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RACONKAY v. BARNHART

May 13, 2003

BARBARA RACONKAY, PLAINTIFF,
v.
JO ANNE B. BARNHART, 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 Barbara Raconkay ("Claimant" or "Plaintiff') seeks judicial review of the final decision of the Commissioner of Social Security, Jo Anne B. Barnhart ("Commissioner"), denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 416(i) and 423. Plaintiff claims the Commissioner's decision to deny her benefits should be reversed because the Administrative Law Judge: 1) did not find that she met a listing level impairment, 2) failed to call a medical expert to testify at the administrative hearing on whether her condition was the equivalent of a listing level impairment, and 3) rendered a decision unsupported by substantial evidence. This case comes to the Court on cross-motions for summary judgment. For the reasons stated herein, this Court grants Plaintiff's motion for summary judgment, denies the Commissioner's motion for summary judgment, and remands this case to the Commissioner for a supplemental hearing consistent with this opinion.

II. BACKGROUND

A. PROCEDURAL HISTORY

This case is Claimant's second application. Her first application was approved and she was found disabled and first placed on benefits on September 30, 1988. R. 37. Her impairment was borderline mental retardation. Id. Her benefits were terminated retrospectively as of 1991 by notices issued in 1996 and 1998. A hearing was held before ALJ Lovert Bassett. On January 25, 2000, ALJ Bassett determined that Plaintiff's period of disability ended effective January 1991, the first month of substantial gainful activity ("SGA") after completion of her trial work period. R. 30-38.

On February 1, 2000, Claimant filed for disability insurance benefits alleging a disability since May 1, 1994. R. 82. Plaintiff's application was denied initially and again on reconsideration. R. 43-46, 49-51. Claimant then filed a request for hearing. R. 55-56. A hearing was held before Administrative Law Judge ("ALJ") Robert T. Karmgard, and an adverse decision was issued dated February 23, 2001. R. 18-29, 174-228. On November 21, 2001, the Appeals Council denied Plaintiff's request for review, making the decision the final decision of the Commissioner. R. 4-5. The case is properly before this Court pursuant to 42 U.S.C. § 415 (g).

B. HEARING TESTIMONY — DECEMBER 5, 2000

1. Claimant's Hearing Testimony

Barbara Raconkay was 37 years old at the time of the hearing. R. 183. She has lived with her father her entire life. R. 184. She earned a General Equivalency Diploma ("GED") in 1983. Id. She can read and write and perform basic addition and subtraction, however, she cannot make change. R. 184-85. She no longer has a driver's license and has not worked since 1996. R. 185-87.

Plaintiff has problems walking and falling on stairs. R. 186. She cannot run, kneel, or bend, and she has trouble holding onto objects with her right hand. R. 197-99. She drops things once or twice a day and falls once a day. R. 199. Her daily activities include completing household chores, working on puzzles and reading the newspaper. R. 195. She shops with her father and reads romance novels and some parts of the newspaper. R. 196-97. She tires after performing household tasks such as sweeping. R. 200. She rests for an hour after doing her household activities. R. 202. She has a poor memory. R. 203. She can stand for ten to fifteen minutes at a time before needing to lie down, she can sit for twenty minutes at a time, walk a block and a half, and lift six pounds. R. 197.

Plaintiff's work experience includes cleaning for the Metropolitan Water Reclamation District of Greater Chicago in the summers between 1990 and 1994. R. 191. The Commissioner at the Metropolitan Water Reclamation District of Greater Chicago wrote that Plaintiff worked as a summer worker "under strict supervision and was constantly monitored because of her inability to function as a normal worker." R. 117. Plaintiff also held a job in food service at Norwegian Lutheran Bethesda Home Association during 1990-1992. R. 193. In 1995 and 1996, Plaintiff worked as a "tagger" for Marshall Fields department store five hours per day, five days a week. R. 187-88. Plaintiff also worked as a dishwasher at East Ann Arbor Inn five days a week, six or seven hours per day, sometime in 1995 for several months. R. 190-91.

2. Paul Raconkay's Testimony

Plaintiff's father, Paul Raconkay, testified that he arranged her jobs at the Water Reclamation District, Park District, and Bethesda Home through his contacts. R. 213. Plaintiff's tendency to fall while walking or when descending stairs as well as her tendency to drop things had worsened in the last two or three years. R. 213.

3. Vocational Expert James Radke

James Radke ("Radke"), a vocational expert, also testified at Plaintiff's hearing. R. 215-27. Radke classified Plaintiff's previous work activity as light in exertion. R. 218. The ALJ asked Mr. Radke about job possibilities in the regional economy for a hypothetical individual with Plaintiff's vocational profile who can lift and carry a maximum often pounds occasionally and lighter items frequently. R. 219. In addition, the individual could stand and/or walk for up to two hours in an eight-hour workday, but no longer than fifteen or twenty minutes continuously. Id. The person could sit with normal breaks for up to six hours in an eight-hour workday, but could not climb ladders, ropes, or scaffolds. R. 220. The individual could perform postural activities on an occasional basis and had some decrease in fine dexterity. Id. However, the individual could use her hands to pick up and manipulate objects such as silverware and coins. The person could also button and zip her clothing. Id. However, she needed to avoid exposure to hazards such as unprotected heights or excavations and could not be exposed to unprotected moving parts or dangerous machinery. In addition, the person could not recall or carry out complex or detailed instructions or perform complex or detailed tasks. Id. The individual could, however, understand, recall, and carry out simple instructions and perform simple, repetitive tasks on a sustained basis. R. 220-21. Radke testified that such an individual could not perform any of Plaintiff's previous work, but that she could peform 2,000 administrative support jobs at the sedentary, unskilled level; 1,000 mail clerk jobs (private mail service); 1,100 production inspection jobs; and 1,500 general laborer jobs. R. 221-22.

If the person's corrected visual acuity was 20/50 bilaterally, he would reduce the number of mail clerk positions to 500, reduce the number of administrative support positions to 1,500, and reduce the number of production inspector jobs to 250 to 400 jobs. R. 222-23. If the person could only read at the fourth grade level, he would reduce the number of administrative support jobs to 750, but that it would not affect any of the other jobs. T. 223-24. If the person had a mild to moderate decrease in both gross and fine dexterity, Radke testified that the production inspector and mail clerk jobs would be eliminated, the general laborer jobs would be reduced to 200, and the administrative support jobs would be reduced to 300. R. 225. Finally, if the person could not perform frequent changes of position, the general laborer jobs would be eliminated and the administrative support jobs would be reduced to 100. R. 226-27.

C. MEDICAL EVIDENCE

The medical evidence consists of records from Plaintiff's treating physician, Dr. Robert Sufit; the report from an evaluation by Dr. Claude Hamilton, a state appointed physician; the reports from two reviewing physicians, Dr. Robert England and Dr. Henry Bernet; and ...


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