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LONG v. BARNHART

December 6, 2004.

K. LONG, on behalf of John Long, Plaintiff,
v.
JO ANNE BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff K. Long, the mother of John Long, who died on January 19, 2003, filed this suit on his behalf, seeking review of the Social Security Administration's decision to deny his claim for disability benefits. The Commissioner of Social Security has moved for summary judgment affirming the SSA's decision; Long has moved for summary judgment reversing the decision and awarding benefits, or alternatively for a remand. For the reasons stated below, the Court grants Long's motion, denies the Commissioner's motion, and remands the case for further consideration.

Facts

  John Long was born on May 6, 1960, was twenty-eight years old at the alleged onset of his disability in 1988, and died in 2003 at age forty-two. Long had a high school education and worked as a carpenter until 1988.

  In December 1998, Long applied for Social Security disability benefits. He alleged that he had become disabled as the result of an injury to his back that he suffered in June 1988 while lifting heavy objects at work. Long continued to work until he was injured a second time, in August 1988, but he was unemployed after that date.

  Long suffered two herniated lumbar discs. According to treatment notes of Dr. Per Freitag, Long's primary treating physician from 1988 until 1999, and Dr. Lori Portnoy, Long's treating chiropractor, Long had persistent lower back pain and sharp pain down his right leg, with associated numbness and tingling in his right foot. R. 20, 360. Long underwent two back surgeries, a percutaneous lumbar diskectomy and a microscopic right hemilamenectomy, in November and December 1988. Following surgery, Long entered physical therapy and attended monthly appointments with Dr. Freitag. In the months after surgery, Long suffered from spasms, numbness, and limited range of motion, and Dr. Freitag opined that he had a "slow and far from satisfactory progress." R. 268-69.

  In September 1989, based on a recommendation from Dr. Freitag, Long was given a functional capacity evaluation to determine if he could perform any carpentry-related duties. The capacity assessment found that in an eight hour workday, Long could sit for five hours, but only one hour continuously; stand for four to five hours, one hour continuously (however, Long reported discomfort at fifteen minutes and light pain after twenty minutes); walk for five hours, with frequent long distances; lift ten pounds frequently and twenty pounds occasionally; bend, squat, crouch and kneel occasionally and crawl, climb stairs, and balance frequently. R. 327-36. Overall, Long's recommended safe work capacity was "light," and he was switched from general reconditioning therapy to a work hardening program, with four to six hour sessions five days a week. R. 326. After about a month of the work hardening program, however, Long's condition had progressively deteriorated, and he was returned to a general reconditioning program because of increased pain, soreness, and a depressed right knee jerk. At that time (early November 1989), Dr. Freitag opined that Long could not work, and he recommended that "pain be the modifier as to what he can do" and noted "that he will stop before he harms anything." R. 302.

  In December 1989, Long was discharged from physical therapy; this was attributed to his missing four out of seventeen appointments, though Long attributed it to problems with his health insurer. Without physical therapy, Long's condition worsened. R. 302. In January 1990, Dr. Freitag described Long's condition as "failed back syndrome." He prescribed Vicodin for pain, and opined that Long was "unable to carry out the duties normally required of a carpenter" and that "even sedentary work . . . is difficult, since sitting is markedly painful for him." R. 269.

  In March 1990, Long had an epidural steroid injection, and he began seeing Dr. Portnoy, a chiropractor, regularly until 1992. In July and August of 1990, Long's symptoms ranged from having some back spasms to feeling "pretty good." From March through November 1991, Long saw Dr. Portnoy every three days, and her records indicated that Long had taken during that period a trip to Wisconsin, where he performed unspecified "light yard work." After 1992, Long did not see Dr. Portnoy again until January 1995. However, by November 1994, Long's pain began to worsen; he returned to physical therapy; and he was unable to perform any household chores or tasks. R. 20, 22. In November 1994, Long was also treated for dependence on Vicodin. R. 199.

  In 1995, Long started seeing both Dr. Portnoy and Dr. Freitag again. In May 1995, because of persistent back pain, Long underwent additional back surgery and suffered an incisional hernia. Following treatment for the incisional hernia, Long complained of constant pain in his back, neck, abdomen, and groin area. Long saw Dr. Sinclair at the University of Chicago Pain Management Clinic from October 1997 until August 1998, when Dr. Sinclair ended their relationship because Long was reportedly obtaining pain medication from other sources. R. 480-82. In 1998, an MRI revealed that Long also had a herniated disc in his neck. R. 361. In 1999, Dr. Freitag opined that Long was "incapacitated from persistent pain" and that he was "permanently disabled from any and all occupations." In October 2000, Long was diagnosed with chronic obstructive lung disease and right heart failure, with pulmonary artery hypertension. Following this diagnosis, Long had to use an oxygen tank. R. 398.

  At the 2001 hearing on Long's claim for benefits, he testified that in the year following his 1988 surgeries he could perform some household chores, including sweeping, mopping and some shopping. See R. 20. Long also stated that during that period, he could "probably" sit for about a half hour continuously, could stand continuously for ten to fifteen minutes, and could probably walk about one block. See id.; see also, R. 75-78.

  The ALJ's decision

  To be eligible for disability benefits, Long was required to prove that he was disabled within the meaning of the law on or prior to the date he was last eligible for benefits — his "date last insured," or DLI — December 31, 1989. See Hughes v. Chater, 895 F. Supp. 985, 992 (N.D. Ill. 1995). "Disability" under the Social Security Act means the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 416.905.

  To determine whether Long suffered from a disability as defined by the Social Security Act, the ALJ followed a five-step inquiry mandated by 20 C.F.R. § 416.920. This required the ALJ to evaluate in sequence whether, as of Long's DLI: (1) he was employed; (2) he had a severe impairment; (3) his impairment met or equaled one of the impairments listed in the applicable regulations, see 20 C.F.R. § 404, Subpt. P., App. 1; (4) he could perform his past work; and (5) ...


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