Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

NESBITT v. BARNHART

September 13, 2004.

MICHAEL W. NESBITT, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge

MEMORANDUM OPINION AND ORDER

This case comes before this Court on the parties' cross-motions for summary judgment. Plaintiff Michael W. Nesbitt ("Claimant") challenges the decision of Defendant Jo Anne B. Barnhart, Commissioner of Social Security ("Commissioner"), claiming that her denial of his disability insurance benefits ("DIB") should be reversed or remanded because the decision contains errors of law and is not supported by substantial evidence. For the reasons that follow, this Court affirms the Commissioner's decision.

I. BACKGROUND FACTS

  A. PROCEDURAL HISTORY

  Claimant filed an application for DIB on December 14, 1999, R. 93-95, alleging that he became unable to work due to back pain with an onset date of February 6, 1998. R. 115. Claimant was insured for DIB through June 25, 2002. R. 16. His claim was denied initially, R. 29-32, and upon reconsideration. R. 34-36. Plaintiff timely requested a hearing, R. 37, which was held first on July 17, 2001 before Administrative Law Judge ("ALJ") Alan Jonas. R. 239-69. Following that hearing, the ALJ received additional information from a vocational expert that prompted a supplemental hearing. R. 271. The supplemental hearing was held on February 27, 2002. R. 270-310. On June 25, 2002, the ALJ issued an unfavorable decision, denying Claimant DIB and finding him not disabled. R. 11-26. On September 26, 2003, the Appeals Council denied Plaintiff's timely request for review, making the ALJ's decision the final decision of the Commissioner, R. 6-7. Claimant then filed this action against the Commissioner pursuant to 42 U.S.C. § 405(g). The parties have consented to this Court's jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c)(1).

  B. HEARING TESTIMONY

  The ALJ held two hearings in this case. At the July 17, 2001 hearing, the ALJ heard testimony from a medical expert and from Claimant, who appeared with counsel. R. 239-69. At the supplemental hearing on February 27, 2002, the ALJ heard testimony from two vocational experts. R. 270-310.

  1. Claimant's Testimony

  Claimant, who was born on November 7, 1954, was forty-seven years old at the time of the first hearing, R. 93, and had completed high school and one year of college. R. 121. Prior to his alleged disability date, Claimant worked first as an auto mechanic and then as a sheet metal worker. R. 116. As a sheet metal worker, Claimant, who was a shop foreman, constructed and installed heating and air conditioning units and performed duct work. Id. This work entailed stooping, kneeling, crouching, and crawling for at least two hours every day, and walking or standing for seven hours every day. Id. He frequently lifted fifty pounds or more. Id.

  Claimant's injury occurred when he fell from a ladder at work and consequently sustained multiple disc annular tears, resultant intractable back pain, and an inability to ambulate. R. 169. At the emergency room, he was diagnosed with acute back pain strain versus disc herniation, and appeared very uncomfortable. R. 158-59. After being transferred to another hospital, Claimant underwent six days of bed rest and treatment. R. 169. He was discharged after achieving some improvement and minimal pain. Id.

  He now claims to suffer from back and right leg pain and to be limited from overhead work and bending. R. 244-45. Daily nerve pinches limit his walking, sitting, and sleeping abilities. R. 245. In order to relieve his pain, Claimant moves around by switching his sitting or standing positions. R. 248-49. He takes pain relievers. R. 243.

  Since he suffered his injuries, Claimant has lived alone in a trailer, R. 246, performing some household chores. R. 247. However, he can not perform house maintenance or stand up long enough to wash dishes. R. 248. He drives a pick-up truck with an automatic transmission, although he frequently pulls over or stops driving because of his pain. R. 245-46, 250. He works at his home computer, though he spends no more than an hour doing that work. R. 248. Claimant, however, believes that he may be able to perform a desk job involving computer work if he were allowed to move around. R. 249.

  2. Irwin Rich, M.D. — Medical Expert

  At the July 17, 2001 hearing, Dr. Irwin Rich, an orthopedic surgeon, testified as the Medical Expert ("ME"). R. 252-67. After reviewing the files and interviewing Claimant, the ME determined that Claimant has an impairment, R. 255, which limits Claimant's work capacity as follows:
may lift 10 pounds occasionally at table height, may carry 10 pounds 15 feet, four times an hour in an eight hour day, sit and stand option is desirable, no bending, squatting, kneeling, reaching above mid chest height, or climbing ladders, may push 10 pounds total, wield device 15 feet, four times an hour
R. 256. Additionally, Claimant cannot stand for a couple of hours and sitting would depend on the comfort of the chair. R. 258. The limitations are based upon a reduction in the cushioning effect of the lumbar interadibal discs, R. 264-65, although the impairment is a result of mild disclogenic sclerosis in the lumbar sacral spine, deficiency of the shock-absorbing action of the lumbar discs, and mild disc bulges, which limit back function. R. 257. There are, however, no impingements on any of the lumbar nerves. Id. The ME concluded that the degree and frequency of pain Claimant complained of is greater than expected and not consistent with the objective evidence. R. 262.

  3. Vocational Experts

  a. Grace Gianforte

  Vocational Expert ("VE") Grace Gianforte reported that 4,500 jobs exist in the Chicago metropolitan area that conform to Claimant's limitations. R. 24. She derived her statistics from the State of Illinois Department of Employment Security Economic Information and Analysis Division from 1990 through 2005. R. 295.

  b. Susan Entenberg

  Vocational Expert Susan Entenberg classified Claimant's job as a sheet metal worker as heavy and skilled, from which there are no transferable skills to sedentary or light work. R. 281. She testified that Claimant essentially should be restricted to sedentary sit/stand work, which includes cashier-type positions, some clerk jobs, but not a lobby attendant. R. 282. Using the Occupational Employment Statistics and Wages Estimates from the Department of Labor, VE Entenberg found a total of 18,790 sit/stand jobs suitable for Claimant. R. 283-85. The VE testified that her assessment would not change even if Claimant could do light work while ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.