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RIVAS v. BARNHART

February 27, 2004.

EDWARD RIVAS, 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

Edward Rivas ("Plaintiff') seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner"). See 42U.S.C. § 405(g), 1383(c)(3). The Commissioner's final decision denied Plaintiff's application for Disability Insurance Benefits ("DIB") 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 June 13, 2003. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73.

I. BACKGROUND

  Plaintiff filed for DIB on August 22, 2001, alleging disability on April 26, 2001. (Tr. 117). Plaintiff's application for benefits was denied on January 3, 2002. (Tr. 82). On February 19, 2002, Plaintiff filed a request for reconsideration. (Tr. 86). Plaintiff's request for reconsideration was denied on April 29, 2002. (Tr. 88). Plaintiff then filed a request for a hearing before an Administrative Law Judge ("ALJ") on May 15, 2002. (Tr. 92). Plaintiff appeared, with counsel, before an ALJ on October 29, 2002. (Tr. 25). In a decision dated December 26, 2002, the ALJ found that Plaintiff was not entitled to DIB. (Tr. 24). On January 8, 2003, Plaintiff requested a Page 2 review of the ALJ's decision by the Appeals Council. (Tr. 7). On March 10, 2003, the Appeals Council denied Plaintiff's request for review. (Tr. 5).

 II. FACTS

  Plaintiff was born on December 10, 1967 and was thirty-four years old at the time of his October 29, 2002 hearing. (Tr. 31). Plaintiff graduated from high school. (Id.). At the time of his hearing, Plaintiff had been living with his mother for two years since separating from his wife. (Id). Plaintiff suffers from affective/mood disorders and a disorder of his back. It is for these reasons that Plaintiff claims to be disabled.

  As an initial matter, Plaintiff testified that he had back surgery in 1998. The date of the surgery was not disclosed. From 1998 to 2000, Plaintiff worked for Hilton performing general cleaning duties. (Tr. 37). Specifically, Plaintiff testified he cleaned windows, restrooms and wiped down the machines. (Id.). The job required no lifting but did require Plaintiff to be on his feet for eight hours. (Tr. 38). Plaintiff testified that he took a three month leave of absence from his job at Hilton after his back surgery, but returned after the three months.

  After Hilton, Plaintiff worked for Capsa Corporation, which later became First Staffing. Although unclear, Capsa, and then First Staffing, appear to be temporary employment agencies. While at First Staffing, Plaintiff worked on an assembly line and as a welder. The assembly line job required no lifting but required Plaintiff to stand for ten hours with a few sit down breaks and lunch. (Tr. 55). Plaintiff testified that he was having problems with his job and informed his supervisor because he was having pain in his back associated with standing for such a long duration. (Tr. 36).

  As a welder, which Plaintiff apparently did at some point, Plaintiff testified that he had to lift approximately fifteen to twenty pounds (the weight of the grinder). (Tr. 34). Plaintiff apparently Page 3 attempted to find work as a grinder in May/June 2001 but was unable to attain such employment because he did not have the strength to lift the fifteen to twenty pound grinder. (Id.).

  In terms of Plaintiff's day-to-day activities, Plaintiff testified that since he stopped working in April, he does little around the house except watch television. (Tr. 38). Plaintiff stated he spends an average of four to five hours watching television and can sit and watch television for about a half an hour without having to stand,*fn1 (Id.). On occasion, however, Plaintiff testified that he helps with the dishes*fn2 and sweeps. Except on holidays, Plaintiff also stated that he does not leave the house to visit friends or relatives and usually only drives his car when he has to go to the doctor. (Id.). Generally, Plaintiff gets only one or two hours of sleep a night because of the pain. (Tr. 54).

  Since his back surgery in 1998, Plaintiff testified he feels "[p]ain, a lot of pain" in his back. (Tr. 40). Generally, the pain is located in his lower back down through his right leg. (Id.). Occasionally, Plaintiff stated, the pain goes down to his right toe, but always goes to his right leg. (Id.). Plaintiff described the pain as a "stabbing pain" that has worsened since April 2001 when he was "walking around the house and . . . happened to start coughing and sneezed." (Tr. 33). Since that day in April 2001, Plaintiff stated he feels the pain everyday. (Tr. 40). As a result of the pain, Plaintiff stated he can only sit or stand for about fifteen minutes and he can only walk half a block before his leg starts to weaken from the pain and he falls. (Tr. 42). When asked to clarify, Plaintiff stated that on seven or eight occasions while walking he felt as though he could not control his right leg and he loses control of it and falls. (Id.). Plaintiff stated his doctors told him he falls because Page 4 he has nerve damage in his leg. (Tr. 43). On his own and without being prescribed one, Plaintiff started using a cane. (Tr. 57).

  In addition to his leg and back pain, Plaintiff testified that he suffers from depression. (Tr. 45). Plaintiff testified that for about six or eight months prior to the hearing he was feeling depressed, usually about his leg, back and the pain that goes with both. (Id.). Like the pain in his back and leg, Plaintiff stated he feels depressed everyday for a few hours at a time. (Id.). During those few hours, Plaintiff locks himself in a room and cries. (Tr. 48). Additionally, Plaintiff testified that he blacked out twice over the course of six months prior to the hearing as a result of his depression. (Id.). Plaintiff was unable to identify anything specific that caused the blackouts. (Tr. 47). In addition to the occasional blackouts, Plaintiff testified he vomits and has diarrhea everyday. (Tr. 50).

  Vocational Expert, Susan Entenberg, appeard before the ALJ during Plaintiff's October 2002 hearing. (Tr. 65). Ms. Entenberg first testified that Plaintiff's job at Hilton would be light unskilled and Plaintiff's welding job would be light semi-skilled but also performed at a heavy level. (Tr. 66). The ALJ then asked Ms. Entenberg to assume the following:

  With the ability to read, write and numbers and the same prior work history as the [Plaintiff] in this case with the capacity to perform work with the following and no other additional limitations. Lifting and carrying be limited to up to 20 pounds maximum on occasional basis and 10 pounds frequently with the ability to sit, stand and walk respectively with normal breaks up to six hours each within an eight hour day. The individual could not climb ladders, ropes or scaffolds, but may otherwise climb ramps or stairs, balance, stoop, kneel, crouch or crawl with no more than an occasional basis. The individual must avoid exposure to hazards, such as exposed, unprotected heights or excavations or dangerous machinery and would not have the capacity to recall or focus upon or carry out complex or detailed instructions or to focus upon or perform complex or detailed work activities at a Page 5 sustained pace. But retain the capacity to focus on and carry out simple instructions and to perform simple, routine tasks at a sustained workmanlike pace. Additionally the individual should not perform work which would require more than incidental contact with members of the general public.

 (Tr. 68). Based on the above, Ms. Entenberg stated that such an individual could only perform the housekeeping work. (Id.). The ALJ next asked Ms. Entenberg to further assume that the individual was "limited in terms of lifting and carrying up to a 10 pound maximum on occasional basis and five pounds frequently the individual could stand and walk for no more than a combined total of two hours in an eight hour day and for no longer than about 15 minutes continuously." (Tr. 69). Based on the further limitation, Ms. Entenberg stated that all prior work would be eliminated. (Id.). However, Ms. Entenberg testified that such an individual would nonetheless be able to perform some assembly jobs, some packer jobs and some inspection jobs in the region.*fn3 (Id.). Specifically, Ms. Entenberg testified that there ARB about 7,000 assembly jobs in the region, about 4,000 packer jobs in the region, and about 3,000 inspection jobs in the region that such an individual could perform. (Tr. 70).

  In regards to the three above mentioned jobs, the ALJ then asked whether the use of a cane for ambulation, and not for standing, would eliminate any of the above mentioned jobs. (Id.) Ms. Entenberg stated that no jobs would be eliminated. (Id.) Finally, with regards to the three above mentioned jobs, the ALJ asked Ms. Entenberg what is the minimum duration that an individual must be able to sit. Ms. Entenberg stated that an individual must be able to sit continuously for thirty to 45 minutes. (Id.) Even if the individual had to take breaks for a minute or two after 30 to 45 Page 6 minutes, Ms. Entenberg testified that such action would not eliminate any jobs. (Tr. 71).

 III. MEDICAL HISTORY

  The earliest medical report before this court is dated July 19, 1999. On that date, Plaintiff saw Dr. Noam Stadlan of the Chicago Institute of Neurosurgery and Neurosresearch. (Tr. 242). By way of background, Dr. Stadlan reported that Plaintiff had a lumbar discectomy in October 1998 because he was having back pain, right leg pain, and numbness. (Id.) Dr. Stadlan also reported that subsequent to his October 1998 surgery, Plaintiff's leg pain had resolved but Plaintiff was still having residual numbness and significant back pain. (Id.) A physical examination of Plaintiff revealed a healthy appearing gentlemen with some localized pain on flexion and extension. (Tr. 241). A neurological examination showed some slightly decreased strength in Plaintiff's right L5 distribution. (Id.) Dr. Stadlan recommended Plaintiff have an MRI scan and flexion/extension films of his back to assess whether he has a gross instability or whether the pain is more muscular. (Id.).

  A few daw later, Plaintiff saw Dr. Michael Mikhael of the Department of Diagnostic Radiology and Nuclear Medicine. (Tr. 232). Dr. Mikhael performed an MRI of Plaintiff's lumbar spine, the results of which indicated that Plaintiff's previous right hemilaminectomy at L4-L5 showed enhancement. (Id.). There was no evidence of a herniated or extruded disc or any bony stenosis. (Id.). However, Dr. Mikhael did report that some minimal bulging of Plaintiff's disc was seen at the L5-S1 level. (Id.). Ultimately, Dr. Mikhael found enhancing epidural fibrotic changes in Plaintiff's right hemilaminectomy at L4-L5 with no evidence of a recurrent herniated disc or significant foraminal narrowing. (Id.).

  Six days later, Plaintiff saw Dr. Stadlan again. (Tr. 240). Dr. Stadlan reviewed Plaintiff's MRI from July 23, 1999, and indicated that there appeard to be degenerative disc disease at L4-5. Page 7 (Id.) Additionally, Dr. Stadlan noted some very small minimal disc bulges but no impingement on any nerve root. (Id.) Dr. Stadlan also filled out a functional/activity work status form for Plaintiff. On the form, Dr. Stadlan indicated Plaintiff was cleard to carry up to 30-40 pounds occasionally. (Tr. 243). Ultimately, Dr. Stadlan recommended Plaintiff start physical therapy and prescribed Soma and Voltraren. (Id.).

  Plaintiff saw physical therapist Jonathan Bender four days after seeing Dr. Stadlan. Mr. Bender evaluated Plaintiff and noted that Plaintiff's significant problems include: limited sitting tolerance due to lower back pain; slow and guarded functional movements; and coughing and sneezing which cause lower back pain. (Tr. 239). Mr. Bender's clinical assessment indicated Plaintiff had limited lumbosacral range of movement and a significantly weaker right lower extremity. (Id.) Mr. Bender proposed a treatment plan for Plaintiff that would hopefully decrease Plaintiff's pain by eighty percent.

  After Mr. Bender's report, Plaintiff's medical records fast forward to March 27, 2001. (Tr. 186). On March 27, 2001, a mental health assessment was performed on Plaintiff by Ms. Kristsi Kitchen, B.A/MHP of the Janet Wattles Center in Rockford, Illinois. (Id.) Ms. Kitchen indicated that Plaintiff came to Janet Wattles complaining of crying spells, an inability to think clearly, racing thoughts, decreased appetite, and feeling as though he was losing control. (Id.). A mental status exam revealed Plaintiff's thoughts were intact and sequential and he was able to answer questions ...


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