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BLACKWELL v. BARNHART

April 23, 2003

BRENDA BLACKWELL, PLAINTIFF,
v.
JO ANNE B. BARNRART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff Brenda Blackwell ("Claimant" or "Plaintiff") seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner"), Jo Anne B. Barnhart, denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et. seq. This case comes to the Court on cross motions for summary judgment. Plaintiff raises the following issues: 1) whether the ALJ erred in crediting one psychiatric expert over another, 2) having found that Claimant often had deficiencies in concentration, persistence, and pace, whether the hypothetical posed to the vocational expert properly accounted for those limitations, and 3) whether the ALJ erred in finding that the Claimant did not meet the requirements of Commissioner's Listing 12.05C. For the reasons stated below, the Claimant's motion for summary judgment is granted and the Commissioner's motion for summary judgment is denied.

II. BACKGROUND

A. PROCEDURAL HISTORY

Plaintiff filed her application for SSI in July 1998, R. 31, claiming that she was unable to work after May 1, 1996 due to back problems, pancreatitis, and high blood pressure. R. 33. Plaintiff's application was denied on August 7, 1998, R. 33, and she filed a timely request for reconsideration August 17, 1998, R. 37, which was also denied. R. 38. Plaintiff requested an administrative hearing on September 23, 1998. R. 41.

A hearing was held by ALJ Robert C. Asbille on September 15, 1999, R. 297, and a supplemental hearing was held on November 17) 1999. R. 323. Claimant appeared and was represented by counsel at the hearing. R. 297. Claimant and a vocational expert, Frank R. Mendrick, ("VE" or "Mendrick") testified at the hearing. R. 303, 317. Claimant was not present at the supplemental hearing because she had obtained a part-time job and was working, but she was represented by counsel. R. 325. Dr. William Fischer, Ph.D., the medical expert ("ME"), and Grace Gianforte, another vocational expert ("VE") testified at the supplemental hearing. R. 323, 332, 343.

The ALJ issued a decision on April 25, 2000 finding that Claimant was not disabled. R. 17-30. Claimant timely requested a review of the ALJ's decision by the Appeals Council, R. 12, which was denied on January 10, 2002. R. 6. Thus, the ALJ's decision is the final decision of the Commissioner. Plaintiff filed a timely complaint with this Court on March 13, 2002, and jurisdiction is proper pursuant to 42 U.S.C. § 415(g) and 1383(c)(3).

B. HEARING TESTIMONY

1. Claimant's Hearing Testimony

Plaintiff was forty years old at the time of her administrative hearing. R. 303. She is a single woman with three children ages twenty-five, twenty, and sixteen. R. 304. At the time of the hearing she received public aid enabling her to pay the monthly rent on a house. Id. Claimant completed school through the tenth grade. R 304-05. She had a temporary full-time job as a book filler and had been working at this job for two or three weeks at the time of the first hearing. R. 305.

Claimant stated that she can not presently work because of the pain she suffers and that she is often in and out of the hospital due to her pancreatitis. R. 308. She experiences lower back pain and sometimes has trouble eating. R. 309. She takes medication for the pancreatitis with no side effects. Id. After walking about a block or two Claimant experiences back pain. Id. The back pain is most likely related to the pancreatitis. R. 310. Claimant described the pain as throbbing sometimes, but sharp at other times; when her pancreatitis flares up the back pain increases. R. 315-16.

Claimant had a drinking problem in the past, but she quit in June of 1998, R 310, because she "got tired of being hurting and being in pain and throwing up and losing weight and looking sick all the time." R. 311. While she was drinking, she reached a low weight of eighty-five pounds. Id. Since then her weight has increased to approximately 135 pounds. Id. Claimant has had many flare ups of her pancreatitis since she stopped drinking. R. 316.

In addition to being able to walk approximately two blocks, Claimant can stand for about twenty to thirty minutes at a time before she feels dizzy. R. 313. If she sits down to rest, she can not stand up again right away. R. 313. Claimant's problems sitting do not bother her as much as in the past. R. 316. Bending over to pick something up from the floor causes Claimant some pain, but she can lift a gallon of milk or pick up a chair and move it across a room with no problem. R. 31344.

On a typical day, the Claimant cooks, cleans, watches TV or reads a little bit, but does not have any friends or acquaintances. R 310. She sometimes washes her clothing, but her boyfriend also does this for her. R. 309. She also shops for her own groceries. Id.

Claimant sees a psychiatrist, Dr. Erhardt, for depression two to three times per month. R. 312, 315. She sometimes feels sad and has problems with her memory and concentration. R. 312. She "feel[s] hopeless" two to three times per week. R. 314. Dr. Erhardt prescribed Serzone, which helps her a little bit. Id.

Claimant's full-time temporary job filling books required that she stand while stamping books and placing them in certain boxes lifting no more than ten pounds. R. 305. Prior to this job, Claimant volunteered as a teacher's assistant in a program administered by public aid from February to June 1998. R. 306-07. In this position she corrected papers for students but stopped because the school year ended and she became sick. Id. In addition, she worked replacing valves on spray cans for approximately nine months to a year in the eighties (she could not remember the exact year). R. 308. The job was a full-time position requiring Claimant to stand and lift approximately twenty pounds. Id.

She had been hospitalized approximately four times related to her pancreatitis-two or three times in 1998. R. 311-12. The last time was on June 21-24, 1999. Id.

2. Vocational Expert Testimony

a. Frank Mendrick's Testimony

Vocational expert ("VE"), Frank Mendrick, testified at the first hearing in September 1999. R 317. Claimant's jobs as a machine feeder (replacing valves) and her temporary job as a book packer are both light unskilled work. R. 318. The teacher's aide position is unskilled sedentary work. Id.

The VE was then asked to make an assessment of the Claimant's functional capacity based on hypothetical facts given by the ALJ. The first hypothetical consisted of the following facts: a person with the same education, age and experience as the Claimant who could perform the "entire universe of exertional or non-exertional work with the exception that she would limited to light work with a limitation to simple, repetitive or simple tasks." R. 318-19. He responded that the person would be able to engage in the Claimant's two past jobs of machine feeder and packing. R. 319.

The second hypothetical indicated that the person is limited to lifting twenty pounds occasionally and ten pounds frequently with her ability to walk and stand limited to two hours per day with only twenty minutes standing, and also limited to simple tasks. Id. The VE responded that this hypothetical person would be unable to return to the Claimant's past relevant work because a person who needed to change positions so frequently would not be able to meet the work requirements. Id. lie did indicate, however, that such a person could perform sedentary work, such as general assembly which are simple one and two step jobs. Id. He estimated that there are approximately 500-600 of these jobs in the Chicago Metropolitan Area. R. 320. She could also perform 1,600 sedentary general laborer jobs which include tagging or sorting items. Id.

b. Grace Gianforte's Testimony

Another VE, Grace Gianforte, testified at the supplemental hearing in November 1999. R. 325. Her testimony focused on the Mental Residual Functional Capacity Assessment ("MRFC") completed by Dr. Rizzo, exhibit 6F (R. 183-91). R. 345. Item number eleven (11) stated that Claimant had "markedly limited" ability to complete a normal workday, and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. R. 111. In addition, item fourteen (14) stated that Claimant was "markedly limited" in her ability to accept instructions and respond appropriately to criticism from supervisors. R. 345 (referring to R. 189).

Gianforte testified that the limitations in memory, concentration, and persistence, as indicated on page six of the MRFC (R. 188), do not preclude simple unskilled jobs. R. 345. However, a marked limitation in the ability to complete a normal workweek as a result of symptoms that affect a consistent pace will have a "significant impact on the capacity to sustain competitive employment over time." R. 345. In addition, the marked limitation in the ability to accept instructions and respond appropriately to criticism from supervisors "is a limitation in social interaction where careful attention to detail and complex tasks and the inability to learn from mistakes and to benefit from feedback would seriously impair a person's performing complex detailed work." R. 346. Finally she opined that a person with a marked limitation in item eleven (11) of the MRFC "is not going to meet competitive productive requirements" ...


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