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ORANGE v. BARNHART

April 3, 2003

GERTRUDE ORANGE, PLAINTIFF,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: P. Michael Mahoney, Magistrate Judge United States District Court

MEMORANDUM OPINION AND ORDER

Gertrude Orange, ("Plaintiff'), seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner"). See 42 U.S.C. § 405 (g), 1383(c)(3). The Commissioner's final decision denied Plaintiff's application for Disability Insurance Benefits ("DIB") pursuant to Title XVI of the Social Security Act (the "Act"). 42 U.S.C. § 1381 (a). This matter is before the Magistrate Judge pursuant to consents filed by both parties on July 30, 2002. See 28 U.S.C. § 636 (c); Fed.R.Civ.P. 73.

I. BACKGROUND

P. MICHAEL MAHONEY, United States District Magistrate Judge

Plaintiff filed for DIB on March 8, 1999, alleging disability since August 12, 1998. (Tr. 14). Plaintiff's application for benefits was denied on April 30, 1999. (Tr. 62). On June 25, 1999, Plaintiff filed a request for reconsideration. (Tr. 66). Plaintiff's request for reconsideration was denied on October 28, 1999. (Tr. 67). Plaintiff then filed a request for a hearing before an Administrative Law Judge ("ALJ") on December 23, 1999. (Tr. 71). Plaintiff appeared, with counsel, before an ALJ on July 27, 2000. (Tr. 36). In a decision dated September 27, 2000, the ALJ found that Plaintiff was not entitled to DIB. (Tr. 19). On November 30, 2000, Plaintiff requested a review of the ALJ's decision by the Appeals Council. (Tr. 10). On January 24, 2002, the Appeals Council denied Plaintiff's request for review. (Tr. 7-8).

II. FACTS

Plaintiff was born on June 9, 1949 and was fifty one years old at the time of her July 27, 2000 hearing before the ALJ. (Tr. 40). Plaintiff has completed her education through the eighth grade, although she apparently attended the ninth grade but did not complete it. (Tr. 40-41). Plaintiff alleges that she can read but cannot write very well because she cannot spell. (Tr. 41). At the time of the hearing, Plaintiff, married with three older children, was living with her husband. (Tr. 40).

Plaintiff alleges disability since August 12, 1998. (Tr. 41). In December 1999, the week prior to Christmas, Plaintiff worked through Manpower, a placement agency. (Id.). Plaintiff only performed warehouse work through Manpower for one week because she was injured on the job. (Id.).

Prior to Manpower, in 1998, Plaintiff was a machine operator at New Breathe through West Personnel. (Tr. 42). Plaintiff's job at New Breathe involved standing and lifting items under twenty pounds. (Tr. 42-43). Plaintiff's job at New Breathe lasted only three months because Plaintiff injured both her shoulders on the job. (Tr. 43). In 1995, prior to her job at New Breathe, Plaintiff worked for Community Care System. (Tr. 41). When asked what Plaintiff did at Community Care System, Plaintiff responded "[h]ome care." (Tr. 42). Later in her testimony, Plaintiff elaborated on her responsibilities when she stated she would help older patients with their medication, assist patients with their grocery shopping, and once a week assist with laundry. (Tr. 44). Plaintiff's responsibilities at Community Care System did not require her to lift anything above twenty pounds. (Id.). Plaintiff's job at Community Care System lasted two years and ended because of medical reasons. (Id.). Specifically, Plaintiff stated her medical reasons consisted of a combination of things including problems with her back and personal illness. (Id.).

Plaintiffs physical problems are many. Plaintiff indicated that her primary problems stem from shoulder surgery on both shoulders and her back injury. (Tr. 44). In March 1999 Plaintiff had shoulder surgery on her right shoulder, followed by months of treatment, and then in June 1999, Plaintiff had shoulder surgery on her left shoulder. (Tr. 44-45). As a result of these surgeries, Plaintiff testified that she is unable to do much lifting or reaching over her head. (Tr. 44). Additionally, Plaintiff is unable to walk very far or stand very long because of nerve problems with her left leg, which was a result of her back injury. (Tr. 45). Specifically, Plaintiff testified that before her back injury, in December 1999, she was able to walk twenty blocks with no problem and now it takes Plaintiff one hour to walk six blocks. (Id.). Plaintiff also indicated she can stand only ten or twenty minutes before she must sit because of her back pain and she is unable to climb stairs without experiencing pain. (Tr. 47). Finally, Plaintiff cannot stoop or bend because she is unable to straighten herself out after bending or stooping due to her back pain. (Id.). To combat the pain, Plaintiff testified she takes Naprosyns four times daily in addition to aspirin. (Tr. 47-48).

Plaintiffs day to day activities are limited because of her pain. Plaintiff indicated that, although she does take care of things around the house, she does those activities "slowly" and "little by little." (Tr. 49). Plaintiff indicated that she has problems cleaning the house because it is painful to go up and down the stairs. (Id.). Additionally, although Plaintiff testified she has problems reaching over her head, she indicated she is able to dress herself with no help. (Tr. 50).

Vocational expert, Lee Knutson, appeared before the ALJ at Plaintiff's July 2000 hearing. (Tr. 55). The ALJ directed Mr. Knutson to assume an individual with Plaintiff's vocational characteristics and the following limitations: the "individual . . . being right hand dominant . . . and being of the age of 51 years. Having a 9th grade education as well as limited ability in spelling[,]" and having the residual functional capacity ("RFC") for "light work with the restriction against overhead lifting." (Tr. 56). Mr. Knutson, in response, indicated that a person with such limitations could return to some of her machine operator positions, which Mr. Knuston stated ranged from unskilled to semiskilled and light to medium, and she could also perform the job of a homemaker, unskilled and light. (Id.). When asked to assume the hypothetical person was further limited to standing only ten to twenty minutes at a time and being able to walk only six blocks, Mr. Knutson stated that such an individual would be able to "do some machine operator positions with a sit/stand option, which would significant [sic] reduce the number that she could do." (Id.). Specifically, in the local economy, Mr. Knuston indicated there are fifteen thousand (15,000) machine tenders or machine operators that are in the light category, with the number reduced by 60% because of the sit/stand option. (Tr. 57). Additionally, with such limitations, the homemaker position would be eliminated. (Tr. 57).

In terms of other employment, Mr. Knutson indicated that because of Plaintiff's limitations she could probably perform sedentary positions such as an information clerk, but due to the problems with her shoulders, Plaintiff would not be able to do most assembly positions or most machine tending positions. (Id.). Additionally, because of her standing restrictions, Plaintiff would be eliminated from many light work jobs because they require Plaintiff to be on her feet. (Id.). Overall, Mr. Knutson indicated that "there would be very few jobs that [Plaintiff] could do." (Id). However, Mr. Knuston did indicate Plaintiff could probably perform the duties of receptionist/ information clerk (6,000 jobs in Chicagoland area) where she was able to sit/stand at her discretion. (Id.).

III. MEDICAL HISTORY

On August 16, 1999, Plaintiff filled out the Bureau of Disability Determination Services Activities of Daily Living Questionnaire. (Tr. 119). When asked about whether Plaintiff performs certain activities and, if so, how often, Plaintiff responded "some" to driving, reading, going to church, watching t.v., talking on the phone, paying bills, and going out to eat. (Tr. 121). However, Plaintiff also indicated that she feels pain in her shoulder during all those activities. (Id.). Plaintiff responded "rarely/never" to watching children, fixing things, playing cards, having hobbies, going to sports events, talking to neighbors, volunteering, going to movies, or going to school. (Id.).

The earliest medical record available to the Magistrate Judge is dated August 28, 1998. (Tr. 147). On that date, Plaintiff saw therapist Karen K.*fn1 ("Karen")of the Paulson Rehab Network. (Id.). Karen indicated Plaintiff had anterior pain and crepitus in both shoulders with a pain intensity of 3-10 out of 10 in her left shoulder and a pain intensity of 7-9 out of 10 in her left shoulder. (Id.). The objective evidence revealed flexion of one hundred forty degrees and one hundred forty five degrees in her right and left shoulder respectively. (Id.). The report also indicated extension of thirty seven degrees in Plaintiff's right shoulder and extension of forty four degrees in her left. (Id.). Plaintiff's abduction was one hundred seventy degrees in her right shoulder and one hundred forty five degrees in her left. (Id.). Karen indicated Plaintiff's rehab potential was "good" and recommended continued treatment. (Id.).

Plaintiff saw Karen again on September 10, 1998. (Tr. 146). Karen reported that Plaintiff felt no pain in her left shoulder but had continued pain in her right. (Id.). The objective evidence revealed flexion of one hundred fifty degrees in Plaintiff's right shoulder, which "was a ten degree increase from Plaintiff's August 28, 1998 visit, and flexion of one hundred seventy five degrees in Plaintiff's left shoulder, which was a thirty degree increase from Plaintiff's August 28, 1998 visit. (Id.). Plaintiff's extension in her right shoulder increased three degrees, while the extension in her left shoulder remained the same. (Id.). The only noted decrease from Plaintiff's August 28, 1998 visit was her forty four degree decrease in abduction of her left shoulder. Plaintiffs abduction in her right shoulder increased thirty five degrees from her August 28, 1998 visit. (Id.). Karen again recommended continued treatment as it appeared Plaitniffs rehab potential was "good." (Id.).

Plaintiff saw Karen a week later on September 17, 1998. (Tr. 145). Karen reported that Plaintiff denied any pain in her left shoulder but did note a "popping" when Plaintiff performed certain motions with her shoulder. (Id.). Plaintiff continued to note pain in her right shoulder, but the pain intensity decreased to a 3 out of 10. (Id.). Plaintiff's objective medical evidence did not change from the findings on September 10, 1998. (Id.).

Plaintiff saw Karen again on September 25, 1998. (Tr. 144). The September 25, 1998 makes no reference to Plaintiff's left shoulder; rather, the report focuses on Plaintiff's right shoulder. (Id.). Karen reported Plaintiff has pain that radiates throughout her shoulder when she reaches forward or when she drives. (Id.). Plaintiff's pain intensity in her right shoulder was a 3-5 out of 10. (Id.). The medical evidence revealed Plaintiff's flexion was one hundred fifty one degrees and her abduction was one hundred forty degrees. (Id.). Karen's assessment of Plaintiff indicated that Plaintiff was showing slow improvement but that her rehab potential remained "good." (Id.).

Plaintiff saw Karen again on September 30, 1998 and November 13, 1998 (Tr. 142-143). Karen's reports indicated no change in Plaintiff's subjective or objective medical evidence from prior medical reports. Plaintiff continued to have no pain in her left shoulder, although there was sides, with the right being worse than the left. (Id.). Plaintiff had a positive arc of pain on the right side and some subacromial crepitations that were not present on her left side. (Tr. 171).

In regards to strength testing, Dr. Marra reported Plaintiff demonstrated 4/5 strength testing in the right arm in abduction, external rotation and internal rotation, and was rate 5-/5 in abduction, external rotation and internal rotation in her left shoulder. (Id.). Plaintiff had no evidence of an apprehension sight, and did not have any increased glenohumeral translation. (Id.). Plaintiff's cervical spine was examined, which demonstrated full range of motion, with a negative Spurling's test. X-rays of Plaintiff's shoulders revealed no evidence of any calcific deposits in either shoulder. (Id.). ...


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