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ALLEN v. BARNHART

April 10, 2003

SHANNON C. ALLEN, PLAINTIFF,
v.
JO ANNE B. BARNHART, COMMISISONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Shannon C. Allen, ("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") and Supplemental Security Income ("SSI") 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 May 20, 2002. See 28 U.S.C. § 636 (c); Fed.R.Civ.P. 73.

I. BACKGROUND

Plaintiff filed for DIB (Tr. 98) and SSI (Tr. 255) on August 9, 2000, alleging disability on October 13, 1999. (Tr. 98, 255). Plaintiff's application for benefits was denied on January 10, 2001. (Tr. 63). On January 22, 2001, Plaintiff filed a request for reconsideration. (Tr. 67). Plaintiff's request for reconsideration was denied on March 28, 2001. (Tr. 69). Plaintiff then filed a request for a hearing before an Administrative Law Judge ("All") on June 12, 2001. (Tr. 72). Plaintiff appeared, with counsel, before an ALJ on October 4, 2001. (Tr. 19). In a decision dated January 25, 2002, the ALJ found that Plaintiff was not entitled to DIB or SSI. (Tr. 18). On January 28, 2002, Plaintiff requested a review of the ALJ's decision by the Appeals Council. (Tr. 8). On March 1, 2002, the Appeals Council denied Plaintiff's request for review. (Tr. 6).

II. FACTS

Plaintiff was born on March 12, 1970 (Tr. 25) and was thirty-one years old at the time of her October 2001 hearing. (Tr. 19). According to her own testimony, Plaintiff graduated from high school in 1989. (Tr. 25). Throughout grade school, middle school, and high school, Plaintiff was enrolled in special education classes. (Tr. 26). Plaintiff stated that, although she can write, her spelling is really bad and she is unable to do math in her head.*fn1 (Tr. 26). Plaintiff stated she is a slow learner and has processing problems, which is why she was in special education classes. (Tr. 36). At the time of her hearing, Plaintiff, married with no children, was living with her husband. (Tr. 24).

From 1993 to 1999 Plaintiff worked in an assembly plant wherein she did some bench assembly work. (Tr. 27). Plaintiff's job responsibilities included looking at parts used in bench assembly and determining if there were any scratches on those parts, and if there were, separating those parts from the good parts on the assembly line. (Tr. 27). Plaintiff's job at the bench assembly plant required her to occasionally lift twenty pounds. (Tr. 28).

Prior to Plaintiff's job at the bench assembly plant, Plaintiff worked at Taco Bell and at a grocery store. At Taco Bell, Plaintiff cleaned tables and picked up garbage from the tables. (Tr. 28). Generally, Plaintiff had no interaction with customers at Taco Bell. (Id.). At the grocery store, Plaintiff bagged groceries and assisted in organizing the shopping carts in the parking lot and returning them to the store. (Tr. 29).

Plaintiff suffers from seizures which Plaintiff alleges prevents her from working. Plaintiff testified that when she has a seizure she starts to "shake a little and, and just kind of like right leg goes up in the air and [her] arm goes to the left and [her] head turns cock-eyed and [Plaintiff is] like shaking, but [Plaintiff] can hear what's going on." (Tr. 31). Plaintiff's seizures generally last between a minute to two minutes but sometimes longer. (Id.). After five or ten minutes, Plaintiff stated she has to calm herself down and think of good things before she returns to normal. (Tr. 32). Plaintiff suffers from the seizures described above a couple of times during the week. Based on Plaintiff's testimony, it appears that Plaintiff suffers from the seizures mainly at night when she lies down for bed, but on occasion Plaintiff will suffer a seizure during the day. (Tr. 33). Aside from having the physical symptoms described above a couple times a week, Plaintiff stated that at times when she is talking she becomes jittery and her hands begin to shake and she has to calm herself down. (Id.). Plaintiff attempts to control her seizures by removing herself from stressful situations and just sitting. (Id.).

At the time of her hearing, Plaintiff was taking Dilantin four times daily, even though five times daily was the recommended amount. (Tr. 37). Plaintiff stated because of her financial situation she was only able to take the medication four times daily and that she was always consistent in taking her medication four times daily. (Id.). At one time Plaintiff did take her medication five times daily and the additional dosage did make "somewhat" of a difference. (Tr. 38). The biggest difference, Plaintiff stated, was the additional dosage slowed down the frequency of her seizures. (Id.).

On a regular day Plaintiff watches t.v. or has friends over to talk. (Tr. 42). Plaintiff's husband does all the housecleaning, aside from folding clothes. (Id.). In fact, based on Plaintiff's testimony, Plaintiff's husband does all the cooking, cleaning, laundry, and grocery shopping. (Tr. 42-43). On occasion Plaintiff goes with her husband to the grocery store but only if he is getting a few items because Plaintiff really cannot stand long on her feet. (Tr. 43).

In addition to her seizure medication, Plaintiff stated she takes medication for arthritis. (Id.). Plaintiff's arthritic pain is generally located in the back of her right calf (Id.). The pain in her calf usually occurs when Plaintiff is walking or standing for longer than five minutes. (Tr. 44). After five minutes of walking, Plaintiff testified her legs get weak and she has to sit. (Id.). However, after sitting for a while, Plaintiff has a hard time standing because she is unable to gain her balance and needs support to get up. (Id.).

Plaintiff's husband, Jimmy Allen, appeared before the ALJ at Plaintiff's October 2001 hearing. (Tr. 47). Plaintiff's husband testified that he works from seven in the morning to three-thirty in the afternoon Monday through Friday. (Id.). Because of his hours, Plaintiff's husband generally does not see his wife in the morning, because she is sleeping, but rather sees her only when he gets home from work. (Tr. 48). Plaintiff's husband testified that during the night Plaintiff suffers from seizures whereby, when she lays down, Plaintiff goes to the right and her leg goes straight up, and her arm goes another direction and she foams at the mouth. (Tr. 48-49). Aside from the physically apparent seizures, Plaintiff's husband testified that daily he has to remind Plaintiff of things they talked about and recently said and that Plaintiff's appeared to be in a daze. (Tr. 49). Plaintiff's husband stated that he has to remind Plaintiff to take her medication, remind her about conversations they had, and remind her of peoples' names. (Tr. 50).

In addition to her seizures, Plaintiff's husband testified that Plaintiff cannot get up once sitting. (Tr. 51). Plaintiff's husband has to help Plaintiff up from a chair and walk with her because her legs tend to give out. (Id.). Plaintiff's husband testified that Plaintiff's inability to stand up after sitting had been going on since Plaintiff's accident, four years prior to the hearing. (Tr. 52). When asked about the accident, Plaintiff's husband stated it occurred when Plaintiff was real sick and Plaintiff and her husband were going to go to the doctor but before they left Plaintiff went into the bathroom. (Id.). The next thing Plaintiff's husband heard was a "big `ole bang" and the door flew open and Plaintiff was lying on the floor having a seizure. (Id.). Plaintiff's husband stated Plaintiff had been having small seizures prior to this accident but when she hit her head she had a Grand Mal seizure and it was then that Plaintiff was diagnosed with possible multiple sclerosis.

Vocational expert, Ron Gebrig, appeared before the ALJ at Plaintiff's October 2001 hearing. (Tr. 55). The ALJ directed Mr. Gehrig to assume an individual of Plaintiff's age, with twelve years of education, albeit special education, who is "not fully literate . . . [but] can lift up to 20 pounds occasionally, 10 pounds frequently, . . . sit for six to eight hours . . . stand six hours out of an eight hour day, she can walk occasionally and then for short distances, she cannot climb, she cannot operate dangerous moving machinery, she cannot perform detailed or complex tasks, she cannot work with the public." (Tr. 56). Based on the hypothetical, Mr. Gehrig stated such a person could perform: as a food preparer (5, 384 jobs in Illinois), an assembler and light assembly (7, 999 jobs in Illinois), as a production assembler (13, 399 jobs in Illinois), or as a hand packager/packer (13, 003 jobs in Illinois). (Id.). When asked to modify the hypothetical to assume a person who can sit an unlimited amount but who could stand or walk for no more than five minutes, Mr. Gehrig initially responded that no jobs were available for a person with such limitations. (Tr. 57). However, after apparently assuming the hypothetical only allowed for light work and not sedentary work, Mr. Gebrig changed his answer to allow a person with such limitations to perform as an assembler under sedentary conditions (8,291 jobs in Illinois), as a production inspector (1,797 jobs in Illinois), and as a sedentary hand packer/packager (250 jobs in Illinois). (Id.). When asked by the ALJ to include a further limitation that the hypothetical person could not maintain attention for a fifteen minute, Mr. Gehrig replied "I don't think 15 minutes — we're not talking any dangerous jobs here at all. I don't believe that would have any." (Tr. 58). However, when asked to assume the hypothetical person "spaces out" on a regular or continuing basis, Mr. Gehrig testified that no jobs exists for a person with such limitations. (Tr. 58).

III. MEDICAL HISTORY

The earliest medical record available to the Magistrate Judge is dated October 14, 1999. (Tr. 189). On this date, Plaintiff saw Dr. Youngsook Park, of Centegra Health System, for a consultation. (Id.). Dr. Park reported that Plaintiff, in 1998, hit her head on a doorknob on the right temporoparietal frontal area. (Id.). A CT scan of the head and BEG, taken at the time of her injury,*fn2 were normal. (Id.). Dr. Park reported, after examining Plaintiff, Plaintiff had no evidence of papilledema,*fn3 had brisk reflexes and no Babinski sign.*fn4 (Id.). Dr. Park noted evidence of ataxia and that Plaintiff most likely had a focal seizure involving the right side in the upper and lower extremities. (Id.). Dr. Park ultimately recommended a MRI of Plaintiff's head be taken and that Plaintiff should continue to take Dilantin*fn5 and keep the Dilantin level between 10 and 20. (Id.).

The following day, Plaintiff saw Dr. John Guido, a radiologist also with Centengra Health System. (Tr. 191). After Plaintiff had a scan of her brain done, Dr. Guido reported that bilateral various sized low T1, high T2, and FLAIR signal white matter lesions were present. (Id.). Some of the lesions were periventricular while others were deeper white matter with the largest lesion measuring 1 cm. (Id.). Dr. Guido also reported Plaintiff's cerebrum, cerebellum, and brain stem signal pattern were normal and that there was no extra axial collection or hemorrhage. (Id.). Additionally, there was no mass effect or enlargement of the ventricles with slight ventricular asymmetry and flow void in the basilar, and internal carotid arteries were compatible with vascular patency. (Id.). Dr. Guido's impressions noted Plaintiff had bilateral altered white matter signal involving ...


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