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LUSHER v. BARNHART

September 16, 2004.

CHRISTIANA M. LUSHER, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge

AMENDED MEMORANDUM OPINION AND ORDER*fn1

Plaintiff Christiana Lusher seeks review of the final decision of defendant Jo Anne Barnhart, Commissioner of the Social Security Administration ("Commissioner"), denying Lusher's application for disability insurance benefits under Title II of the Social Security Act. 42 U.S.C. §§ 416, 423. This matter is before the court on the parties' cross-motions for summary judgment. Lusher asks the court to either reverse the decision denying her application and grant her disability insurance benefits, or alternatively, to remand her case to the Commissioner for another hearing. The Commissioner, on the other hand, seeks an order affirming the decision to deny Lusher's application. For the reasons explained below, Lusher's motion for summary judgment is granted to the extent she seeks a new administrative hearing regarding her application for disability insurance benefits, but denied to the extent she asks the court to award her disability insurance benefits. The court therefore remands this case to the Commissioner for a new hearing consistent with this opinion.

Procedural History

  Lusher filed an application for Title II disability insurance benefits ("DIB") on August 11, 1999, asserting that since April 8, 1995, she had been disabled due to fibromyalgia and chronic fatigue syndrome. The Social Security Administration (the "Agency") denied both her initial application and her request for reconsideration.*fn2 (R. 22, 31.) Lusher timely requested an administrative hearing, which was held on June 13, 2000 by Administrative Law Judge C.J. Sturek ("ALJ"). (R. 10.) In a decision issued on June 30, 2000, the ALJ concluded that Lusher was not disabled within the meaning of the Social Security Act or its related regulations because she had the ability to perform a limited range of sedentary work, and thus was not entitled to disability insurance benefits. (R. 15, 18.) Lusher then requested a review of the ALJ's decision by the Appeals Council, which was denied in a letter dated May 20, 2002 (R. 3-6), thus making the ALJ's decision the Agency's final decision regarding her August 11, 1999 application. See 20 C.F.R. §§ 416.1481. Lusher has appealed the ALJ's decision to the federal district court. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

  Background

  A. The Medical Evidence and Testimony at the Administrative Hearing Lusher's insured status expired on September 30, 1997, (R. 16), when she was 49 years old, (R. 17). Accordingly, during the administrative hearing, the ALJ focused on the period between April 1995, the disability onset date alleged by Lusher, and September 30, 1997, the date her insured status expired. (R. 157.) At the administrative hearing, Lusher offered evidence that she had been diagnosed with fibromyalgia*fn3 and cardiomyopathy.*fn4, *fn5 (See, e.g., R. 165.) She testified that as a result of her medical problems, she has constant pain in her "upper legs, lower back, upper back from the shoulder blades, neck, and down the trapezes [sic] area." (R. 165.) She explained that her muscles cramp up, then the pain becomes sharp. (R. 166.) She followed doctor-prescribed exercises and stretching in an effort to keep the muscle cramping from worsening. (R. 167.) Lusher stated that she began doctor-prescribed exercises "toward the end" of the 1995-1997 time period. (R. 173.) Lusher further testified that she suffers from constant fatigue. (R. 165.) As a result, she typically would lie down from 10:30 a.m. or 11:00 a.m. until 4:00 p.m. every day. (R. 170.) She reported that during the relevant time period, she did dishes for herself, could pull up the covers on her bed, and occasionally read (but only for very limited periods of time, due to her inability to maintain concentration). (R. 170-71.) She did not do the laundry, take care of paying the bills, or participate in any activities outside the home. (R. 170-71.) She spent most of her time in bed. (R. 171.)

  Additionally, Lusher explained that has suffered from depression for most of her life, since before she was ever diagnosed with fibromyalgia. (R. 169.) Lusher was seen by a psychiatrist in or around 1995, who diagnosed her with and treated her for depression. (R. 121.) At the time of the hearing, she was taking an anti-depressant prescribed by Dr. Schecter. (R. 168.)

  Lusher has a college education, but no history of past relevant work. (R. 11.) Indeed, Lusher testified that she had never been able to work a 20-hour/week part-time job, let alone a full-time job. (R. 160.) According to her testimony, the most she had ever worked during the relevant time period (or ever) was seven hours a week, for one hour a day, as a spiritual counselor doing psychic readings over the telephone from her home. (R. 160-61.)

  With respect to the fibromyalgia diagnosis, Lusher's medical records include a letter from Dr. Stephen Schecter dated June 21, 1996, stating that when Lusher saw him approximately fifteen years earlier, "she was felt to have fibromyalgia."*fn6 (R. 95.) In another letter dated October 23, 1997, Dr. Paul Epstein noted that Lusher "has a long history of fatigue" and had been previously diagnosed with fibromyalgia. (R. 120.) Dr. Epstein opined that Lusher suffered from depression, and that, at a minimum, he thought her fatigue was associated with poor sleep. (R. 120.)

  B. The ALJ's Ruling

  In determining whether Lusher is disabled within the meaning of the Social Security Act, the ALJ had to evaluate: (1) whether Lusher was currently unemployed; (2) whether she has a severe impairment;*fn7 (3) whether her impairment satisfies the criteria for any of the impairments listed in 20 C.F.R. § 404, Subpt. P, App. 1 ("Listing"); (4) whether Lusher is able to perform her past work; and (5) whether she has the ability to perform work available in the national economy. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). A conclusion that a claimant's impairment qualifies as one of the Listing impairments results in a finding that a claimant is disabled. Id. Likewise, even if the impairment does not qualify as a Listing impairment, if the ALJ concludes that the claimant lacks the ability to perform work available in the national economy after assessing the claimant's residual functional capacity, the claimant is deemed disabled within the meaning of the Social Security Act.

  Here, after conducting this five-step inquiry, the ALJ issued a written decision dated June 30, 2000, denying Lusher's application for disability insurance benefits. Specifically, he found that Lusher had not been engaged in substantial gainful activity since April 8, 1995 (the first step). (R. 16.) He also found that at the time her disability insurance expired, she suffered from cardiomyopathy, a severe impairment, but not one that satisfied the Listing criteria (steps 2 and 3). (R. 16.) The ALJ did not address the severity of either Lusher's fibromyalgia or depression. The ALJ further concluded that as of September 30, 1997, Lusher had no history of past relevant work (step 4).

  At the fifth step of the evaluation process, the burden of proof shifted to the ALJ, as designate of the Commissioner, to show that Lusher was capable of performing work in the national economy when her insured status expired. Clifford, 227 F.3d at 868. In assessing Lusher's residual functional capacity ("RFC"), the ALJ concluded that when Lusher's insured status expired, she had the ability to: (1) "sit for up to 6 hours in an 8 hour workday," (2) "to stand and/or walk for up to 6 hours in an 8 hour workday," (3) "lift no more than 10 pounds at a time," and (4) "occasionally lift or carry small articles[.]" (R. 17.) According to the ALJ, Lusher also had unlimited ability to push and pull. (R. 17.) The ALJ further concluded that Lusher's "capacity for the full range of sedentary work was diminished by significant non-exertional limitations which made it impossible for her to more than occasionally climb, balance, bend, stoop, kneel, crouch, squat and crawl, work while exposed to concentrated hazards, and perform work precluded by a slight inability to concentrate, maintain attention for extended periods, and keep up a pace as a function of pain." (R. 17.) Although the ALJ found that Lusher was unable to perform the full range of sedentary work, he ultimately concluded that "she was able to make an adjustment to work which exists in significant numbers in the national economy" ...


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