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HERRON v. BARNHART

August 26, 2003

SAVANNAH HERRON, PLAINTIFF, VS. JO ANNE BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT


The opinion of the court was delivered by: Sidney Schenkier, Magistrate Judge

MEMORANDUM OPINION ANO ORDER*fn1

The plaintiff, Savannah Herron, seeks judicial review of a final decision by the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying her claim for Social Security Income ("SSI"). On August 5, 1998, Ms. Herron filed an application for SSI, alleging a disability beginning on July 20, 1997, caused by back pain (R. 20), The Agency (bund that Ms. Herron was not disabled, both initially and again upon reconsideration (R. 28-38).

On November 28, 2000, Ms. Herron, represented by counsel, appeared at a hearing before an Administrative Law Judge ("ALJ") (R. 232). Although some testimony was taken at the hearing, the hearing was ended before its completion because Ms. Herron's attorney indicated that a prior application for benefits and some medical records could not be located and were not before the ALJ. The ALJ agreed to leave the record open until those records could be located. After the prior application and a portion of the medical records were located, the ALJ held a supplemental hearing on August 2, 2001 (R. 303-47). The ALJ subsequently issued a written decision, dated. September [ Page 2]

28, 2001, denying Ms. Herron SSI benefits (R. 19-27). Ms. Herron filed a Request for Review and, on April 26, 2002, the Appeals Council denied the request (R. 6-7). Therefore, the decision of the ALJ is the final decision of the Commissioner and is subject to judicial review by the district court, See Luna v. Shalala, 22 F.3d 687, 689 (7th Cir. 1994). Ms. Herron subsequently filed a timely complaint in federal court seeking judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g) and 1383(c).

Ms. Herron now seeks summary judgment reversing the Commissioner's decision denying her SSI or, in the alternative, remanding the case for further proceedings (doc, #28). The Commissioner has filed a cross-motion for summary judgment to affirm the decision below (doc. #30). For the reasons stated below, the Court denies the Commissioner's motion for summary judgment and grants Ms. Hcrrón's motion for summary judgment, remanding the case for further proceedings.

I.

The following facts are taken from the administrative record, the administrative hearing transcript, and the ALJ's written decision. We will set forth the claimant's personal and medical history first, followed by a summary of the administrative hearing testimony and the ALJ's written decision.

A.

Ms. Herron was born on September 17, 1954, and was 47 years old at the time of the ALJ's decision (R. 94). She has a tenth grade education and is working on obtaining a generalized education degree (GED) (R. 262), Ms. Herron previously has been employed as a housekeeper, as [ Page 3]

a skip tracer, and as a receptionist and stocker for a furniture company, but has not worked since May 1998 (R. 127-39).

Ms. Herron lives in a Section 8 housing apartment with her 19 year-old daughter (R. 259). With regard to her daily activities, Ms. Herron testified that her daughter has to help her tend to her personal care, but she is able to do household cleaning, and some cooking and shopping (R. 270-71). She also testified that she watches television, and that she is able to take public transportation (R. 271).

Ms. Herron states that she is currently unable to work due to back and neck pain she has experienced since sustaining an injury in 1997, The pain is located in the left side of the back, underneath the shoulder blade (R. 272). Additionally, Ms. Herron said that she has a sharp, agonizing pain in the center of her back, around the waistline (R. 281). Ms. Herron stated that the pain sometimes makes her restless. Ms. Herron stated that this pain occurs every other day and lasts all day (R. 283), She added that the pain affects her concentration, and causes forgetfulness (R. 21). Ms. Herron said that when the pain occurs, she stands up, or lies on a rug and rolls back and forth (R. 276), Ms. Herron testified that her pain is relieved by the medication Flexeril, which she takes three times per day (R. 283). But, she claims that the medication makes her very drowsy, so she does not always take it (Id.).

Ms. Herron said that she can sit for two hours and walk two blocks. She stated that if she worked, two 10-minute breaks and a 30-minute lunch would not be long enough for her to take her medication. Ms. Herron continues to see her treating physician, Dr. Shah. Before that, she had seen a chiropractor three times per week (R. 279). She said that she participated in physical therapy during all of 1999, but stopped when she lost her medical card (Id.). [ Page 4]

B.

Ms. Herron claims disability due to back and neck pain resulting from an injury on July 20, 1997, when a portion of her bathroom ceiling fell on top of her (R. 102). The first relevant medical evidence available in the record dates back to 1975, when she underwent surgery for a back injury (R. 408-09). We will review the medical evidence in chronological order.

Ms. Herron underwent an exploratory lumbar laminectomy in 1975, for a stab wound to her lower back at L3-L4, and for spinal fluid leakage, Id.; see also Exhibit IF. There is no medical evidence from 1975-97 in the record. Ms. Herron did develop back and neck pain, after part of her bathroom ceiling fell on her in July 1997 (R. 102). However; magnetic resonance imaging ("MRT") taken of the lumbar spine on September 9, 1997 failed to demonstrate a compression fracture or subluxation (R. 426). There was a loss of intervertebral disc height at the L3-L4 level and mild central) disc bulging, but no evidence of the thecal sac decompression or asymmetry noted (Id.),

In August 1998, Ms. Herron's treating physician, Dr. Chad Larson, noted that the claimant's deep tendon reflexes were intact; there was no muscle atrophy; and the claimant's gait was normal without the use of an assistive device (R. 165-66). Ms. Herron had some decreased range of motion of the lumbar spine, with paravertebral muscle spasms (Id.). Dr. Larson also noted that prolonged standing, and performing lifting and/or carrying, could possibly be difficult cult for the claimant, although he did not specify any particular time or weight limitations (R. 166).

On September 17, 1998, Dr. Mai Phan, a state agency consulting physician, examined Ms. Herron and noted that she had decreased range of motion in her back, as well as in her neck and shoulder (R. 401-03). She also had a diminished grip of strength in the right hand, but she was otherwise neurologically intact (Id.). X-rays taken of the lumbar spine that day disclosed narrowing [ Page 5]

of the I, 4-L5 intervertebral disc space (R. 405). The cervical spine showed moderately advanced degenerative changes in the mid-cervical spine, with degenerative disc pathology at the C4-C5 level (Id.).

An October 26, 1999 report by Dr. Jagdish Shah, Ms. Herron's current treating physician, showed that the claimant continued to have limitation of motion of the lumbar spine, with paravertebral muscle spasms and positive leg raising (R. 175-77). Dr. Shall noted that Ms. Herron's reflex and sensation were normal and that there was no Evidence of nerve compression (R. 174). Dr. Shah also stated that the claimant would have decreased ability to stand, move about, and perform lining and carrying, although he did not provide specific restrictions (R. 174-75). Id. The MR1 taken of the lumbar spine at that time (1999) was normal (R. 188). Dr. Shah's report docs not indicate that he made any RFC findings regarding the range of work that Ms. Herron could perform.

A state agency physician, Dr. Pilapil, made an RFC finding in 1999. Dr. Pilapil found that Ms. Herron had the RFC to perform a limited range of light work (R. 391-97), Specifically, Dr. Pilapil found that Ms. Herron could perform a limited range of light exertional work: she could lift and/or carry 20 pounds occasionally or 10 pounds frequently; sit for up to 6 hours in an 8-hour work day; stand and/or walk for up to 6 hours in an 8-hour work day; perform balancing, crouching, kneeling, and crawling frequently, and climbing and stooping occasionally (R. 392-93), There were no push and/or pull restrictions (Id. at 392).

Ms. Herron was hospitalized in early December 1999 for recurrent syncopal episodes (R. 178-79). The treating physician, Dr. Terry A. Zheutlin, reported that the claimant failed to show any structural heart disease or etiology for the episodes (Id. at 178). The claimant was discharged on an empiric antiarrhythmic therapy of low dose beta-blockade (Id.). At a follow-up examination weeks [ Page 6]

later, the claimant reported being light-headed and dizzy, but had significant improvement in symptoMs. and was functioning normally (R. 178). She reported some light-headedness when standing quickly, but stated that the symptoms stopped when she was seated (Id.).

Another state agency RFC evaluation was done on January 18, 2000, this one by Dr. Young-Ja kim (R. 189-96). This evaluation, by Dr. Kim, recited two limitations not in the earlier RFC: no climbing (R. 192), and no work "around hazardous moving machinery or at unprotected heights (R. 193). Dr. Kim also commented that Ms. Herron was able to engage in "unassisted ambulation," and that her 1999 MRI was "normal" (R. 196).

On November 16, 2000, Dr. Shah prepared another evaluation of Ms. Herron's condition (R. 201-04), Dr. Shah opined that Ms. Herron could not stand, walk or sit upright for 6 hours of an 8-hour working day, but would need to lie down every two hours (R. 202). He further opined that she only could lift and carry less than 5 pounds frequently during a work day (Id.). ...


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