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CORDER v. BARNHART

May 3, 2004.

DAVID CORDER,
v.
JO ANNE BARNHART, Defendant



The opinion of the court was delivered by: SUZANNE CONLON, District Judge

MEMORANDUM OPINION AND ORDER

David Corder seeks judicial review of a final decision of the Commissioner of Social Security ("the Commissioner") denying his application for supplemental security income ("SSI") pursuant to Title II of the Social Security Act ("the Act"), 42 U.S.C. § 405(g). The parties move for summary judgment pursuant to Fed.R.Civ.P. 56.

PROCEDURAL BACKGROUND

  Corder is 45 years old. R. 486. He has been unemployed since 1986 when he first filed for disability. He filed applications for SSI and Disability Insurance Benefits ("DIB") on June 1, 1993, amending his onset date to October 1, 1992. R. 37-40, 41-44. The Commissioner denied his claims and Corder requested a hearing before an administrative law judge ("ALJ"). Following a hearing, the ALJ denied Corder's claims. The Appeals Council set this decision aside on April 2, 1997. On remand, the ALJ issued a second decision finding that Corder was not disabled and was capable of performing light work with certain non-exertional limitations. R. 10-27. Once again, Corder sought review. After the Appeals Council denied Corder's request for review, he filed a complaint in the Northern District of illinois, This court reversed the Commissioner's final decision and remanded the matter for further proceedings to make a finding regarding the extent of Corder's impairments, the extent to which those impairments impact his ability to work, and the work available given those limitations. Corder v. Halter, No. 00 C 2714, 2001 WL 477210, at *1 (N.D. Ill. May 4, 2001). On remand, Corder's claim was assigned to another ALJ, The ALJ held two administrative hearings; she heard testimony from Corder and a medical and vocational expert, R. 482-529, 530-48. The ALJ denied Corder's application for SSI, The Appeals Council declined jurisdiction, leaving the ALJ's decision as the final decision of the Commissioner,
BACKGROUND
1. Physical History

  Corder has complained of lower back pain since he was 25 years old. He completed 10th grade, which is classified as a limited education, R. 476. His scores on achievement tests administrated during his treatment suggest his aptitude is lower. Id. Corder has been unemployed since 1986, but his past relevant employment included factory work and serviceman. This work involved frequent walking, standing, bending and lifting, Corder has a history of alcohol abuse. In 1993, he reported that he drank up to 24 beers a day, R. 112. However, Corder has been sober since April 1, 1995.

  Corder's most significant injury and symptoms arise from lower back and respiratory problems. At the May 7, 2003 hearing before the original ALJ, Corder testified that he often has difficulty rising out of bed in the morning and that it is painful for him to sustain any standing or sitting activity for more than 15-30 minutes at a time. R. 497-500. He stated that it is uncomfortable for him to drive or sit for long periods of time and that he must frequently stand or lie down to relieve the strain on his back. Id. He also lies down because his pain medication makes him tired, Id. On a typical day, he would do light housework and cook. Id. He washes out the tub. Id. He takes walks outside to the store — about three blocks away — stopping along the way due to back symptoms. Id. He can lift and carry 15 pounds. Id. About twice a week, he goes to the grocery store. Id. During the summertime, he goes fishing approximately every other day. Id.

  Medical evidence supports Corder's complaints. In 1993, an examination by Dr. Odland revealed a "tender sacroiliac, right greater than left, straight leg raising at 30 degrees." R. 204. Odland prescribed Naprosyn and Tylenol #3 for pain, Id. A month later, Odland diagnosed multiple episodes of lumbosacral pain. An x-ray suggested degenerative changes. R, 119, Odland opined that Corder's work could not include lifting, carrying or bending, R. 120. In 1995, another x-ray revealed "hypertrophic degenerative changes . . . at multiple levels . . . degenerative changes . . . at multiple levels . . . degenerative disc space narrowing at L4-L5 with sclerosis of the adjacent vertebral body end-plates." R. 334.

  In 1998, Dr. Irwin Feinberg conducted an orthopedic examination of Corder at the ALJ's request. R. 380-383. Feinberg reported that Corder's chief complaints involved asthma, painful lower left back, and a malunion of a left rib fracture that causes pain on contact, R. 380. Feinberg found that Corder suffered from symptomatic degenerative arthritis of the lumbosacral spine, bronchial asthma and degenerative disc disease of the cervical spine. R, 382. Feinberg noted that Corder's range of motion was restricted, R. 380-81. In his medical assessment of ability to perform work-related activities, Feinberg restricted Corder's ability to lift and/or carry to 10-15 pounds frequently and 15-20 pounds occasionally, due to lower back pain, R. 384, Feinberg found that Corder's ability to stand, walk, and sit were unaffected by his impairment. Id. He stated that Corder could climb, balance, kneel or crawl "occasionally" during an 8-hour day. R. 385. Feinberg noted Corder was capable of frequently stooping or crouching. Id.

  On December 27, 2002, Dr. Raman Popli examined Corder. Popli noted that Corder's speech was slightly slurred, but that the slurring did not interfere with the interview. R. 722. Popli found Corder's joints were normal with a normal range of motion. R. 723. His examination of Corder's cervical spine showed a slight reduction of the normal lumbar lordosis. R. 723. Summarizing Corder's condition, Popli opined that Corder suffered from some reduction in extension and sideward flexion at the lumbosacral spine. R, 723. Popli found Corder's physical condition, combined with his painful symptoms, limited his ability to work. He stated that "as per the claimant," Corder could carry ten pounds occasionally and less than ten pounds frequently. Popli also noted that according to Corder, his pain limited his ability to stand and walk to less than two hours per day. Id. However, Popli noted these restrictions were based on Corder's "claims of having back pain if he exceeds the limits described above, There are not any objective findings to back his claims other than limitation of extension and sideward flexion at the LS spine." R. 725.

  Corder's most recent treating physician, Dr. Bowser, noted in January 2003 that Corder's thoracic and lumbar muscles were markedly tender and that the range of motion of his back was restricted in all directions. R. 731. Bowser reported that Corder complained of pain whenever he was required to sit or stand for more than 30 minutes at a time, Id. Bowser also noted that Corder complained of inability to stoop, bend, or lift because of pain. Id. Based on his medical findings and Corder's complaints, Bowser opined Corder was unable to sit or stand for more than 30 minutes, bend, stoop, climb ladders, do overhead work, or lift more than five pounds. Id. 2. Mental Health History

  Corder contends his ability to work is limited by his limited mental capacity, Corder has been examined by numerous mental health professionals since filing his disability claim, In 1993, Dr. Diamond, a psychologist, examined Corder, Diamond reported that Corder was depressed, R, 159. Diamond administered a WAIS-R IQ test. Corder scored 71 verbal, 76 performance and 72 full scale. Id. His WRAT scores were also low. Corder was found to possess below third grade reading and spelling skills. R. 161. Corder had the math skills of a fifth grader. Id. According to Diamond, Corder possessed poor reasoning skills and a limited vocabulary, Id. On May 21, 1997, Dr. Mary Gardner examined Corder and diagnosed him as possessing borderline intellectual functioning. R. 248-52. Gardner administered the WAIS-R IQ and WRAT tests. R. 250. The results were similar: 74 verbal; 74 performance; 73 full scale; fourth grade reading; fifth grade math. Id. Gardner noted that Corder had memory problems. She stated that Corder's ability to remember locations, work-like procedures and to concentrate was limited. R. 263.

  At the hearing be (ore the second ALJ, Dr. Daniel Schiff, a psychiatrist, testified as a medical expert. He testified that prior to 1995, Corder was addicted to alcohol. R. 516. Schiff assessed Corder's intellectual abilities as borderline with IQ scores in the 70's, R. 517. He stated Corder was capable of one and two-step operations that did not require intensive concentration or long term memory. Id. Schiff noted Corder's testimony before the ALJ was precise and that he used multisyllable words. R. 520.

 3. Vocational Testimony

  James Ranke testified as a vocational expert during the May 7 and July 17, 2003 hearings before the second ALJ. R. 521-28, The ALJ posed familiar hypothetical to Ranke. The ALJ asked Ranke to consider the employment prospects for a 35-45 year-old man with an eleventh grade education, but who could only read at the third grade level and perform math at the fifth grade level, with Corder's previous work experience, who could lift up to 20 pounds occasionally, 10 pounds frequently, and sit, stand, or walk as required with no more than occasional bending to the floor, R. 522. She added the additional caveat that the hypothetical employee could not perform detailed or complex tasks that required more than simple operations, in a setting with no pulmonary irritants. Id. Ranke responded that a person with these limitations could perform food preparation jobs, library clerk positions, mail clerk positions, ...


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