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FERERE v. BARNHART

April 16, 2004.

MARY F. FERERE, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant



The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Mary Ferere, now 37 years old, suffers from depression and an anxiety disorder. She alleges that those impairments, combined with an injury to her right knee sustained in September of 2000, prevent her from being able to hold down a job. On March 19, 2001, she applied to the Social Security Administration ("SSA") for Disability Insurance Benefits, but the SSA denied her application. After unsuccessfully pursuing an appeal through the SSA's processes, Ms. Ferere filed suit in this Court, seeking review of the decision to deny her benefits. The case is before the Court on cross-motions for summary judgment.

Facts & Procedural History

  Mary Ferere applied for Disability Insurance Benefits on March 19, 2001, claiming that, as of October 7, 2000, she was unable to work because of depression, anxiety, an injured right knee, and hypertension. Record at 57. The SSA denied her claim initially on July 17, 2001, and upon reconsideration on November 7, 2001. Record at 24-27, 29-31. After she requested a hearing, her case was assigned to Administrative Law Judge Gerard J. Rickert, who held the requested hearing on September 23, 2002.

  At the hearing before the ALJ, Ms. Ferere, who was represented by counsel, testified first. In response to questions from the ALJ, Ms. Ferere testified that she is 5' 6" tall and weighs 250 pounds, and that she lives with her disabled husband and her two minor daughters in a house owned by her parents. Id. at 143-45. She testified that she graduated from high school, and then took some general business courses at a junior college. Id. at 145.

  With respect to her past work experience, Ms. Ferere testified that she had worked as a lab technician for Silliker Labs from June of 1983 until October of 2000, when she was fired because her "illness was taking longer than [the company] anticipated." Record at 146. She testified that she has not worked at all since leaving the lab. Id. Ms. Ferere testified that, as a lab technician, she was responsible both for physically setting up research studies or experiments, and for analyzing and reporting the research data and findings; the job required her to spend most of the day on her feet and to lift up to 15 pounds on a daily basis. Id. at 160-62. With respect to her impairments, Ms. Ferere first testified that she suffers from an injured right knee and from hypertension. She testified that her knee still bothers her "[f]rom time to time," that it throbs if she walks long distances or if the weather changes, and that she is unable to put too much weight on it; she testified that sometimes when she walks up stairs, her knee feels like it is going to "collapse." Id. at 147-48, 155. She admitted, however, that her knee problem was not what was preventing her from working. Id. at 155. In fact, she testified that she was no longer under a doctor's care for her knee, and that she had not seen a doctor about her knee for at least a year. Id. at 148. She also testified that her hypertension was controlled with medication. Id. Along those lines, she testified that, at the time of the hearing, she was taking Zestril for her blood pressure and Zoloft for her depression and anxiety; she also testified that she took Ativan on an as-needed basis, about three times a week, and that she took Tylenol to relieve her knee pain. Id. at 147-48.

  Ms. Ferere testified that she also suffers from depression and anxiety, which surfaced shortly before she stopped working. Record at 148. She testified that she had been seeing a psychiatrist once a month, and was in the process of being set up with a therapist. Id. at 149. With respect to the symptoms of her depression, she testified that she "feel[s] very down," she thinks about harming herself, feels guilty or worthless almost every day, and has trouble sleeping at night, often waking in the middle of the night; she testified that some days she simply cannot function because the medication makes her so tired. Id. at 149-51. She testified that her mind races and she has difficulty concentrating or thinking, she is less interested in things than she should be, and she has panic attacks a couple of times a week, which generally last, about 10 to 15 minutes. Id. at 150, 157. She testified that, when she is experiencing a panic attack, she has to either go outside to get some air or think pleasant thoughts. Id. at 157. She testified that she used to feel like somebody was watching her, and she experiences auditory hallucinations "once in a great while." Id. at 156. She testified that she experiences headaches, has trouble making quick decisions, and has a hard time handling the daily stresses of life; she testified that her husband's health issues, issues relating to her children and her home life make her feel "very nervous and shaky inside," Id. at 158-59.

  With respect to her daily activities, Ms. Ferere testified that, in a typical day, she wakes up around 7:00 a.m., naps from about 10:00 a.m. until about 3:00 p.m., and then goes to bed around 10:00 or 11:00 p.m. Record at 151, 157. She testified that she does very little housework (some sweeping, maybe a little mopping), and prepares basically only microwave meals; her husband does most of the cooking and the laundry. Id. at 151. She testified that she will drive short distances, but is afraid to drive alone because of her panic attacks. Id. at 152. She testified that she has no hobbies, rarely visits with friends or neighbors and is not active in her kids' schools or any other organizations, though she does attend her kids' parent/teacher conferences; she watches very little television, does not read, attends church only about once a month, and no longer uses her home computer. Id. at 152-53. She testified that she spends most of her time sleeping and maybe walking a little; she is able to bathe and dress herself. Id. at 153.

  After Ms. Ferere testified, the ALJ heard from Thomas Grzesik, a vocational expert. Initially, the ALJ asked VE Grzesik how he would characterize Ms. Ferere's past work and whether, in his opinion, she was still able to perform that work. On the former, VE Grzesik testified that he would characterize Ms. Ferere's past work as "light in physical demand and semiskilled," and, on the latter, he testified that she was no longer capable of doing that job. Record at 163-64.

  Next, the ALJ asked VE Grzesik whether, given her limitations, Ms. Ferere might be able to do other jobs. Specifically, the ALJ asked the VE to consider what jobs might be available for someone who: (1) was 36 years old; (2) had completed high school and taken a few college courses; (3) had Ms. Ferere's past work experience; (4) was limited on an exertional basis to the light level of exertion; (5) could lift no more than 10 pounds frequently or 20 pounds occasionally; (6) suffers deficiencies in concentration such that she is limited to relatively simple repetitive tasks involving, at most, two or three steps; and (7) because of anxiety concerns, cannot engage in work activity that involves significant dealings with the general public or "stiff time/rate productions pressures." Record at 163-64. VE Grzesik testified that a person described as such would be able to work as a material handler, a machine tender or a hand packager, and that all of those jobs existed in relative abundance in the Chicago area. Id. at 165. VE Grzesik clarified, however, that none of these jobs — nor any other jobs in the economy as far as he knew — would accommodate a lengthy nap in the middle of the workday. Id. at 165-66. He also testified that, if Ms. Ferere needed more than three breaks in the course of the day or needed prolonged breaks during the workday, she was essentially unemployable. Id. at 166. Additionally, in response to questions from Ms. Ferere's attorney, VE Grzesik testified that the types of jobs he identified might not be available to someone who was unable to maintain attention and concentration for extended periods, to someone who was unable to perform activities within a schedule, or maintain regular attendance and be punctual, to someone who was unable to sustain an ordinary routine without special, supervision, or to someone who became distracted when working with or near others. Record at 167-68. Finally, VE Grzesik testified that the need to withdraw from the workplace because of panic attacks, even as seldom as one time per week, could impact a person's ability to perform any job. Id. at 169.

  In addition to the testimony given by Ms. Ferere and VE Grzesik, the ALJ considered medical records documenting Ms. Ferere's impairments, including progress notes and assessments from Ms. Ferere's treating psychiatrist, Dr. Aida Spahic-Mihajlovic, The record contains a psychiatric report, completed by Dr. Spahic-Mihajlovic at the behest of the SSA on April 20, 2001, indicating that she saw Ms. Ferere on a monthly basis beginning January 9, 2001. Record at 91. In that report, Dr. Spahic-Mihajlovic noted that Ms. Ferere had complained of sluggishness, tearfulness, sleep disruption, significant weight loss and anhedonia*fn1, all worsening over time since about September of 2000. Id. According to Dr. Spahic-Mihajlovic, Ms. Ferere reported having difficulty caring for herself and her children, and working outside the home. Id. She indicated that Ms. Ferere suffered from a major depressive disorder, moderate to severe, and from a panic disorder, and she indicated that, because of these disorders, Ms. Ferere would "likely have difficulty interacting w/co-workers, responding to supervision & managing typical work stressors." Id. at 93. Despite this, Dr. Spahic-Mihajlovic noted that Ms. Ferere's thought processes, memory and mental capacities were within normal limits. Id. at 92-93,

  The record also contains Dr. Spahic-Mihajlovic's progress notes, the notes she made documenting each appointment she had with Ms. Ferere. In all, the record contains progress notes from fifteen appointments, beginning on January 9, 2001 and ending on July 15, 2002. A patient intake form from the first appointment on January 9 indicates that Ms. Ferere was referred to Dr. Spahic-Mihajlovic for depression, and that her chief complaints at the time were sluggishness, low morale, crying everyday, sleep disturbances (including difficulty falling asleep and early morning waking), weight loss, and anhedonia. Record at 112, At the time, Dr. Spahic-Mihajlovic indicated that Ms. Ferere had a GAF score of 70, Id. at 114, meaning that she put her at a 70 on the Global Assessment of Functioning Scale, a "hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders, p, 32 (4th ed. 1994). A score of 70 would put Ms. Ferere at the uppermost (healthiest) end of the range indicating "[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." Id. (emphasis in original).

  The record shows that Dr. Spahic-Mihajlovic next saw Ms. Ferere on February 1, 2001; at that time, Dr. Spahic-Mihajlovic noted that Ms. Ferere's orientation, speech, memory, thought processes, affect and judgment were all. within normal, limits, her attention and concentration were good, her associations were intact, and she had no suicidal or homicidal ideations. Record at 116. In fact, the only negative symptoms noted in the February progress notes were medication-related headaches (which Dr. Spahic-Mihajlovic addressed), a depressed mood, and problems with tremors. Id. As with the last visit, Dr. Spahic-Mihajlovic recommended that Ms. Ferere return in one month for a follow-up visit, and Ms. Ferere next saw Dr. Spahic-Mihajlovic on March 12, 2001. According to the progress notes from that appointment, Ms. Ferere's condition was essentially unchanged, except that Dr. Spahic-Mihajlovic now characterized her mood as depressed and anxious (not just depressed). Record at 117. Dr. Spahic-Mihajlovic also noted that Ms. Ferere reported experiencing dizzy spells. Id. In the "Follow-up Plan" section of the notes, Dr. Spahic-Mihajlovic indicated that Ms. Ferere would return for a follow up visit in one month and continue on long term disability for another one to two months. Id.

  The record shows that Ms. Ferere next saw Dr. Spahic-Mihajlovic on May 2, 2001. According to the progress notes from that appointment, Ms. Ferere's condition was unchanged, except that she described her mood as more anxious than depressed. Id. at 118. At that appointment, Ms. Ferere reported that she had been fired from her job, and that she had experienced a panic attack about two weeks prior to the appointment. Id. Ms. Ferere next saw Dr. Spahic-Mihajlovic on June 4, 2001. The notes from that day indicate, again, that Ms. Ferere's condition was largely the same. Although she apparently reported feeling "more depressed," Dr. Spahic-Mihajlovic indicated that her orientation, speech, movement, memory, attention, thought processes, affect, mood and judgment were all within normal limits, her associations were intact and she was experiencing no suicidal or homicidal ideations. Id. at 119. progress nodes from June 27, 2001 show that Ms. Ferere reported experiencing headaches, mood swings and anxiety attacks, and continued to express concern about her medication. Id. at 120, Again, Dr. Spahic-Mihajlovic indicated that her orientation, speech, movement, memory, attention, thought processes, affect, mood and judgment were all within normal limits. Id. at 119. Progress notes from July 23, 2001 indicate that Ms. Ferere reported feeling depressed and that she was "still crying"; Dr. Spahic-Mihajlovic noted that Ms. Ferere's mood was depressed, but otherwise placed her within normal limits. Id. at 121. Progress notes from August 20, 2001 indicate that Ms. Ferere reported her anxiety attacks were worsening; she reported feeling very down and depressed, and feeling that she "can't go back to work at this time." Id. at 122. Despite these reports from her patient, Dr. Spahic-Mihajlovic indicated that Ms. Ferere's mood was within normal limits. Id. According to Dr. Spahic-Mihajlovic's progress notes from September 19, 2001, Ms. Ferere reported that her anxiety attacks were triggered by her medication. Id. at 123. On that date, Dr. Spahic-Mihajlovic indicated that Ms. Ferere's mood was depressed but that everything else was within normal limits. Id. In the September 19 progress notes, Dr. Spahic-Mihajlovic also indicated that Ms. Ferere had been on disability for the last six months, and that she was going to suggest that Ms. Ferere go back to work on a part-time basis. Id. Progress notes from October 20, 2001 indicate that Ms. Ferere's mood continued to be depressed, and that her attention had slipped to fair; otherwise, Dr. Spahic-Mihajlovic placed Ms. Ferere within normal limits. Id. at 124. Progress notes from December 17, 2001 show that Ms. Ferere was feeling "down in the dumps" and forgetful; she was experiencing anxiety once a week and having a little trouble sleeping. Id. at 125. Dr. Spahic-Mihajlovic indicated that Ms. Ferere's mood was depressed and that her affect was blunted, but that she was otherwise within normal limits. Id. Progress notes from January 30, 2002 show that Ms. Ferere was feeling ...


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