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JOHNSON v. BARNHART

June 23, 2004.

RICHARD JOHNSON, Plaintiff,
v.
JO ANNE B. BARNHART, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.



The opinion of the court was delivered by: GEORGE LINDBERG, Senior District Judge

MEMORANDUM AND ORDER

Pursuant to 42 U.S.C. § 405(g), Plaintiff seeks judicial review of the Commissioner's final decision to deny Plaintiff's applications for a period of disability and disability insurance benefits and Supplemental Security Income. Plaintiff's complaint, inter alia, asks the Court to (1) find that Plaintiff is entitled to the benefits sought in his applications or, alternatively, reverse the Commissioner's final decision with respect to Plaintiff's applications and remand the case for additional administrative hearings and (2) award Plaintiff his attorneys' fees.

Plaintiff and Defendant have filed cross-motions for summary judgment.*fn1 Plaintiff's motion is hereby granted in part and Defendant's motion is hereby denied.

  Legal Standards — Summary Judgment

  It is well-established that "[c]ross-motions for summary judgment are the standard method for presenting a case to a district court for decision on the record compiled by the administrative tribunal that the court is reviewing." Dale M. v. Bd. of Educ. of Bradley-Bourbonnais High Sch. Dist. No. 307, 237 F.3d 813, 816 (7th Cir. 2001) (citations omitted); see also Scheck v. Barnhart, 357 F.3d 697, 699, 703 (7th Cir. 2004) (affirming district court decision denying plaintiff's cross-motion for summary judgment and granting Commissioner's cross-motion for summary judgment). This Court will grant summary judgment when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); In re Chambers, 348 F.3d 650, 654 (7th Cir. 2003) ("All facts and inferences are viewed in the light most favorable to each nonmoving party. . . .") (citation omitted).

  Factual and Procedural Background

  Plaintiff did not receive a high school diploma; after completing the tenth grade, he left school to care for his sick mother.*fn2 Plaintiff has held a number of different jobs, including (1) wheelchair attendant/cart driver, (2) construction worker, (3) electrician, (4) hauler, and (5) package loader. However, he last worked in 2001, answering the telephone at his brother's construction company for approximately one month. Prior to that temporary position, Plaintiff was last employed as a construction worker in 1999. Plaintiff's employment history consists of semi-skilled positions that required light, medium, and/or heavy levels of exertion. When he was about twenty-five (25) years old, Plaintiff fell from a truck while at work. At the time of the accident, Plaintiff received medical treatment and, shortly thereafter, resumed working.*fn3

  On July 20, 2000, Plaintiff underwent a laparoscopic nephrectomy. His pre-operative evaluation was described as unremarkable. Testing performed prior to surgery included an echocardiogram, chest x-rays, an abdominal x-ray, and a CT scan of the abdomen. None of these tests disclosed that Plaintiff suffered from any abnormalities, renal or otherwise. Immediately following the procedure, no complications were reported. On August 4, 2000, Plaintiff's scars were well-healed except for an open, mid-line scar where fluid had been drained. By August 11, 2000, the wound was completely healed with no reported complaints or complications. Nevertheless, Plaintiff did not resume construction work because doctors had prohibited him from engaging in heavy lifting.*fn4

  Alleging that he became disabled on March 14, 2000, Plaintiff filed applications for a period of disability, disability insurance benefits, and Supplemental Security Income on July 31, 2000. On December 13, 2000, Dr. Peter Biale examined Plaintiff at the request of the Bureau of Disability Determination Services. Dr. Biale made a number of findings with respect to Plaintiff's physical condition:
(1) Plaintiff's extremity joint motion, extremity strength, and reflexes were normal and his sensation was intact.
(2) Plaintiff experienced no acute distress or atrophy, moved around with no difficulty or discomfort, and ambulated normally.
(3) Plaintiff had full range of motion in the cervical and dorsal spine and reduced motion in the lumbosacral spine.
(4) Plaintiff had difficulty squatting and heel walking/toe walking, complained of pain when he moved between a sitting position and a supine position, and exhibited tenderness in the right and left paravertebral muscles.
(5) Plaintiff's bilateral straight leg raising was limited to seventy (70) degrees, his flexion was limited to sixty (60) degrees, his extension was limited to fifteen (15) degrees, and his lateral flexion was limited to fifteen (15) degrees, bilaterally.
On December 22, 2000, Dr. E.C. Bone reviewed Plaintiff's medical records and assessed his ability to work. Dr. Bone's findings are reflected in Plaintiff's Residual Functional Capacity Assessment ("RFC"). Plaintiff's RFC indicated that Plaintiff could frequently lift and/or carry up to ten (10) pounds, occasionally lift and/or carry up to twenty (20) pounds, stand and/or walk for a total of at least two (2) hours in an eight (8) hour work day, and sit for a total of about six (6) hours in an eight (8) hour work day. Additionally, Plaintiff was able to frequently balance, kneel, crouch, and crawl and occasionally climb and stoop. Relying on Plaintiff's RFC, a Bureau of Disability Determination Services Adjudicator concluded: (1) Plaintiff's lifting and carrying capacity were sufficient for light work, (2) Plaintiff's standing and walking limitations necessitated that Plaintiff's ability to engage in sedentary work be explored, (3) the postural and environmental restrictions noted in Plaintiff's RFC did not substantially reduce this range of work, and (4) Plaintiff was capable of performing various jobs, but incapable of performing any of his past relevant work.

  Plaintiff's applications for benefits were denied on January 19, 2001. On February 2, 2001, Plaintiff timely filed a request for reconsideration of his applications. Upon reconsideration, Plaintiff's applications were once again denied on May 17, 2001. Shortly thereafter, Plaintiff filed a formal request to have his case heard by an administrative law judge ("ALJ"). Plaintiff's hearing was originally noticed for June 27, 2002. Following a brief continuance to allow Plaintiff an opportunity to obtain counsel, the hearing was conducted on August 13, 2002.

  During the August 13, 2002 hearing and in other papers, Plaintiff provided the following testimony and information concerning his physical condition. Plaintiff was thirty-five (35) years old at the time of the hearing. He could not stand or sit for prolonged periods of time or walk, uninterrupted, a distance of more than about two blocks. He could partially bend at the waist, but not backwards. Additionally, it was painful for him to kneel or squat, and he could not squat repeatedly or maintain a squatted position. Although he was able to lift his thirty (30) to forty (40) pound son, he had to squat prior to doing so and could only hold him for a short time.

  Plaintiff further testified that he felt pain throughout the entire lower left side of his body, including his legs. Moreover, Plaintiff's legs became numb if he sat for too long, and he did not drive because of stiffness in his legs. His back pain also interfered with his nighttime sleeping and forced him to take frequent naps during the day. To relieve this pain, Plaintiff took ibuprofen and prescription pain medications,*fn5 applied topical ointments, and bathed in Epsom salt. He also exercised as recommended by his doctor, but the exercises did not help to alleviate his pain.

  During the hearing, Plaintiff explained that he could travel by bus. However, he was not able to travel by elevated train or train because both modes of transportation irritated his back. Although he could provide only limited assistance with household chores, Plaintiff was able to shop for groceries, carry light grocery bags, cook, and spend the day with his children. In addition, he could read, play cards and games, attend church, and watch television. However, he was not able to perform any of his past jobs because he could not engage in heavy lifting or operate construction equipment for any extended period of time. Plaintiff testified that he did not have health insurance or a medical card, but that he had received medication and treatment at a county medical facility and from a doctor who had moved out of the country prior to the August 13, 2002 hearing. He had also received treatment at the St. Bernard Hospital and Jackson Park Hospital emergency rooms. Plaintiff explained that his treating physicians recommended he see a specialist, but that he could not afford to do so.

  Medical records provided to the ALJ indicated that Plaintiff sought emergency room care on multiple occasions during the years 1999 to 2001. The records reflected that on several of those occasions Plaintiff left the emergency room prior to being discharged and/or fully examined and treated by a physician. Plaintiff also sought emergency room treatment at Jackson Park Hospital on ...


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