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Thomas v. Astrue

December 19, 2008


The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge


Plaintiff Coy Thomas appeals the Commissioner's denial of his application for disability insurance benefits under the Social Security Act. This Court has jurisdiction. 42 U.S.C. § 405(g). The parties have filed cross-motions for summary judgment. Plaintiff's Motion for Summary Judgment or Remand (d/e 9); Defendant Commissioner's Motion for Summary Affirmance (d/e 11). For the reasons set forth below, the Decision of the Commissioner's Motion for Summary Affirmance is ALLOWED and Thomas' Motion for Summary Judgment or Remand is DENIED. The Decision of the Commissioner is affirmed.


Thomas was born on June 9, 1947. He is a veteran of the Vietnam War. Thomas retired in 1997 from an oil changing business that he owned. He has not performed substantial gainful activity since 1997. His eligibility for Disability Benefits expired on December 31, 2002. He applied for benefits in January 2004. Thomas alleged that he became disabled on March 15, 2002. Certified Record of Proceedings before the Social Security Administration (d/e 6) (R.), at 65-66, 802.

The medical evidence shows that on January 3, 2002, blood tests showed a white blood cell count of 26,700 with a preponderance of lymphocytes. R. 123. A repeat blood test on February 25, 2002, showed 42,400 lymphocytes at a level of 85% consistent with chronic lymphocytic leukemia (CLL). On March 5, 2002, Thomas was seen by a cancer specialist, James R. Enger, M.D. Thomas reported sleeping and eating okay. Thomas denied fevers, sweats, or chills. Thomas stated that his weight was increasing. Thomas did not feel sick. Thomas stated that he had recently engaged in sawing and splitting wood to sell. On examination, Dr. Enger found no clinical abnormalities. Dr. Enger ordered more tests that confirmed the diagnosis of CLL. R. 123.

Thomas saw Dr. Enger again on March 12, 2002. At that time, Thomas denied having any colds, flu, fevers, sweats, or chills. R. 119. Dr. Enger saw Thomas again on March 14, 2002, and April 16, 2002. Thomas reported no difficulty eating, drinking or sleeping. During the April 16, 2002, examination, Thomas reported that he had enough energy to go turkey hunting. Dr. Enger again found no clinical abnormalities on examination. Dr. Enger diagnosed Thomas with stage 0 CLL, the lowest risk stage. R. 117-18.

Dr. Enger saw Thomas again on June 25, 2002. Thomas again denied having any colds, flu, fevers, sweats, or chills. Thomas had no difficulty eating, drinking, or sleeping. On examination, Dr. Enger reported no clinical abnormalities. R. 116.

Thomas decided to have his cancer treated at a Veterans Administration (VA) hospital. Thomas believed that his condition was related to exposure to Agent Orange during the Vietnam War. R. 112. On September 17, 2002, a blood test taken at a VA facility showed that Thomas had CLL. R. 132.

The record contains no further medical evidence of Thomas' condition prior to December 31, 2002, the date that his eligibility for Disability Benefits expired. State agency physician, Harry F. Roha, M.D., reviewed Thomas' medical records through December 31, 2002, and concluded that he had no serious impairment as of that date. R. 138.

Thomas' medical records for 2003 and thereafter, however, show that his condition worsened. In January 2003, Thomas had a rash and swelling in his neck and axilla. In April and May 2003, Thomas reported increased fatigue and skin changes with eruptions on his scalp, ears, and neck. His condition worsened substantially after that. He has developed numerous tumors in various part of his body, including basil and squamous skin cancers. He has also undergone several courses of chemotherapy.

The Administrative Law Judge conducted an evidentiary hearing on January 23, 2007. Thomas and Vocational Expert James Lanier, PhD., testified. Thomas testified that he started feeling fatigued in 2002. R. 821-22. He stated that late in 2002, he was tired all the time and had problems sleeping at night with hot flashes. R. 823-24. He slept on the couch at his former residence at the time because it was not worth the effort to go upstairs to his bedroom. R. 825.

Thomas testified that the last time he went hunting was in 2002. He stated that it took him 45 minutes to get up a small hill. R. 805. He played golf 10 to 15 times in 2004, but did not play more than three times during the year before the hearing. R. 805-08. He stated that he went fishing two to three times a year if someone would take him. R. 810. He did his own cooking, laundry and dishes, but others shopped for him and maintained his yard. R. 812-14.

Lanier then testified. The ALJ asked Lanier to assume an individual of Thomas' age, education, and work experience who was limited to light work with no climbing of ladders, ropes or scaffolds. R. 833-34. The ALJ asked Lanier whether such an individual could perform Thomas' past work at an automobile lube service center. Lanier concluded that he could not perform his prior work because the job required climbing ladders. R. 834-35. The ALJ then asked whether such a person could perform other work in the national economy. Lanier opined that such a person could work light, unskilled jobs such as an interviewer or information clerk. Lanier stated that there were 3,972 interviewer jobs in Illinois, and 3,327 information clerk jobs in Illinois. R. 836. Lanier opined that these jobs could not be performed with a sit/stand option.

The ALJ issued his Decision on February 2, 2007. R. 12-16. The ALJ followed the five-step analysis set forth in the Social Security Administration regulations (Analysis). 20 C.F.R. §§ 404.1520, 416.920. Step 1 requires that the claimant not be currently engaged in gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If true, Step 2 requires the claimant to have a severe impairment. 20 C.F.R. §§ 404.1520(c), 416.920(c). If true, Step 3 requires a determination of whether the claimant is so severely impaired that he is disabled regardless of his age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(d). Such severe impairments are set forth in the Listings. 20 ...

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