1994, Claimant began seeing Dr. Scott D. Hodges, Chief of Spine Surgery at Loyola University Medical Center. His physical examination of Claimant was essentially normal. R. 528-30. CLaimant reported chronic disabling back pain since she returned to full duty work, lifting 40-50 pounds on a repetitive basis. R. 528. Despite Dr. Hodges' conclusion Claimant could continue working at her present job without surgery, he reported that she was likely to "spiral downward if her problem was not addressed appropriately." R. 531.

2. Second Surgery

Claimant elected to undergo a second surgery in July 1994, followed by physical therapy and work hardening. R. 398, 408-58, 524. She underwent an anterior lumbar diskectomy at L4-L5, and a spiral fusion at L4-L5. R. 312-14. Two weeks later, Claimant was "doing really quite well." R. 516. In January 1995, Claimant underwent right shoulder arthroscopy with repair of the rotator cuff which was injured during the spinal fusion surgery. R. 469-72.

In June 1995, Claimant underwent a functional capacity assessment in which she demonstrated the ability to lift 20 pounds occasionally at all three levels of lifting. R. 544. Claimant was able to sit for eight hours with no apparent limitations, stand for three to four hours and for 30 minutes at one time, and walk for seven hours. R. 544, 546-47. Claimant was able to occasionally bend and stoop. R. 546. Dr. Lorenz released Claimant to work with a permanent 20 pound lifting restriction. R. 555. He otherwise regarded her capabilities as consistent with the June 1995 functional capacity assessment. R. 553-54.

In July 1997, Claimant was seen for intermittent pain in her right leg. R. 561. She was diagnosed with an acute lumbosacral sprain, with "some worsening radiculopathy, now resolving." Id. Claimant returned to work ...


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