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MAUERMAN v. BARNHART

September 28, 2004.

HEIDI L. MAUERMAN, Plaintiff,
v.
JOANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant.



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

MEMORANDUM OPINION AND ORDER

Heidi Mauerman ("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 Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security Act (the "Act"). 42 U.S.C. § 1381(a). This matter is before the Magistrate Judge pursuant to consents filed by both parties on February 9, 2004. See 28 U.S.C. § 636(c); Fed.R. Civ. P. 73.

I. BACKGROUND

  Plaintiff filed for SSI on May 16, 2002 (Tr. 88), and her application for benefits was denied on June 26, 2002. (Tr. 54). Plaintiff filed a request for reconsideration on August 1, 2002 (Tr. 59), and was subsequently denied reconsideration on October 28, 2002. (Id.). Plaintiff then filed a request for a hearing before an Administrative Law Judge ("ALJ") on November 14, 2002. (Tr.66). Plaintiff appeared, with counsel, before an ALJ on July 10, 2003. (Tr. 21). In a decision dated August 29, 2003, the ALJ found that Plaintiff was not entitled to SSI. (Tr. 13-18). On September 2, 2003, Plaintiff requested a review of the ALJ's decision by the Appeals Council. (Tr. 9). The Appeals Council denied Plaintiff's request for review on October 3, 2003. (Tr. 5-7).

  II. FACTS

  Plaintiff was born on April 10, 1975, and was twenty-eight years old at the time of her July 10, 2003, hearing before the ALJ. (Tr. 21, 24). Plaintiff completed her education through the eighth grade and has a GED. (Tr. 25). At the time of her hearing, Plaintiff lived with her mother and her three children, ages eleven, three, and six. (Tr. 24). Plaintiff is approximately five foot six inches tall and weighed, at the time of the hearing, 138 pounds. (Id.). Plaintiff claims disability since October 12, 2000, because she was injured in an automobile accident on October 11, 2001. (Tr. 24, 186). At the time of the hearing, Plaintiff had the following medically determinable impairments: degenerative disc disease, adjustment disorder, and pain disorder associated with both psychological factors and general medical condition. (Tr. 17).

  Plaintiff had no reported income since October, 2000. (Tr. 30). Plaintiff worked for Goodwill Industries as a receptionist from February or March, 2000 until October, 2000. (Tr. 25, 96, 108). Plaintiff answered phones, greeted guests, and paged personnel. (Tr. 91). Plaintiff worked six hours a day, five days a week, and she received seven dollars per hour for her services. (Tr. 96). Plaintiff's work was primarily sedentary, but some walking was required. (Tr. 108). Plaintiff stated that she stopped working for Goodwill Industries due to the injuries she sustained in the October automobile accident. (Tr. 24-25).

  Plaintiff also worked part-time as a waitress/hostess in 1995. (Tr. 108, 110). Plaintiff took orders and carried food to customers. (Tr. 110). This position required frequent standing, walking, and lifting of objects less than ten pounds. (Id.). Plaintiff was paid five dollars an hour for her services. (Id.). It appears that Plaintiff may have also waited tables part-time in 1993, but the record is inconsistent. (Tr. 96, 108).

  Plaintiff described her ability to function around the house as limited. Plaintiff's mother and children perform most of the normal household tasks like cooking meals and cleaning. (Tr. 31). Plaintiff does assist her family with chores by doing dishes and clearing the dinner table. (Tr. 31, 41). Plaintiff's mother, however, works during the day, so Plaintiff also has friends and a sibling that visit her during the day to help out approximately three days a week. (Tr. 39, 40). Plaintiff cannot engage in physical activities with her children, but does read to them and occasionally play board games, (Tr. 41-42). Plaintiff reported that she does not go out to socialize with her friends anymore. (Tr. 40).

  While Plaintiff has been bothered by pain since her automobile accident, she testified that some days are better than others. (Tr. 29). At her hearing, Plaintiff stated that anytime she puts pressure on a disc in her back, she would experience pain in her left and right side of her back, her lower back, and upper thighs. (Tr. 28-29). Plaintiff also noted that her upper thighs go numb when she sits, and that she sometimes experiences pain in her leg due to a sciatic nerve. (Tr. 29).

  Plaintiff also described an onset of depression since her accident. (Tr. 30). Plaintiff testified that she feels guilty and depressed because she cannot do anything with her children and that she sometimes has outbursts where she starts crying for no reason. (Tr. 32). Plaintiff stated that sometimes she does not want to get out of bed in the morning, talk to anyone, or go outside. (Tr. 32). To treat her depression, Plaintiff takes 40 milligrams of Paxil. (Tr. 33). While Plaintiff reported at her hearing that the Paxil does make a difference in her emotional state (Tr. 40-41), she also stated that she is inconvenienced by the side effects of her medication because it makes her sleepy and nauseous. (Tr. 33, 36). Additionally, Plaintiff testified that her medications interfere with her ability to drive (Tr. 36), noting that she does not drive when she is taking her medication. (Tr. 36-37).

  At the time of Plaintiff's hearing, she took four prescription medications, including Paxil, Relafen, Vicodin, and Hydrocodone. (Tr. 272). Plaintiff represented that she could sit continuously for thirty to forty-five minutes at a time before needing to get up (Tr. 33). Plaintiff was unsure how long she could stand at one time (Tr. 34), but testified that she could walk two blocks at a time, though she would be in pain. (Tr. 34). Plaintiff also testified that she could lift a gallon of milk off the table, but not the floor. (Tr. 34-35).

  Vocational expert, Frank Mendrick, testifying before the ALJ stated that Plaintiff's past work as a telephone receptionist was classified as semi-skilled and sedentary work. (Tr. 43-44). Mr. Mendrick found that Plaintiff's waitress/hostess position was a semi-skilled position with a light exertional level required. (Tr. 44-45). The ALJ then asked Mr. Mendrick whether a hypothetical female, with the following characteristics, could perform work in the economy:
Taking someone of Ms. Mauerman's age which has ranged from 25 to 28 during the period at issue. Work experience as you described it. Who for purposes of this question can lift up to 20 pounds occasionally, 10 pounds frequently. Sit, stand, or walk as required. Can only occasionally climb, balance, stoop, kneel, crouch, and crawl. Cannot perform detailed or complex tasks.
(Tr. 45).

  Mr. Mendrick testified that such a hypothetical female could not do the past work of the Plaintiff, but could work at unskilled jobs with a light level of exertion in assembly (10,000 positions in the six-county Chicago metropolitan area plus Winnebago and Boone Counties), inspection (4,000 positions), and hand-packing jobs (8,000 positions). (Tr. 45). The ALJ then added a requirement whereby the worker would need to change positions every forty-five minutes to an hour and lift ten pounds only occasionally. (Tr. 45). Mr. Mendrick indicated that such requirements would decrease the number of jobs available in the economy to 5,000 for assembly work, 1,000 for inspection, and 2,000 for hand packing. (Tr. 46). The ALJ then qualified her statement, adjusting the sit-stand requirement to no more than thirty minutes continuous sitting/standing at a time and adding difficulty bending from the waist. (Tr. 46). Mr. Mendrick testified that he would re-classify the work as sedentary, number one, and reduce the assembly work positions to 3,000. (Tr. 46). The vocational expert noted that factory rates are typically set to allow ten minutes out of every hour to be used for personal rest and stretching at the work station. (Tr. 47). Finally, the ALJ inquired about the allowable rate of absenteeism for the remaining jobs. (Tr. 48). Mr. Mendrick replied that six days a year for illness would be typical and that the most he had seen was twelve days a year. (Tr. 48). The ALJ then closed Plaintiff's hearing, but allowed the record to remain open for thirty days in order to allow outstanding reports of Dr. Carlson to be added. (Tr. 49-51)

  III. MEDICAL HISTORY

  Plaintiff's earliest medical records before this court are diagnostic tests performed at Swedish American Hospital after Plaintiff was injured in an automobile accident on October 11, 2000. (Tr. 186-190). A CT scan of Plaintiff's abdomen showed that Plaintiff's liver, spleen, pancreas, and kidneys were normal. (Tr. 186). An X-ray of Plaintiff's spine revealed a slight lower cervical kyphosis with no significant spondylosis. (Tr. 187). A chest X-ray showed potentially some interstitial fibrosis and scarring, but no acute findings.*fn1 (Tr. 188). A pelvis X-ray was unremarkable. (Tr. 189). Finally, Plaintiff's lumbar spine X-ray showed no acute osseous abnormality or spondylosis. (Tr. 190). Plaintiff was discharged after her tests and was given prescriptions for Vicodin and Soma. (Tr. 230).

  After Plaintiff's initial emergency room visit due to her car accident, Plaintiff was evaluated by Dr. Quarles on several follow-up visits beginning October 12, 2000. (Tr. 230-231). Dr. Quarles told Plaintiff she had suffered significant soft tissue and ligamentous injury, cervical and thoracal lumbar strain, and a bruising of her spleen. (Id.). Plaintiff reported that the Vicodin that she had been prescribed to manage her pain made her drowsy, and was in "obvious discomfort" during this visit. (Tr. 230). Dr. Quarles switched Plaintiff's Viocodin prescription to Tylenol #3, prescribed Relafen and a soft collar, and administered a shot of Toradol. (Tr. 230). Plaintiff was advised to avoid vigorous activity and was told she would need six to eight weeks to feel normal again. (Tr. 231).

  Plaintiff saw Dr. Quarles again on October 24, 2000. (Tr. 228). Plaintiff reported that she was still wearing her soft collar because it hurt to hold her head up, and she reported that it was extremely painful to sit still for more than thirty minutes. (Tr. 228). Dr. Quarles noted that Plaintiff had not started physical therapy yet and informed her that she would have to do so soon. (Tr. 228). In a follow-up with Dr. Quarles on November 30, 2000, Plaintiff reported that she was doing better with the physical therapy, but that she did not feel back to normal. (Tr. 227). Plaintiff described neck pain and pain in her lower trapezius and left sacral region to Dr. Quarles. (Tr. 227). Dr. Quarles commented that Plaintiff's whiplash was still severe, but improving. (Tr. 226). He continued her on Tylenol #3 and Relafen and recommended continued physical therapy. (Tr. 226). On December 28, 2000, Dr. Quarles reported that Plaintiff had developed lumbosacral strain that was causing Plaintiff pain in her lower back and sciatica is her leg. (Tr. 226, 224). Though Plaintiff had been discharged from physical therapy for two weeks, which had much improved her neck pain, Plaintiff had continued with compensatory posturing that caused lumbar strain. (Id.). Dr. Quarles took an X-ray of Plaintiff's spine and noted spondylolisthesis of L3 on L4, but no acute abnormalities. (Tr. 224). Dr. Quarles recommended that Plaintiff resume physical therapy. (Tr. 224).

  Through January 4, 2001, and February 13, 2001, Plaintiff attended thirteen physical therapy sessions. (Tr. 162). Plaintiff also started physical therapy on October 26, 2000, but it is unclear how many sessions she attended. (Tr. 165). The clinical impression projected eighteen therapy sessions. (Tr. 165). Plaintiff returned to see Dr. Quarles on January 26, 2001, after reentering physical therapy. (Tr. 223). Plaintiff stated that her pain was not as severe as before, but that she was far from pain free. (Tr. 223). Plaintiff also asked for a referral to an orthopedist and chiropractor. (Tr. 223).

  Plaintiff was examined by orthopedist, Dr. James Dougherty, on March 8, 2001. (Tr. 145-46). Her exam revealed her to be fully ambulatory without a limp or list. (Tr. 145). A repeat lumbar spine series X-ray revealed no evidence of spondylolisthesis. (Id.). Dr. Dougherty recommended that Plaintiff proceed with an MRI and told her she may be a candidate for lumbar epidural steroids. (Tr. 146).

  On March 13, 2001, Plaintiff underwent an MRI of her lumbar spine. (Tr. 184). The MRI revealed posterior annular tears at L4-5 and L5-S1 and a small focal central disk protrusions superimposed upon diffuse disk bulge at the L3-4 interspace level. (Tr. 184). However, there was no impingement upon traversing or exiting nerve roots and no spinal canal stenosis. (Tr. 184).

  On April 10, 2001, Plaintiff was seen by Dr. Weiss for possible facet injection therapy at the Rockford Ambulatory Surgery Center. (Tr. 154-56). Dr. Weiss's exam revealed tenderness around Plaintiff's lumbrosacral junction. (Tr. 155). Plaintiff's range of flexion back motion was limited to seventy degrees at which point her pain would increase, while her range of extension was limited to ten degrees. (Tr. 156). Dr. Weiss diagnosed mechanical right-sided back pain and administered a facet injection during the visit. (Id.). Plaintiff reported approximately ...


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