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GENTLE v. BARNHART

November 9, 2004.

NICOLE GENTLE, Plaintiff,
v.
JO ANNE BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant.



The opinion of the court was delivered by: SIDNEY SCHENKIER, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Nicole Gentle, seeks judicial review of a final decision denying her application for disability insurance benefits, under Sections 405(g) and 416(i) of the Social Security Act. 42 U.S.C. §§ 405(g), 416(i) (2004). Ms. Gentle filed an application for Disability Insurance Benefits and Supplemental Security Income payments on September 18, 2001, alleging she became disabled on September 4, 2001 due to asthma, back pain and leg pain (R. 96-98). Ms. Gentle's application was denied and, on February 19, 2003, an administrative hearing was held before the Administrative Law Judge (the "ALJ"). During the hearing, Ms. Gentle, who was represented by counsel, testified to suffering from depression in addition to the above-listed conditions, and further claimed that her conditions are exacerbated by her obesity (R. 26-51). Linda Gels, a vocational expert, also testified at the hearing (R. 51-58).

Ms. Gentle's benefits claim was denied by the ALJ in a written decision dated October 31, 2003 (R. 16-21). The ALJ determined that Ms. Gentle was not disabled because she retained the ability to perform her past work as either a lunchroom attendant or deli worker. Ms. Gentle, through her attorney, sought review of the ALJ's decision on December 5, 2003 (R. 269-274). The Appeals Council denied Ms. Gentle's request for review on February 3, 2004 (R. 9-11), making the ALJ's decision the final decision of the Commissioner. This lawsuit followed.

  Ms. Gentle now seeks summary judgment reversing the Commissioner's decision or, in the alternative, remanding the case for further proceedings (doc. # 18). The Commissioner has filed a cross-motion for summary judgment to affirm the decision below (doc. # 19). For the reasons stated below, the Court grants the Commissioner's motion for summary judgment and denies Ms. Gentle's motion for summary judgment.

  I.

  The following facts are taken from the administrative record, the administrative hearing transcript, and the ALJ's written decision. The Court will discuss Ms. Gentle's personal and medical history, followed by a summary of the hearing testimony and the ALJ's written decision.

  A.

  Ms. Gentle was born on October 1, 1976, making her 26 years old at the time of the hearing (R. 28). Ms. Gentle is single and lives with her two children (R. 28). She is 5'11" tall and weighs approximately 275 pounds (R. 39). Ms. Gentle graduated from high school, during which time she was enrolled in special education classes (R. 32-33). Her previous work experience includes positions held as a deli worker, childcare worker, and school lunchroom attendant (R. 28-30, 102). Ms. Gentle has not been employed since she left her job as a lunchroom attendant on September 4, 2001, but continues to care for her children and perform general housekeeping duties such as cooking, cleaning, and grocery shopping (R. 31-32).

  The medical records relevant to Ms. Gentle's back and leg pain date from July 31, 2001, when she complained to her obstetrician, Dr. Collingham, about shooting pains in her right leg that had been getting worse over the previous three weeks (R. 180). At the time, Ms. Gentle was pregnant with her second child. Dr. Collingham referred Ms. Gentle to a physical therapist and to a neurologist, noting that she may have either a compressed nerve or lumbar disk syndrome (R. 180). On September 6, 2001, Ms. Gentle saw Dr. Lee Ann Myers, a neurologist at Evanston Hospital (R. 170-71). Dr. Myers' treatment notes indicate that Ms. Gentle reported feeling shooting pain in her right hip and leg, which she had been experiencing off and on since November 1998, when she delivered her first child (R. 170). Ms. Gentle had previously taken Celebrex for the pain, but it was not effective (R. 170). Dr. Myers recommended Ms. Gentle find a different job for the duration of her pregnancy that did not involve standing (R. 169). Ms. Gentle was working as a lunchroom attendant at the time (R. 28-29).

  On September 24, 2001, Ms. Gentle saw a physician at Evanston Northwestern Hospital who noted that Ms. Gentle may have multiple slipped discs, but concluded that nothing could be done about her condition until after her pregnancy (R. 179). Ms. Gentle was scheduled for physical therapy three times in November and December 2001 (R. 182). Ms. Gentle gave birth to her second child on February 28, 2002 (R. 29). In April 2002, Ms. Gentle had an MRI of her lumbar spine, revealing a small disc protrusion at the L5-SI level (R. 246, 252). A letter from Dr. Pamela McShane, dated April 11, 2002 states that this condition prevents Ms. Gentle from lifting heavy objects (R. 246). Ms. Gentle's outpatient psychiatric notes from May 2002 indicate that Dr. McShane stated that Ms. Gentle's MRI showed "no significant physical abnormality requiring additional treatment or disability" (R. 241). The outpatient psychiatric notes also state that Ms. Gentle's pain symptoms may be related to stress (R. 241).

  Ms. Gentle's problems with depression and anxiety were first documented at age six, when a teacher requested that she be evaluated by a psychiatrist due to behavioral concerns (R. 163). Ms. Gentle continued to have emotional problems and received periodic mental health evaluations while in school (R. 163-164). After graduating from high school, Ms. Gentle does not appear to have sought treatment for depression until May 2002, when she was diagnosed with major depression and received a prescription for Celexa (R. 227). At that time, Ms. Gentle reported to her doctors that she had been sexually abused by her mother's boyfriends from ages five through fourteen (R. 227-229). She also reported feeling overwhelmed by the task of caring for her children and that she experienced episodes of anxiety or panic (R. 227-229). The treatment notes indicate that Ms. Gentle's obesity is a factor related to her depression (R. 227-229).

  From May 2002 through January 2003, Ms. Gentle continued to seek regular psychiatric treatment and her doctors made some adjustments to her medication prescriptions (R. 227-240). As of January 2003, Ms. Gentle's treatment notes indicate that her symptoms had improved, although she was still experiencing some depression, feelings of being overwhelmed, and reluctance to leave her house (R. 240). Her attending psychiatrist noted that Ms. Gentle experienced mild constipation and a decreased ability to concentrate as side-effects of taking Prozac (R. 240, 245). On April 8, 2003, Dr. Robert Burton wrote a letter stating that Ms. Gentle had been diagnosed with recurrent major depression, that her symptoms (decreased energy, depressed mood, panic/anxiety, and feeling easily overwhelmed) were disabling, and prevented her from caring full-time for her children, and that Ms. Gentle should be permitted to have childcare assistance (R. 254).

  B.

  At the administrative hearing, Ms. Gentle testified that she has not performed any paid work since she left her position as a school lunchroom attendant on September 4, 2001, the alleged onset date of her disabilities (R. 28). The ALJ asked Ms. Gentle several questions about her employment history. Ms. Gentle stated that she left her job as a school lunchroom attendant — which was during her second pregnancy — because the position required too much standing, moving around, and lifting, which caused her to experience pain in her back (R. 28-29). She also testified to having experienced difficulty filling out all the paperwork for the lunchroom attendant position, which she attributed to her difficulty reading and writing and maintaining the requisite level of attention (R. 35). However, there was no evidence that these difficulties rendered Ms. Gentle's job performance unacceptable to her employer.

  At the hearing, Ms. Gentle's attorney claimed that Ms. Gentle is disabled and that, due to a combination of her impairments, she is unable to sustain substantial gainful activity (R. 26, 27). Her attorney stated that Ms. Gentle's has low back syndrome, as indicated by obstetrician's notes (R. 26, 179-181); that she experiences shooting pain in her right leg, especially when standing or walking for prolonged periods (R. 26); that she experiences pain in her back and stiffness in her right leg when sitting for extended periods of time (R. 26); that she suffers from asthma, which is triggered by dust, smoke, mold, and hot weather (R. 26); that she would probably be considered obese, which exacerbates her pain symptoms (R. 27); that she takes Prozac for depression, experiences crying spells and is reluctant to leave her home (R. 27); that she has difficulty keeping up with her children and household cleaning (R. 27); that, as a result of taking Prozac and Benadryl, she feels drowsy and must lie down during the day and also has problems with mental focus and functioning (R. 27).

  Ms. Gentle brought a brace with her to the hearing that she received from her physical therapist (R. 39). Her physical therapist instructed Ms. Gentle to wear the brace at all times, but since Ms. Gentle finds the brace uncomfortable, she only wears it when she is bending over frequently or when she needs to lift something (R. 39). She finds it difficult to lift her daughter, who weighed 25 pounds at the time of the hearing (R. 47). Ms. Gentle stated that she experiences shooting pains on a daily basis, starting in her lower back, going through both hips, and down the back of her right leg to her knee (R. 40). Ms. Gentle stated that she started experiencing this pain several years prior to the hearing, when she was working at the grocery store (R. 36). She testified to experiencing this pain when she walks and that the pain lasts for hours (R. 40-42). Ms. Gentle stated that if she sits to rest, her leg stiffens, making the pain worse (R. 41). She takes Vicodin or Extra Strength Tylenol about three times a week for that pain, but tries to avoid taking Vicodin more often than three times per week due to the fact that she is nursing her daughter and also because it causes blurry vision and drowsiness (R. 41). Ms. Gentle can stand in one place approximately ten or fifteen minutes before she starts to experience leg or back pain, after which time she usually lays down (R. 42). She can usually sit about twenty minutes before she starts to experience pain or discomfort in her back, at which point she usually stands up (R. 43).

  Ms. Gentle testified that she was not certain when she started seeing a psychiatrist for her depression (R. 34). Although she was taking Prozac as of the date of the hearing, she was still experiencing some symptoms of depression (R. 43). She stated that she regularly experiences crying spells (R. 44) and has difficulty focusing and keeping appointments (R. 45). Ms. Gentle testified that she has anxiety attacks about twice a week, during which her stomach twists, her chest tightens, her head spins, and she has difficulty breathing (R. 46). When she takes Prozac, Ms. Gentle experiences dry mouth, upset stomach, and sleepiness (R. 48). She feels especially sleepy when she takes other medication along with Prozac, such as allergy and sinus medications (R. 48). She usually takes her ...


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