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.
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
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).
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
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
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
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
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
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
minutes, Ms. Entenberg testified that such action would not eliminate any
jobs. (Tr. 71).
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.
(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 ...