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GRIFFITH v. BARNHART

December 3, 2004.

GERLENE GRIFFITH, Plaintiff,
v.
JO ANNE B. BARNHART Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge

MEMORANDUM OPINION AND ORDER

This case comes before this Court on the parties' cross-motions for summary judgment. Claimant Gerlene Griffith ("Claimant") challenges the decision of Defendant Jo Anne B. Barnhart, Commissioner of Social Security ("Commissioner"), claiming that the Commissioner's denial of her disability insurance benefits ("DIB") should be reversed because the decision did not comply with the district court's remand order and is not supported by substantial evidence. For the reasons that follow, this Court affirms the Commissioner's decision.

I. BACKGROUND FACTS

  A. PROCEDURAL HISTORY

  Claimant applied for Disability Insurance Benefits and Supplementary Security Income on April 22, 1998, alleging that she became unable to work on April 1, 1995 due to lupus, shortness of breath, lesion leakage, memory loss and depression. (Record ("R.") 135, 151, 165, 578-585.) Her application was denied on September 4, 1998 and her request for reconsideration was denied on October 30, 1998. (R. 102-05, 108-10.) She appealed the decision to an Administrative Law Judge ("ALJ") who denied her disability benefits on November 22, 1999. (R.17-34.) Claimant appealed the ALJ's decision to the Appeals Council of the Office of Hearings and Appeals ("Appeals Council"), which upheld the ALJ's decision. (R. 9-14, 604.)

  Thereafter, Claimant commenced a civil action in this court seeking judicial review of the Commissioner's final decision. On February 6, 2002, Judge Rebecca R. Pallmeyer ordered the case remanded to the ALJ with the following directions: (1) determine the effect of Claimant's mental condition on her ability to maintain production; (2) clarify the ambiguity of Dr. Drevlow's medical assessment of Claimant's ability to work; (3) re-determine Claimant's residual functional capacity ("RFC"); and (4) determine whether Claimant could perform any jobs in the national economy. (R. 700-02); Griffith v. Barnhart, No. 00 C 7302, 2002 WL 181959 *13-14 (N.D. Ill. Feb. 6, 2002). The Appeals Council then vacated the Commissioner's final decision and remanded the case to the ALJ for further proceedings consistent with Judge Pallmeyer's order. (R. 703-04.) The Appeals Council noted that the Claimant filed a subsequent application for benefits and was found disabled as of January 1, 2000 (R. 627-29, 703.) A new administrative hearing was held before the same ALJ, at which Claimant and a vocational expert ("VE") testified (R. 837-920.)

  On December 26, 2002, the ALJ issued a partially favorable decision granting Claimant benefits from October 1, 1999 through December 31, 1999, but denying benefits prior to that date because she remained able to perform a range of sedentary work that included a significant number of jobs. (R. 647-60.) The Appeals Council upheld the ALJ decision on January 7, 2004. (R. 632-33.)

  Claimant insists that she is entitled to receive DIB since an alleged onset date of 1995 instead of October 1, 1999. Claimant filed this action on March 8, 2004 to contest the ALJ's decision finding her not disabled prior to October 1, 1999. The relevant time period in this case is from April 1, 1995 to September 30, 1999.

  This Court incorporates by reference the factual background found in Judge Pallmeyer's earlier decision. (R. 673-93.)

  B. TESTIMONY

  1. Gerlene Griffith — Claimant

  Claimant testified that her depression, and thus her disability, began when she was diagnosed with lupus, but she does not state when this diagnosis was made in 1995. Claimant takes the anti-depressant medication Paxil to treat her depression. (R. 69.)

  At the 2002 administrative hearing, Claimant testified that she was stressed and depressed, and began having panic attacks in 1998 and 1999. (R. 848, 874-75.) However, Claimant testified that she first told her counselor, Ms. Zarifi, about her panic attacks in 1999. (R. 877.) Her depression causes her to be irritable, and causes her to not care about anybody or anything. (R. 882.) During a panic attack she feels as though someone is going to get her, and that she's going to burn up. (R. 883.) She experiences panic attacks on a daily basis and as many as three times per day. (R. 884.) She does no chores at home and the only time she leaves the house is to go to the doctor. (R. 891.)

  2. Susan Entenberg — Vocational Expert

  Susan Entenberg ("Entenberg"), the same VE who appeared at the first hearing, testified at the remand hearing. She is a licensed clinical professional counselor in Illinois. (R. 84, 128.) She reviewed the case file and heard the Claimant's testimony regarding her work history. (R. 85.) The ALJ presented Entenberg with the following hypothetical regarding Claimant's mental capacity at the first hearing:
[B]y reason of a depressive condition [the hypothetical individual] does not have the capacity to understand, recall, carry out complex or detailed instructions or to perform complex or detailed tasks, but does retain the capacity to understand, recall and carry out simple tasks and simple instructions on a sustained basis.
(R. 86-87.)

  Entenberg testified that such a hypothetical individual could not perform the Claimant's prior work — which is classified as a sedentary semi-skilled job — due to an inability to perform detailed, complex tasks, but would retain the ability to perform the full range of sedentary, unskilled work. (R. 86-88.) She testified that there are 3,000 assembly jobs, 2,000 packing jobs, and 1,000 inspection jobs within that category in the Chicago metropolitan area. (R. 87-89.)

  Entenberg also testified at the 2002 administrative hearing held after the district court remand. (R. 903.) She stated that the jobs she had listed previously in her answer to the ALJ's hypothetical still exist in approximately the same numbers. (R. 907.) In addition to the original hypothetical posed at the 1999 administrative hearing, the ALJ included the following mental limitation:
[The hypothetical individual] does not have the capacity to maintain such extended attention/concentration as would be required for the performance of complex detailed tasks at a sustained workman-like pace, but retains the capacity to understand, recall, focus upon, attend to and carry out simple instructions, and to focus upon, attend to, and perform simple tasks at a sustained workman-like pace.
(R. 906, 911-12.)

  The VE replied that such a person could perform approximately 6,000 jobs as an assembler, inspector, and packer in the Claimant's designated region. (R. 907, 911-12, 915.)

  The VE also stated that the hypothetical individual would have the capacity to maintain the attention/concentration required to focus on and perform simple tasks at a sustained workman-like pace for periods of two hours continuously throughout the workday, with ten to fifteen minute breaks provided after each such two hour period. (R. 912-13.) However, the VE testified that if an individual could not perform mental activities of work, which would include sustaining attention, concentration and maintaining a sustained workman-like pace or sustaining work pressures for ninety percent of the day, all employment would be precluded. (R. 914-15.)

  C. CLAIMANT'S MEDICAL RECORDS AFTER FIRST HEARING

  1. Dr. Michael Raymond, M.D. — Internal Medicine Consultative Exam

  On April 10, 2000, Dr. Raymond conducted an internal medicine consultative evaluation. He reported that Claimant's range of motion in her cervical spine, lumbar spine, shoulders, elbows, wrists and fingers were all normal. (R. 787.) Her mental status including her memory, appearance, behavior and her ability to relate during the forty minute exam were normal. Id. She was polite, pleasant and able to ...


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