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STITZER v. BARNHART

June 25, 2004.

LISA STITZER, 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

Lisa Stitzer ("Plaintiff") seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner"). See 42 U.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 December 30, 2003. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73.

I. BACKGROUND

  Plaintiff filed for DIB on April 21, 2000, alleging disability on September 30, 1999. (Tr. 149). Plaintiff's application for benefits was denied on September 21, 2000. (Tr. 111). On October 24, 2000, Plaintiff filed a request for reconsideration. (Tr. 119). Plaintiff's request for reconsideration was denied on February 9, 2001. (Tr. 118). Plaintiff then filed a request for a hearing before an Administrative Law Judge ("ALJ") on February 27, 2001. (Tr. 121). Plaintiff appeared, with counsel, before an ALJ on May 1, 2002. (Tr. 31). In a decision dated November 29, 2002, the ALJ found that Plaintiff was not entitled to DIB. (Tr. 28). On January 23, 2003, Plaintiff requested a review of the ALJ's decision by the Appeals Council. (Tr. 11). On May 22, 2003, the Appeals Council denied Plaintiff's request for review. (Tr. 10).

  II. FACTS

  Plaintiff was born June 9, 1962 and was thirty-nine years old at the time of her May 2002 hearing. (Tr. 46). Plaintiff graduated from high school but did not pursue any further education. Plaintiff testified she has trouble with reading and arithmetic but is able to write short messages and perform basic addition and subtraction. (Tr. 47). Additionally, Plaintiff stated that since March 2002 she could not drive due to a seizure she suffered in March 2002. Plaintiff's husband drove her to her May 2002 hearing. At the time of her hearing, Plaintiff was living with her husband and her teenage daughter. (Id.). Plaintiff suffers from asthma, seizure disorder, depression and anxiety. (Tr. 18). It is for these reasons, and some others, that Plaintiff claims to be disabled.

  Plaintiff suffers from seizures. The severity of Plaintiff's seizures varies. In March 2002 Plaintiff suffered what she called a "grand mal seizure." (Tr. 49). In addition to the grand mal seizure, which appears to only happen once or twice a year, Plaintiff testified that she suffers from "petit mal seizures" a few times a week. (Id.). With a petit mal seizure, Plaintiff stated she just sits and stares while other times she physically jerks uncontrollably. (Id.). The petit mal seizures first started after Plaintiff's surgery in September 30, 1999. With regards to the grand mal seizures, Plaintiff stated she had one in 2002 (as of May 2002), two in 2001, two in 2000 and two in 1999. (Tr. 49-50).

  Plaintiff's most recent job was performing home care for a Ms. Miller. From late 1997 to September 1999, Plaintiff testified that she would feed, bathe and generally take care of Ms. Miller. (Tr. 51). General care included such household duties as vacuuming and washing the dishes. Plaintiff testified that her job at Ms. Miller's sometimes required lifting of fifty pounds or more. Plaintiff worked on the weekends for forty eight hours (Ms. Miller had another person during the week). A normal work day at Ms. Miller's would require Plaintiff to spend about twenty five percent of her time on her feet and the rest of the day sitting down. (Tr. 52).

  Prior to working for Ms. Miller, Plaintiff performed general office work through a temporary service. Plaintiff's temporary jobs usually included filing, general reception work and data entry. (Id.). Plaintiff was usually not required to lift more than ten pounds at these jobs. (Id.). Plaintiff's temporary work required Plaintiff to sit for seven hours. (Tr. 53). Plaintiff testified that she would normally work about an hour before standing up to take a break. (Id.). When asked by the ALJ, Plaintiff stated that she cannot perform the above mentioned duties now because of her seizures, which Plaintiff stated prevent her from being able to concentrate and have created memory problems for Plaintiff. (Id.). Plaintiff was unable to clearly describe what she meant by memory problems when asked by the ALJ.

  Prior to her temporary work, Plaintiff worked for a couple of months at Swiss Colony in 1997. (Tr. 54). At Swiss Colony, Plaintiff answered the telephone and did data-entry. (Id.). Plaintiff's job at Swiss Colony required no lifting or carrying but, like her temporary work, did require Plaintiff to sit for seven hours with hourly breaks. (Tr. 55).

  Between 1993 and July 1996, Plaintiff worked for the Keen Company. (Id.). Plaintiff's job at the Keen Company consisted of data-entry, general customer service, general office work, filing and tracking packages. (Id.). Like her subsequent jobs, Plaintiff's job at Keen Company required no lifting or carrying but did require Plaintiff to sit for seven hours with occasional breaks. (Id.).

  Between 1984 and 1993, Plaintiff worked as a transportation clerk for Sharp Electronic. (Tr. 56). At Sharp Electronic, Plaintiff performed data-entry and general customer service which consisted of telephone use and filing. (Id.). Plaintiff's job at Sharp Electronic required no lifting or carrying but, like her job at the Keen Company, did require Plaintiff to sit for seven hours with occasional breaks. (Id.).

  A normal day for Plaintiff usually starts with her waking up around 6:30 a.m. (Tr. 57). After waking, depending on the day, Plaintiff testified that she does simple housework such as sweeping, vacuuming (once a month), laundry (once a week), and grocery shopping. (Id.). Plaintiff does not visit friends or family or engage in hobbies. Additionally, on a normal day, Plaintiff will spend an hour or so on the internet. (Tr. 58). Plaintiff stated she does not watch television during the day, but instead, when not on the computer or doing housework, Plaintiff stated she just "sit[s] on the couch and maybe think about stuff." (Id.).

  On a normal day, Plaintiff usually feels tired, fatigued and weak. According to Plaintiff, these physical feelings have been the same since her September 1999 accident. (Id.). Additionally, Plaintiff stated she suffers from tension and headaches and her bones ache all over her body. (Tr. 61). Plaintiff's headaches, like some of her other physical ailments, started after her 1999 surgery. These headaches, which Plaintiff described as migraines, occur a few times a month and last most of the day. (Tr. 62). Lastly, Plaintiff stated she suffers from anxiety type symptoms or depression on a daily basis. (Tr. 67).

  Plaintiff's husband, Arthur Stitzer ("Mr. Stitzer"), appeared before the ALJ during Plaintiff's May 2002 hearing. (Tr. 87). Mr. Stitzer first testified about Plaintiff's grand mal seizures. Mr. Stitzer stated Plaintiff usually has a grand mal seizure "six, seven, eight times a month on an average, maybe one or two a week, almost always in the evening at night." (Tr. 88). When asked how he knew the difference between a grand mal and a petit mal, Mr. Stitzer stated Plaintiff shakes all over and she loses control of her arms and legs. (Id.). Mr. Stitzer stated Plaintiff usually does not know she had a seizure. With regards to Plaintiff's petit mal seizures, Mr. Stitzer stated those usually occur during the day when he observes Plaintiff "space out for very briefs periods of time." (Tr. 89). According to Mr. Stitzer, Plaintiff's petit mal seizures occur "maybe on a monthly basis, eight, nine times, something like that." (Id.). With regards to daily activities, Mr. Stitzer testified that he does all the driving because Plaintiff is unable to drive due to her seizures. (Tr. 91). Additionally, Mr. Stitzer stated that he helps Plaintiff with the housework and occasionally with dinner. (Id.).

  Vocational Expert, Christopher Yep, appeared before the ALJ during Plaintiff's May 2002 hearing. (Tr. 94). Mr. Yep first testified that Plaintiff's prior home care position would be an unskilled position performed at a medium level of exertion. (Id.). Plaintiff's general office work would be semi-skilled and her work as the traffic coordinator and transportation clerk would be skilled. (Id.). Both the general office work and the traffic coordinator and transportation clerk jobs would be performed at the sedentary level of exertion. (Id.). The ALJ then asked Mr. Yep to assume the following:
I.'m going to ask you to assume a hypothetical female individual who is 39 years of age. . . . Has a high school education with the ability to read, write, and use numbers. Let's say basic numbers. All right. Simple addition and subtraction. Has some prior work. The same prior work history as [Plaintiff] in this case with the capacity to perform work with the following and no other additional limitations. May perform a full range of work at all exertional levels, but must avoid concentrated exposure to allergens, concentrated exposure in the work place to allergens which would include pollen. I believe dog and cat hair and mold. . . . And must also avoid exposure, or concentrated exposure to fumes, odors, dust, gases, and other pulmonary irritants. The individual must also avoid exposure to hazards such as exposed unprotected heights or excavations and exposed unprotected dangerous machinery. And the individual may not operate a motor vehicle as part of assigned work duties.
(97-98). Based on the above, Mr. Yep stated that there would be no impact on past relevant work. (Tr. 98). The ALJ next asked Mr. Yep to further assume the following modifications:
[l]ifting and carrying is limited to up to 20 pounds on an occasional basis and ten pounds frequently with sitting, standing, and walking limited respectively and with normal breaks up to six hours each in an eight hour day. The individual may not climb ladders, ropes or scaffolds. May otherwise climb ramps and stairs, balance, stoop, kneel, crouch, and crawl on no more than occasion [sic] basis.
(Tr. 98-99). Based on the further limitations, Mr. Yep stated such an individual could not do the home care work. However, the individual could perform all of Plaintiff's other prior work. (Tr. 99) The ALJ then asked Mr. Yep to assume further the following modifications:
All right. You are to assume further the individual does not possess the capacity to, let's say recall and carry out complex or detailed instructions, or to maintain such extended attention or concentration as would be required for the performance of complex or detailed tasks at a sustained workman like pace. The individual would however retain the capacity to understand, recall, and carry out short simple instructions and to focus upon and attend to and carry out simple tasks at a sustained workman like pace. Let's also, we didn't add in there that the individual should not have to perform more than minimum use of basic math skills.
(Id.). Based on the above, Mr. Yep stated that such limitations would eliminate the remainder of the prior work because of Plaintiff's remaining jobs were semi-skilled to skilled. (Id.).

  Focusing on the area of unskilled work within the region of the State of Illinois, the ALJ asked Mr. Yep whether, based on the limitations stated above, an individual could perform any work. In response, Mr. Yep stated that, at both the sedentary and light level, the individual could perform assembly (32,747 positions), sorting (12,228 positions) and packaging (22,371 positions). (Tr. 100). While the packaging position listed by Mr. Yep would only be light work, the assembly and sorting positions would be forty percent sedentary (approximately 12,800 positions and 4,800 positions respectively) and sixty percent light. (Id.).

  Again, the ALJ asked Mr. Yep to further assume

 
that lifting and carrying would be limited to ten pounds on an occasion [sic] basis and to lighter items such as small hand tools, individual case files, could be performed on a frequent basis. And let's further state that standing and walking would be limited to a combined total of two hours in an eight hour day.
(Tr. 101). Based on these last limitations, Mr. Yep stated such limitations would eliminate the packaging position and the light work assembly and sorting positions, but would not eliminate the sedentary assembly and sorting positions. (Tr. 101-102). The ALJ then asked Mr. Yep to assume further that
 
standing and walking would be limited to let's say a maximum of 15 minutes continuously without being able to sit down for one or two minutes. It could still be up to two hours in an eight hour day, but 15 minutes continuously without being able to sit for a minute or two.
(Tr. 102). Mr. Yep stated that such further limitations would not effect the remaining jobs because they are primarily sedentary.
  Finally, the ALJ asked Mr. Yep to assume, separate and apart from any previous hypothetical, the following:
she cannot stand for any duration continuously. . . . That sitting is less than two hours in an eight hour day. Must be able to shift positions at will from sitting, standing, or walking. Would require unscheduled breaks at approximately 30 to 45 minute intervals. Would require rest periods, apparently at that for as long as one hour. Could lift less than ten pounds on an occasional basis. . . . Can use the hands to grasp, turn, and twist objects ten percent of the day. Use the fingers for fine manipulation ten percent of the day. Reaching, including overhead with the upper extremities for only five percent of the day. Can bend and twist at the waist five percent of the day. Also limited exposure to cold, extremes of heat and cold, high humidity, chemicals, solvents, cleaners, soldering fluxes, cigarette smoke, perfumes, fumes, odors, dust, and gases, pollen, dog and cat hair, and mold. And does not have the capacity to tolerate even low stress jobs.
(Tr. 103-104). Based on the above, Mr. Yep stated such individual could not perform Plaintiff's prior work or perform any of the previously mentioned sedentary jobs because of the restrictions on breaks and the ten percent use of the hands. (Tr. 104).

  III. MEDICAL HISTORY

  In September 1999, while driving her car, Plaintiff began to realize that she could not move her right leg and had no sensation in her right leg. Plaintiff apparently blacked out and woke up after her car had gone off the road and rolled over. (Tr. 319). Plaintiff was brought to the Saint Anthony Medical Center Emergency Room in Rockford, Illinois. (Id.). A CAT scan of Plaintiff's brain was taken. The CAT scan revealed a "hyperdense mass in the left frontal lobe with a surrounding area of edema." (Tr. 321). Additionally, a localized mass effect with mild subfalcine herniation and compression of the lateral ventricle was noted. (Id.). No acute hemorrhage or hematoma was noted. (Id.). Contrast scans of Plaintiff's brain were then taken which revealed the mass in Plaintiff's left frontal lobe to be a large cerebral arteriovenous malformation ("AVM"). (Tr. 319).

  After the CAT scan, Plaintiff saw Dr. M.M. Soriano. (Id.). Dr. Soriano's physical exam of Plaintiff revealed Plaintiff's Cranial nerves II through XII were intact, her lungs were clear, normal S1 and S2, and her reflexes, sensory and motor exam was normal. (Id.). Dr. Soriano's impressions of Plaintiff, based on his physical exam and Plaintiff's CAT scan, were that Plaintiff had a "giant AVM." (Id.). Ultimately, Dr. Soriano ordered an ambulance transport Plaintiff to Dr. Gerald Brune at the University of Illinois, Chicago for treatment. (Id.).

  On October 1, 1999, Plaintiff began testing at the University of Chicago, Illinois. (Tr. 307). Specifically, Plaintiff first had a Weinberg catheter positioned in her right common carotid artery. Selective injection showed filling of the distal common carotid, internal carotid artery cervical portion and external carotid artery. (Id.). An aneurysm was noted at the C2 level of the vertebral body measuring approximately 7 mm in diameter. The distal common and external carotid arteries appeared normal. (Id.). Another Weinberg catheter was placed in Plaintiff, this time in her right internal carotid artery. (Id.). Selective injection showed filling of the distal internal carotid and anterior middle cerebral arteries. A gross enlargement of the left anterior cerebral artery A2 segment and the pericallosal arteries was noted. The pericallosal artery measured approximately five times its normal size and had two fusiform aneurysms along its path. (Id.). Another Weinberg catheter was positioned in Plaintiff's left common carotid artery. (Tr. 308). Selective injection showed filling of the left carotid cervical circulation. (Id.). The distal common and external carotid arteries appeared normal and the left internal carotid artery appeared diffusely enlarged and tortuous. (Id.). A final Weinberg catheter was positioned in Plaintiff's left vertebral artery. (Id.). Selective injection showed filling of the posterior circulation intracranially. (Id.). The left vertebral artery and basilar trunk were enlarged diffusely and some enlargement of the left posterior cerebral artery was noted. (Id.). In conclusion, radiologist Dr. Vicotr Aletich reported the cerebral angiography demonstrated a high flow arteriovenous fistula supplied predominantly by the left pericallosal artery in an antegrade manner. (Tr. 309). This finding, according to Dr. Aletich, was associated with diffuse enlargement of both carotid arteries as well as the vertebral arteries and basilar trunk. Multiple aneurysms situated on both internal carotid arteries and the left pericallosal artery were also noted, presumably related to the increase flow. (Id.).

  On October 5, 1999, Dr. John Hughes, of the University of Illinois at Chicago Medical Center's Department of Radiology, issued an electroencephalographic report. (Tr. 310). In his report, Dr. Hughes wrote the following:
The background rhythm in this record consists of well organized and moderately well developed waves of 9½ to 10 per second bilaterally synchronous and symmetrical. Intermixed are 2 to 3 second waves on the left temporal area, diffuse 3 to 5 per second waves and slow transients on the right temporal area. . . . IMPRESSION: The sharp waves on the temporal areas indicate the presence of discharging foci within those regions. In addition a moderate degree of focal slow wave abnormality was seen on the left temporal area and a mild to moderate degree on the right temporal area indicating a neurophysiological disturbance within those regions. Finally a mild to moderate degree of diffuse disorder is seen indicated a generalized cerebral involvement.
(Id.).

  Also on October 5, 1999, Dr. Michael Thorton, of University of Illinois at Chicago's Medical Center, performed a cerebral angiogram and embolization of her left parenchymal arteriovenous fistula. (Tr. 312). Dr. Thorton reported that "two injections of pure glue were performed into the arteriovenous fistula fed from the left pericallosal artery. This resulted in apparent large decrease flow through the fistula." (Id.). The fistula, according to Dr. ...


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