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MONTGOMERY v. BARNHART

July 26, 2004.

HELEN L. MONTGOMERY Plaintiff,
v.
JO ANNE B. BARNHART, Acting Commissioner of Social Security Defendant.



The opinion of the court was delivered by: MICHAEL MASON, Magistrate Judge

REPORT AND RECOMMENDATION

Plaintiff, Helen L. Montgomery ("Montgomery" or "plaintiff"), has brought a motion for summary judgment seeking judicial review of the final decision of defendant Barnhart, who denied Montgomery's claim for disability insurance benefits ("DIB") and Supplemental Insurance Income ("SSI") under the Social Security Act ("Act"), 42 U.S.C. § 216, 223, 1614(a)(3). Defendant Barnhart has filed a cross motion for summary judgment asking that we uphold the decision of the Administrative Law Judge ("ALJ"). We have jurisdiction to hear this matter pursuant to 42 U.S.C. § 405(g). The District Court has referred the matter to us and for the following reasons, we recommend that the District Court remand the case back to the ALJ for further proceedings constant with this opinion.

Procedural History

  On February 23, 1999, Montgomery filed concurrent applications for DIB and SSI alleging a disability onset date of September 15, 1998. (R. 90-92, 351-35). The Social Security Administration ("SSA") initially denied Montgomery's applications on April 22, 1999 and Montgomery filed a timely request for a hearing. (R. 36-39, 355-58). Administrative Law Judge ("ALJ") Robert Karmgard conducted a hearing on February 17, 2000. (R. 382-459). On February 25, 2000, the ALJ ordered the case remanded to the SSA's state agency for further development of Montgomery's mental impairment. (R. 32-34). On May 19, 2000, the state agency denied Montgomery's applications. (R. 67-69, 364-66). A week later, Montgomery again filed a timely request for a hearing. (R. 70). On December 29, 2000, following a de novo hearing, ALJ Karmgard denied Montgomery's applications for disability benefits finding that Montgomery was able to perform a limited range of light work and was thus, not disabled. (R. 28.) See, 20 C.F.R. § 404.1567, 416.967. The Appeals Council denied Montgomery's request for review of the ALJ's decision on July 24, 2002, making the ALJ's decision the final decision of the Commissioner of Social Security. See Zurawski v. Halter, 245 F.3d 881 (7th Cir. 2001); Herron v. Shalada, 19 F.3d 329 (7th Cir. 1994).

  Plaintiff's Testimony

  Montgomery was 51 years-old at the time of the alleged disability and 53 years-old when ALJ Karmgard rendered his decision. At all relevant times, Montgomery was "approaching advanced age." See 20 C.F.R. § 404.1563(d). Montgomery had a tenth grade education and prior work experience in "picking and packing" at a warehouse. (R. 127, 122). Montgomery also worked at a variety of jobs through a temporary agency. (R. 396-403).

  At the hearing, Montgomery testified that her disability started on September 15, 1998, when she experienced her first blackout. (R. 394-96). She stated that she still experiences blackouts about twice a week. Id. Montgomery testified that she believes the blackouts began after she fell down basement stairs and injured her head. (R. 415). She stated that she experiences headaches two to three times a week, each lasting between 40 minutes and an hour. (R. 478). Despite medication, Montgomery experienced approximately 12 to 13 seizures in the past year, which she says prevent her from going out alone. (R. 412). She also stated that she has daily back pain that radiates down to her knee cap. Sometimes Montgomery has to elevate her legs with two pillows to help alleviate the pain. (R. 416, 426).

  Plaintiff's Medical Examinations

  Physical Impairments

  On March 25, 1999, Dr. Enacopol examined Montgomery at the request of the SSA. (R. 162-66). Montgomery complained of back pain, dizziness and shortness of breath with exercise, chest pressure, headaches, and fainting spells. (R. 162). Examination of Montgomery's muscoskeletal system revealed no evidence of deformities, swelling, or redness. (R. 164). However, Montgomery had limited motion in her lumbosacral spine, secondary to pain. Id. Her motor power was normal on the right side, but diminished to 4/5 on the left side, secondary to pain. (R. 165). Dr. Enacopol diagnosed Montgomery as having osteoarthritis of the back, uncontrolled hypertension, a history of heart arrhythmia, and headaches. Id.

  On April 13, a state agency physician reviewed Montgomery's medical records and completed a physical Residual Functional Capacity ("RFC") Assessment. (R. 169-76). The doctor concluded that Montgomery could perform light work with occasional postural activities such as climbing, stooping, kneeling, and crouching. Id. Specifically, the doctor found that plaintiff could not lift more than twenty pounds occasionally and ten pounds frequently. She could only sit, stand and/or walk 6 hours in an 8-hour workday and her ability to push and/or pull was unlimited.

  On April 28, Montgomery went to the Cook County Hospital Emergency Room ("ER") complaining of daily headaches for the past two months and two seizures the night before. (R. 180, 218-23). One month later, Dr. Dean Thomas Velis examined Montgomery at the request of the SSA. (R. 188-90). Montgomery told Dr. Velis that her seizures began in March, 1999 and that her most recent seizure occurred that morning. (R. 188). Dr. Velis reported that Montgomery was overweight and her symptoms were consistent with grand mal seizures. (R. 190). However, examinations of Montgomery's back and muscoskeletal and neurological systems were normal. (R. 189-90).

  A second state agency physician reviewed Montgomery's medical records and completed an RFC assessment on July 7, 1999. (R. 193-200). That doctor found that although Montgomery did not have any exertional limitations, she could never climb ladders, ropes, or scaffolds. (R. 195). The doctor also opined that due to plaintiff's seizures, she should avoid hazards like machinery and heights. The next day, Montgomery was treated in the ER for seizure activity. (R. 224).

  On August 20, Montgomery went to the neurology department of the University of Illinois at Chicago ("UIC") complaining of seven episodes of lightheadedness and a possible syncope with convulsion. (R. 210-11). Montgomery admitted to head trauma as a result of being hit by her husband (R. 210). The neurologist reported mild facial asymmetry. Id.

  A September 21 Electroencephalograph ("EEG") revealed a mild slow wave abnormality on the left temporal area of the brain, indicating a slight neurophysiological disturbance within that region. (R. 212). However, no epileptiform discharges were detected. Id. A physical exam one week later was normal, but a final report from the UIC neurology department indicated epilepsy with possible complex partial seizures. (R. 208). On September 30, Montgomery went to the UIC general medicine ...


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