Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

LUGO v. BARNHART

August 27, 2003

RUBEN LUGO, PLAINTIFF,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT



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

MEMORANDUM OPINION AND ORDER

Ruben Lugo ("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 Supplemental Security Income ("SSI") and Disabled Adult Child's Insurance Benefits ("CIB") pursuant to Title XVI of the Social Security Act (the "Act"). 42 U.S.C. § 1614(a)(3). This matter is before the Magistrate Judge pursuant to consents filed by both parties on January 27, 2003. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73.

I. BACKGROUND

Plaintiff filed for SSI and CIB on May 16, 2000, alleging disability on May 2, 2000 and May 30, 1980, respectively. (Tr. 224-226 and 80). Plaintiff's application for benefits was denied on August 11, 2000. (Tr. 12 and 228). On September 13, 2000, Plaintiff filed a request for reconsideration. (Tr. 233). Plaintiff's request for reconsideration was denied on November 6, 2000. (Id.). Plaintiff then filed a request for a hearing before an Administrative Law Judge ("ALJ") on [ Page 2]

January 5, 2001. (Tr. 21 A). Plaintiff appeared, with counsel, before an ALJ on February 13, 2002. (Tr. 243). In a decision dated March 29, 2002, the ALJ found that Plaintiff was not entitled to SSI or CIB. (Tr. 79). On May 21, 2002, Plaintiff requested a review of the ALJ's decision by the Appeals Council. (Tr. 8). On July 19, 2002, the Appeals Council denied Plaintiff's request for review. (Tr, 6).

II. FACTS

Plaintiff was born on April 29, 1963 and was thirty-eight years old at the time of his February 13, 2002 hearing before the ALJ. (Tr. 252). Plaintiff, who was enrolled in a special education program, did not complete high school. (Id.). At the time of the hearing, Plaintiff lived with his mother and stepfather. (Tr. 264). Plaintiff is a diabetic and is required to take medication daily to control his blood sugar level. (Tr. 258).

While Plaintiff was in high school, Plaintiff worked as a janitor at a junior high school. (Tr. 252). Apparently, as part of his special education program, Plaintiff was employed at the junior high school. However, because the job was part of the program, when Plaintiff dropped out of the program his job as a janitor at the junior high was terminated. (Tr. 253).

After Plaintiff dropped out of high school, his first full time job, which lasted two months, was with JA Associates, a landscaping company. (Id.). At JA Associates, Plaintiff's duties including general landscaping responsibilities and cutting and trimming lawns.*fn1 (Tr, 254). Plaintiff testified that he quit his job at JA Associates because they implemented drug testing for their [ Page 3]

employees and he "walked out."*fn2 (Id.). Although the exact dates and duration of his employment at JA Associates is unknown, Plaintiff quit and subsequently worked for Blue Freedom Market. Plaintiff testified that his job at Blue Freedom Market required him to "get rid of old fruit." (Id.). Plaintiff was fired from Blue Freedom Market because "some people got in trouble, and [Plaintiff] didn't stick up for the people so they fired [him]." (Id.). Plaintiff worked for Blue Freedom Market for "close to two weeks." (Tr. 260).

After Blue Freedom Market, Plaintiff worked for Happy Temps, a temporary work service. (Tr, 255). One of Plaintiff's jobs was in Dixon, Illinois where he picked up paper, branches and other things in a landfill. (Id.). Plaintiff left his landfill job in Dixon after only a couple of weeks because "[s]ome guy got killed there — a machine fell on him — and the main boss . . . said we couldn't take temps because we didn't have safety equipment. . . ." (Id.). After working in the Dixon landfill, Plaintiff worked for Gulrab Farms in October 1997. Plaintiff's employment at the farm was seasonal. When asked what he did at Gulrab Farms, Plaintiff responded "gathering up turkeys and hanging them." Plaintiff allegedly quit his job at Gulrab Farm because the owner died. (Id.). That was the last "regular" job Plaintiff had. Since his job at Gulrab Farm, Plaintiff stated that now he just collects cans or performs odd jobs. (Id.).

Plaintiff stated that the reason he was unable to attain any jobs after Gulrab Farms was because he was unable to fill out the job applications. (Tr. 256). When asked to explain in further detail, Plaintiff stated "I couldn't fill them all the way out, you know, . . . Because it's too difficult. They asked questions I couldn't fill out, you know, like the last time — how many jobs. I couldn't [ Page 4]

write the — I couldn't spell the names of them and everything like that." (Id.). Apparently, Plaintiff cannot read newspapers, books, and warning labels but Plaintiff did state that it usually depends on how long the words are as to whether he can read them. Plaintiff has trouble adding and subtracting and although Plaintiff stated he is able to give money and receive change when purchasing items, Plaintiff did state that he does not count the change because he usually just puts it in his pocket. (Id.).

A typical day for Plaintiff consists of waking up around nine in the morning and going to visit friends. (Tr.257). Plaintiff testified that he is "in and out" of his house throughout the day. Plaintiff usually returns home around noon to eat lunch and, in the summer, do some yard work to prevent the lawn from "being bad." (Id.). Additionally, Plaintiff helps out around the house by doing some lawn work, giving his mother money to help pay bills, doing his own laundry, sweeping and mopping the floor, and vacuuming. (Tr. 264).

When asked why Plaintiff did not think he could work, Plaintiff responded "Well, there's probably certain things I can't do or certain jobs. They have you probably do measurements or stuff like that, you know, and write it down and say, you know, I need this size of piece of board or something, I can't do it,. . . ." (Tr. 259).

Medical expert, Dr. Joseph Cools, appeared before the ALJ on February 13, 2002. (Tr. 247). Dr. Cools testified that while Plaintiff does have a cognitive disorder, Plaintiff does not meet or equal the requirement of Section 12.05. (Tr, 247). Specifically, Dr. Cools stated that Plaintiff's verbal IQ of 61, performance IQ of 86 and full scale score IQ of 70 is somewhat extraordinary and not indicative of metal retardation. (Tr. 248). While the listing only requires one IQ below 70 (which Plaintiff satisfies), Dr. Cools stated that the listing also requires that Plaintiff is functioning [ Page 5]

in a mentally retarded range (i.e. activities of daily living, socializing, etc), and that is where, in Dr. Cools opinion, Plaintiff falls out of "listing level severity." (Id.). In Dr. Cools opinion, the discrepancy between Plaintiff's three IQ tests shows that Plaintiff has a learning disorder and is not mentally retarded. (Tr. 251). Even though Plaintiff's verbal IQ is in the mentally retarded range, Plaintiff's functional ability is higher than that of a mentally retarded individual. Dr. Cools testified that he based this opinion on Plaintiff's past history, his activities, his way of relating, and his ability to function in the environment. (Tr. 249).

When asked by the ALJ, Dr. Cools stated that Plaintiff's limitations include the inability to learn material that is either written or spoken. (Tr. 266). According to Dr. Cools, Plaintiff has difficulty in not only receiving information from other people in a verbal or written manner but he also has difficulty in expressing himself. Plaintiff is not extremely articulate but is able to express himself given enough time and patience from the listener. However, Plaintiff's limitations do not include the inability to watch somebody do a certain task and then by able to do it himself. Plaintiff learns by example. (Id.). Lastly, Dr. Cools testified that Plaintiff cannot perform complex tasks or perform tasks that require interaction with the public or that require Plaintiff to receive written or verbal orders from another individual. (Tr. 267).

Vocational expert, Cheryl Hoiseth, appeared before the ALJ on February 13, 2002. (Id.). The ALJ directed Ms. Hoiseth to assume a person of Plaintiffs age, which ranged from seventeen to thirty-eight during the relevant period, with an eleventh grade special education, no past relevant work experience, who is unlimited exertionally but cannot perform work that requires complex or detailed tasks or work with the public. After presenting the above hypothetical, the ALJ asked Ms. Hoiseth whether there was any work that such an individual could perform. Mr. Hoiseth stated, that [ Page 6]

based on the above, such a person could be an assembler (30,000 jobs in the Chicago metropolitan area), a vehicle washer (9,000 jobs in the Chicago metropolitan area) and a hand packer (approximately 15, 000 jobs in the Chicago metropolitan area). When asked further by the ALJ to assume the individual could not perform any work that requires extensive verbal or written communication, Ms. Hoiseth stated that such limitations would not effect the assembler or hand packer jobs because they are normally jobs taught by demonstration. (Tr. 268-69). Additionally, Ms. Hoiseth stated that the above mentioned jobs would not be limited by an individual would could not read or write.

III. MEDICAL HISTORY

The earliest medical report available to this Court is dated October 7, 1993. However, this report does not deal with Plaintiff's mental condition or diabetes; rather, the report deals with Plaintiff's left knee. On the October date, Plaintiff saw Dr. Edward S. Magnus of the CGH Medical Center in Sterling, Illinois. (Tr. 147). Dr. Magnus stated that AP and lateral projections reveal no evidence of fracture or dislocation. (Id.). Plaintiff's joint space was normal and there was no degenerative change detected. (Id.). Dr. Magnus did note, however, that Plaintiff probably had a joint effusion. (Id.).

The next medical report available to this Court, again not directly addressing Plaintiff's mental condition or diabetes, is in regards to a right wrist and hand injury Plaintiff received after he fell off his bike. (Tr. 144). Dr. Valentino Menis of the CGH Medical Center's Emergency Department reported that Plaintiff stated he fell off his bicycle and "a car then ran over his right forearm." (Id.). Dr. Menis reported Plaintiff "is obviously inebriated with a strong odor ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.