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BARONE v. BARNHART

September 15, 2004.

KIM BARONE, Plaintiff,
v.
JOANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant.



The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge

REPORT AND RECOMMENDATION

Kim Barone ("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 II of the Social Security Act (the "Act"). 42 U.S.C. § 416, 423. This matter is before the Magistrate Judge for Report and Recommendation pursuant to Rule 72(b) and 28 U.S.C. § 636(b)(1)(B).

I. BACKGROUND

  Plaintiff filed for DIB on April 27, 2001 (Tr. 112A), and her application for benefits was denied on July 2, 2001. (Tr. 86). Plaintiff filed a request for reconsideration which was accepted, but her application was denied after reconsideration on October 22, 2001. (Tr. 14). Plaintiff then filed a request for a hearing before an Administrative Law Judge ("ALJ") on November 9, 2001. (Tr. 94). Plaintiff appeared, with counsel, before an ALJ on May 14, 2002. (Tr. 22). In a decision dated June 28, 2002, the ALJ found that Plaintiff was not entitled to DIB. (Tr. 14-19). On August 19, 2002, Plaintiff requested a review of the ALJ's decision by the Appeals Council. (Tr. 8). On June 19, 2003, the Appeals Council denied Plaintiff's request for review. (Tr. 5-8).

  II. FACTS

  Plaintiff was born on February 22, 1970, and was thirty-two years old at the time of her May 14, 2002, hearing before the ALJ. (Tr. 26). Plaintiff completed her education through the twelfth grade. (Id.). At the time of the hearing, Plaintiff lived with her husband and two children, ages three and five. (Tr. 26-27). Plaintiff is approximately five foot two inches tall and weighed, at the time of the hearing, 150 pounds. (Tr. 27). According to Plaintiff, she had gained twenty-five pounds over the previous two years. (Id.). At the time of the hearing, Plaintiff's primary impairments were an unidentified autoimmune deficiency, bilateral knee arthritis, migraines, sleep problems, hair loss, and hip and back pain. (Tr. 25-26, 28, 43).

  Plaintiff had no reported income since July 10, 2000. (Tr.30). Plaintiff worked for Conseco Services ("Conseco") as a customer service representative from October 1996 until July 2000. (Tr. 29-30). Plaintiff answered phones, completed data entry, and performed some audit work. (Tr. 91). Plaintiff received eleven dollars per hour for her services. (Tr. 128). Plaintiff's work was primarily sedentary, but Plaintiff could stand and stretch when needed. (Tr. 31). Plaintiff stated that she stopped working for Conseco due to a worsening of her knee and back pain which inhibited how long she could sit and stand (Tr. 28, 31).

  Plaintiff worked for Dodge City Toyota between 1993 and 1996 as a receptionist. (Tr. 127). Plaintiff answered the telephone and greeted customers. (Tr. 22). This position was also primarily sedentary, but Plaintiff was free to walk around if she wanted. (Id.). Plaintiff was paid eight dollars an hour for her services. (Tr. 129).

  Plaintiff worked from 1990-93 as a bank teller for Home Bank and was paid at a rate of seven dollars an hour. (Tr. 127, 130). Plaintiff was required to stand for much of the workday and performed some lifting, sometimes up to ten pounds. (Tr. 33). Plaintiff also testified that she was required to stand continuously for three hours at a time when she worked as a teller. (Id.).

  Plaintiff also held two different cashier positions, paying six dollars an hour from 1985 to 1990. (Tr. 127, 131, 132). In addition to checking-out customers, Plaintiff did inventory, stock work, and answered phones. (Tr. 34). She was occasionally required to lift twenty pounds and to stand two hours at a time. (Id.).

  Plaintiff described her typical day since she stopped working as beginning at 4:00 a.m. because she wakes early due to her pain. (Tr. 37). Plaintiff then lies in bed until her children wake up. (Tr. 38). Plaintiff then fixes her children a simple breakfast like cereal. (Id.). Plaintiff's children watch movies, play PlayStation, and read with their mother. (Tr. 38). Plaintiff states that she cannot engage in physical activities with the children, but she instead lays down on the couch. (Id.).

  Plaintiff's husband performs most of the normal household tasks like cooking meals, cleaning, laundry, yard work, and grocery shopping. (Tr. 39). Plaintiff does assist her husband with the dishes, which she stated takes her ten minutes a day. (Id.). Plaintiff also occasionally runs the vacuum and goes grocery shopping, but the couple usually orders cooked food. (Id.). During the day, Plaintiff sometimes takes her kids to visit her mother who lives five minutes away and to the McDonald's Playland for fun. (Tr. 40-41). Plaintiff's mother also visits Plaintiff's home almost daily to help care for the children. (Tr. 49). In addition, Plaintiff's mother-in-law and husband care for the children in the evenings. (Id.).

  Plaintiff testified that her pain interferes with her daily routine, though there is no particular schedule as to when her knees, hips, back, or headaches will flare up. (Tr. 41). Plaintiff has been bothered by hip pain since the third grade, but the pain has been more frequent in the last five years. (Tr. 43). When her hips hurt, Plaintiff has difficulty getting dressed and is greatly restricted in her movement. (Tr. 41-42). Plaintiff stated at her hearing that her hips usually hurt her once or twice a week and that the pain lasts approximately two and a half days. (Tr. 42). When she is in pain, it is hard for her to walk, sit, and lay down. (Id.). When Plaintiff worked and her hip pain bothered her, she would use a heating pad and take a hot bath on her lunch breaks. (Tr. 43.) Plaintiff testified that the heating pad does not get rid of her pain now. (Id.).

  Plaintiff also described almost constant lower back pain at her hearing. (Tr. 43). Plaintiff stated that this pain began two years prior to the hearing. (Tr. 44). The pain is off and on, but requires her to shift her position during the day every twenty to thirty minutes. (Id.). Plaintiff's migraines started three and one-half years before her hearing, and come in spurts. (Tr. 44-45). For about two years prior to her hearing, Plaintiff stated that her migraines occurred once a week and sometimes more frequently, up to every day of the week. (Tr. 45). Plaintiff was taking there different headache medications, including Imitrex, at the time of her hearing, but stated that they were ineffective at fully relieving her pain. (Tr. 44).

  Plaintiff also testified that she has difficulty sleeping at night due to her pain. (Tr. 46-47). Before bed at 9:00 p.m., Plaintiff would take Amitriptyline and other medications to help her sleep, but still would only sleep for two hours at a time. (Tr. 47). Plaintiff reported that she slept with heating pads, but noted they would only take the edge off her pain. (Id.). Plaintiff reported that she takes a hot bath every night when she cannot get back to sleep, sometimes two or three. (Tr. 48). Plaintiff also takes baths during the day (usually twice) to help with her pain. (Tr. 56).

  Additionally, Plaintiff suffers from knee pain. She stated that her knee pain had worsened over the years and that during the two years prior to her hearing, her knees were swollen and sore so that she has difficulty bending and straightening her legs three to four days a week. (Tr. 54-55). She stated that she has to scoot on her butt to navigate stairs. (Tr. 54). Plaintiff's doctor aspirated her knees to relieve swelling about once a month for one and a half years prior to Plaintiff's hearing. (Tr. 56-57).

  At the time of Plaintiff's hearing, she took ten prescription medications,*fn1 many of which were for pain, but Plaintiff also saw her doctor for shots of Demerol when her medications were not working. (Tr. 49-50). Plaintiff represented that she could sit continuously for twenty minutes before she needed to adjust her position (Tr. 58), stand for twenty minutes before needing to sit, lie down, or take a hot bath (Tr. 59), and walk two to three blocks at a time. (Id.).

  Vocational expert, Christopher Yep, testifying before the ALJ stated that Plaintiff's work history ranged from light to sedentary work and unskilled to skilled work. (Tr. 70). Mr. Yep found that Plaintiff's cashier positions were unskilled positions with a light exertional level required. (Tr. 70). Plaintiff's position with Conseco was a skilled job with a sedentary exertional level (Id.), while her position as a teller was light and semi-skilled (Tr. 72), and her position with Anderson Dodge was a semi-skilled sedentary occupation (Tr. 71). The ALJ then questioned Mr. Yep about the existence of positions in the region that were sedentary, but allowing the employee to sit/stand as needed. Mr. Yep stated that such an "at will" requirement would significantly reduce the number of positions available to the Plaintiff, but that such positions did exist in the region (the state of Illinois). (Tr. 71-72, 77).

  With that in mind, the ALJ asked Mr. Yep whether a hypothetical female, with the following characteristics, could perform prior work:
Is 32 years of age, has a high school education with the ability to read, write, and use numbers, has the same prior work history as the Claimant with the capacity to perform work with the following and no other additional limitations. . . . say lift and carry up to a maximum of 10 pounds on an occasional basis and five pounds frequently. Let's say stand and walk for up to a combined total of two hours in an eight-hour day. Sit for a total of six hours in an eight-hour day. May not ...

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