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).
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.
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
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.
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.
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.
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.
With that in mind, the ALJ asked Mr. Yep whether a hypothetical
female, with the following characteristics, could perform prior
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 ...