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MAYNARD v. BARNHART

August 12, 2004.

LARRY K. MAYNARD, SR., 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

Plaintiff, Larry K. Maynard, Sr., moves this Court for Summary Judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, to reverse the final decision of the Commissioner of Social Security (the "Commissioner"), which denied his claim for Disability Insurance Benefits ("DIB"). See 42 U.S.C. § 405(g), 1383(c) (West 2004). In the alternative, Plaintiff seeks an order remanding the case to the Commissioner for further inquiry and evidence. The Commissioner has filed a Cross-Motion for Summary Judgment, which requests this Court to affirm its final decision. For the reasons set forth below, this Court reverses and remands the Commissioner's decision. PROCEDURAL HISTORY

On September 15, 2000, Plaintiff filed two applications with the Social Security Administration ("SSA"): (1) an application for DIB, claiming that a bulging disc on his spine rendered him disabled as of April 26, 2000, (R. at 55-57, 69.); and (2) an application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. (R. at 225.) On November 20, 2000, the SSA denied both applications, stating that Plaintiff still had the ability to perform light work, despite his medical condition (R. at 230.)

  Plaintiff disagreed with the SSA's decision, and on January 16, 2001, Plaintiff filed a "Request for Reconsideration" with the SSA for both the DIB claim, (R. at 35-36.), and the SSI claim. (R. at 234-37.) On April 12, 2001, the SSA reaffirmed its denial of Plaintiff's claims.

  On December 26, 2002, the Administrative Law Judge ("ALJ"), Michael G. Logan, issued an unfavorable decision, concluding that Plaintiff was not disabled, because Plaintiff lacked "objective signs of a disabling back condition." (R. at 14-23.)

  On January 6, 2003, Plaintiff filed a request with the Appeals Council to review the ALJ's December 26, 2002 decision. (R. at 13A.) The Appeals Council denied Plaintiff's request for review on July 31, 2003, concluding that Plaintiff's grounds for disagreement did not warrant changing the ALJ's decision. (R. at 6-9.) As a result, the ALJ's decision stands as the final judgment of the Commissioner, and is now the subject of the motions before the Court. (R. at 6.)

  STATEMENT OF FACTS

  A. Evidence Presented at Plaintiff's Hearing

  1. Plaintiff's Testimony

  At the hearing on October 18, 2002, Plaintiff, a forty-three-year-old male, testified that he had been married for twenty-five years, and has four sons. (R. at 252, 290.) Two of his grandchildren live with Plaintiff and his wife. (R. at 252.) Plaintiff testified that he was recently evicted from his home, and now he and his family reside in temporary housing. (R. at 253.) Plaintiff testified that he recently gained 20 pounds, claiming that his condition prevented him from enjoying activities such as football and basketball. (R. at 252.) Plaintiff has not possessed a driver's license for the past 20 years. (R. at 254.) Plaintiff explained that his inability to read prevented him from taking a written driver's examination. (Id.) Plaintiff attended school for twelve years, focused on vocational courses (e.g., painting and sanding for body fender repair work), and received a diploma. (R. at 254-55.) Plaintiff testified that he is illiterate. (R. at 279.) For the last seventeen years, Plaintiff worked as a batch maker for Crofton Laboratory, a paint manufacturer. (R. at 257.) This job typically required Plaintiff to stand all day, to lift bags weighing anywhere from 25 to 100 pounds, to move these bags from a pallet to a machine, and to turn drums weighing between 500 to 700 pounds. (R. at 257-59.)

  On April 26, 2000, Plaintiff fell three times at work. (R. at 259-60.) Despite experiencing pain, Plaintiff continued working, and visited the doctor at the end of the workday. (R. at 260.) Plaintiff informed the doctor that the pain from the three falls worsened an existing pain he had been experiencing for a couple of years. (R. at 261.) Plaintiff has not worked full time since the April 26, 2000 injury. (Id.) Plaintiff sold "snowballs" during the Summer of 2000 to earn extra money, but had to quit after three days due to his inability to lift twenty-five and fifty pound bags of ice. (Id.)

  Plaintiff testified that he experienced pain in his lower back, above his buttocks, and in his buttocks. (R. at 263.) Plaintiff testified that his pain level gets as high as "nine" (on a scale from zero to ten, with ten being the highest pain) and as low as "five," depending on the amount of physical activity (e.g., mopping a floor or washing his face is very high, but sleeping is a five). (R. 265-66.) Plaintiff also experiences headaches, and wakes up in the morning with his arms and hands feeling numb. (R. at 263.) Plaintiff wears a back brace when out on family outings or out walking, even though he can only walk a few blocks before stopping. (R. at 267.) Plaintiff takes Vicodin and Ibuprofen, as well as several other antidepressants. (R. at 264.) Plaintiff testified that, without pain medication, he could stand or walk one and one half hours during an 8-hour period, as well as sit for one and one half hours during the day. (R. at 270-71.) Plaintiff testified that his medication can make him dizzy or drowsy. (Id.) Plaintiff experienced pain in his back during the hearing, causing him to stand up a few times, as well as sit in a crooked position, which the ALJ observed. (R. at 270.) Plaintiff spends about twelve hours of each day sleeping. (R. at 272.)

  Plaintiff testified that a neurosurgeon informed him that he did not require surgery, yet he still complained of pain. (R. at 265.). Plaintiff testified that his current medical doctor was Dr. Mahesh Shah (R. at 268.) Plaintiff also received treatment from Dr. Mitchell Goldflies, a medical doctor referred by Crofton Laboratory, and Dr. Valentin Berman, a psychiatrist. (R. at 268-69.) Plaintiff testified that he had two MRIs, one in May 2000 and one in September 2001. (R. at 283.) 2. Vocational Expert's Testimony

  Julie L. Bose, the vocational expert ("VE"), described Plaintiff's work experience for the past fifteen years as that of a batch maker, which is an unskilled occupation with a heavy exertional level. (R. at 284-85.)

  The ALJ presented three hypothetical questions to the VE. (R. at 285.) In Hypothetical A, the ALJ described a forty-three-year-old, functionally illiterate person with twelve years of education, who could execute simple, repetitive tasks; use his hands and fingers for both gross and fine manipulation for ninety percent of the workday; but would need to avoid unprotected heights and dangerous machinery. (R. at 285-86.) The ALJ told the VE to presume that this person would be able to lift up to fifty pounds occasionally and up to twenty-five pounds frequently, walk frequently during the workday, and stand frequently during the workday. (R. at 285). The VE concluded that this person would be unable to perform Plaintiff's past work as a batch maker due to the heavy work. (R. at 286.) However, the VE testified that this person could perform medium, unskilled positions, such as a bagger or industrial cleaner, with an estimated 8,000 to 10,000 jobs in the Chicago metropolitan area, and a laundry worker, with an estimated 6,000 to 8,000 jobs in the same geographical area. (R. at 286-87.) In Hypothetical B, the ALJ limited the person described in Hypothetical A to using fine finger and gross hand manipulation for only sixty percent of the workday. (R. at 287.) The VE testified that this change would eliminate approximately seventy percent of the bagger positions, and approximately twenty percent of the laundry worker positions. (Id.)

  In Hypothetical C, the ALJ further restricted the person in Hypothetical A, with the following limitations: standing for only one and one-half hours in an eight-hour workday, and sitting for one and one-half hours in an eight-hour workday. (Id.) The VE testified that, under these circumstances, there were no jobs available to this hypothetical worker. (R. at 288.)

  Plaintiff's counsel inquired further about the VE's response to Hypotheticals A and B. (R. at 288-89.) The VE testified that if the individual needed to sit seven hours out of an eight-hour day at will, there would be no jobs available to the hypothetical person. (R. at 289.)

  Plaintiff's counsel next described a functionally illiterate person limited to unskilled, sedentary work, but having the ability to sit or stand at will. (Id.) The VE testified that the jobs available to the person in this hypothetical would be completely eliminated if, for example, the person experienced pain that hindered the ability to perform assembling while standing. (Id.) 3. Medical Evidence

  Plaintiff received treatment from several medical professionals from May 2000 to October 2002, following his fall at work on April 26, 2000.

  Southwest Hospitals MRI Center

  On May 9, 2000, Southwest Hospitals MRI Center performed a magnetic resonance imaging ("MRI") exam on Plaintiff. (R. at 72, 127.) Plaintiff experienced back pain during the procedure, which prevented the axial T1 images from being taken. (R. at 127.) The exam revealed a "mild diffuse annulus bulge which appear[ed] to be slightly asymmetric towards the left causing bilateral ...


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