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Ulloa v. Astrue

April 9, 2009

DAVID ULLOA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Morton Denlow

MEMORANDUM OPINION AND ORDER

Claimant David Ulloa ("Claimant") seeks reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Commissioner" or "Defendant"), denying Claimant's application for Disability Insurance Benefits ("DIB"). This case presents the following issues: (1) whether substantial evidence supports the Administrative Law Judge's ("ALJ") decision; (2) whether the ALJ adequately articulated the grounds for his decision in light of the district court's remand order; (3) whether the ALJ erred by finding Claimant generally credible, but failing to apply Claimant's testimony or explain his reason for accepting portions of the testimony but not others; and (4) whether the ALJ erred in considering testimony from the Vocational Expert ("VE") by posing a potentially improper hypothetical and by disregarding the testimony of the VE at the first hearing. For the following reasons, the Court denies Claimant's motion to reverse or remand the final decision of the Commissioner and grants the Commissioner's motion to affirm the Commissioner's decision that Claimant was not disabled.

I. BACKGROUND FACTS

A. Procedural History

Claimant initially applied for DIB on October 2, 2000, alleging a disability onset date of February 17, 2000. R. 53-55. The Social Security Administration ("SSA") denied his application on January 22, 2001. R. 33-36. Claimant then filed a request for reconsideration, which was also denied. R. 40, 42-44. Subsequently, Claimant requested a hearing before an ALJ. R. 47. On September 10, 2002, ALJ John L. Mondi ("ALJ Mondi") presided over this hearing at which Claimant appeared with his attorney and an interpreter. R. 329, 331. A vocational expert, Gleeann Kehr, also testified at the hearing. R. 331, 350-56. In a decision dated January 31, 2003, ALJ Mondi denied Claimant's claim. R. 20-25.

Claimant ultimately sought judicial review and the district court remanded the case for further hearing. Ulloa v. Barnhart, 419 F. Supp. 2d 1027, 1035-38 (N.D. Ill. 2006); R. 441-59. In remanding, the district court found that ALJ Mondi's "RFC determination [wa]s not supported by substantial evidence because he failed to sufficiently articulate his assessment of the evidence to enable [the court] to trace the path of [the ALJ's] reasoning." Ulloa, 419 F. Supp. 2d at 1036; R. 456. The district court stated that "[o]n remand, the ALJ must reevaluate whether Dr. Shah's, Dr. DePhillips' and Dr. Segura's opinions [Claimant's treating physicians] are entitled to controlling weight. If the ALJ finds that any of these opinions is not entitled to controlling weight, the ALJ needs to explain the basis for that finding." Ulloa, 419 F. Supp. 2d at 1037; R. 457; see also R. 405 (Appeals Council's effectuation of the district court's remand order).

In the interim, Claimant reapplied for DIB, and was ultimately found to be disabled as of February 1, 2003 by ALJ Daniel Dadabo ("ALJ Dadabo"). R. 483-87. Due to the then-pending district court appeal, ALJ Dadabo did not address the period prior to February 1, 2003 as he found it was not within the ALJ's jurisdiction. R. 475. The Appeals Council affirmed ALJ Dadabo's finding that Claimant was disabled as of February 1, 2003, but ordered a remand to determine whether Claimant was disabled from his alleged onset date of February 17, 2000 through January 31, 2003. R. 402-05.

On January 11, 2007, ALJ Paul Armstrong (the "ALJ" or "ALJ Armstrong") presided over a hearing at which Claimant appeared with his attorney and an interpreter. R. 406-40. A medical expert, Walter Miller, M.D., ("ME") and a vocational expert, Julie Bose, also testified at the hearing. R. 408. On January 31, 2007, the ALJ issued a decision finding Claimant was not disabled from his alleged onset date of February 17, 2000 through January 31, 2003 because he was able to perform a significant number of jobs existing in the national economy. R. 367-75. Claimant then filed for a review of the ALJ's decision, and the Appeals Council denied the request by letter on July 1, 2008. R. 358-60. Therefore, the ALJ's decision became the final decision of the Commissioner. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony - September 10, 2002 ("First Hearing")

1. David Ulloa - Claimant

As of this hearing, Claimant was thirty-four years old, but was thirty-two years old on the alleged onset date. R. 53, 334, 335. Claimant was married, and living with his wife, son, his sister-in-law, and his sister-in-law's baby. R. 341. Claimant was educated through the sixth grade in Mexico. R. 334. Claimant was unable to communicate in English and cannot read or write in English. R. 334-35. Claimant testified he could read and write in Spanish, but not very well. R. 334. All of Claimant's past relevant work experience was as a machine operator, cutting steel. R. 336-37, 348. His job responsibilities required him to lift steel weighing more than twenty pounds. R. 337.

On February 17, 2000, Claimant injured his back while working. R. 333, 335; see also R. 126). Claimant was off work until May 10, 2000. R. 335. From May 10, 2000 through August 2000, Claimant returned, unsuccessfully, to work with his former employer.

R. 335. His employer assigned him to a different job where he was not required to do any lifting. R. 336. His new responsibilities included completing inventory work, operating a forklift, and instructing other employees on how to operate machinery. R. 335, 349. In describing his attendance after returning to work, Claimant testified that he would often miss between four to seven days a month and that he would sometimes have to leave work early or only work half a day. R. 336, 345-46. As described below, this was because Claimant experienced pain in his lower back and legs and dizziness while standing. R. 338. Ultimately, Claimant stopped working because his employer wanted him to perform heavier tasks than he could perform. R. 336. The SSA considered this attempt to be an unsuccessful work attempt. R. 78.

During this hearing, Claimant testified he was unable to work due to pain in his lower back and legs and bouts with dizzy spells. R. 338. His pain in his back and legs prevented him from standing or sitting for prolonged periods of time. R. 336, 338. He experienced dizziness after about ten minutes of standing. R. 338. He could walk about ten minutes without stopping to rest. Id. Furthermore, Claimant testified he could only sit for about twenty to thirty minutes. Id. Claimant used a cane when out of his home, but did not generally use the cane while at home. R. 338-39. He was able to climb stairs with the assistance of a railing, and while painful, was able to bend and stoop. R. 338.

On a typical day, Claimant does some exercises prescribed by his doctor, bathes, eats, and reads the Bible. R. 341-43. He is able to take care of himself, but does not do much housework. R. 342. He sometimes walks around outside, including walking to the store, which is five minutes away. R. 342-43. He cooks or cleans "every once in awhile." R. 342. He also goes to church. R. 343. After his injury, Claimant went to physical therapy for about six months. Id.

Claimant testified that his condition was getting worse. R. 343. He did not know whether he needed more therapy to address the pain or whether the worsening of his condition was because he was sitting around a lot. Id. Between his first and second hearing, Claimant developed additional medical problems, namely neck problems that caused numbness in his hands. R. 415-16. Claimant refused to undergo surgery proposed by Dr. George DePhillips, M.D., ("Dr. DePhillips") because (1) Dr. DePhillips told him there was a fifty percent chance of improvement and (2) he had talked with other patients whose similar surgeries rendered them worse off after surgery. R. 345.

2. Gleeann Kehr - Vocational Expert

The Vocational Expert, Gleeann Kehr, reviewed Claimant's file and was present throughout the hearing. R. 331, 350. First, the VE discussed Claimant's work history. She testified Claimant's past relevant work is consistent with that of a machine operator. R. 350. The VE considered such work to be heavy and unskilled. Id.

Next, the VE answered several hypothetical questions posed by ALJ Mondi. The VE first opined an individual with Claimant's work experience, age, education, with the RFC of light work and subject to postural limitations, would not be able to return to any past work.

R. 351. The VE was then asked to determine whether there was any other work in the regional or national economy available for such a person. Id. Ultimately, the VE concluded that such work was available. Id. The VE concluded approximately 4000 machine operator, 3000 assembly, and 3000 packing positions were available within the Chicago metropolitan area. R. 351-52.

The VE then opined a lifting restriction of ten pounds would reduce, but not eliminate the availability of jobs. R. 352.The VE was then asked to assume a sit/stand option, to which the VE concluded all manufacturing jobs would be precluded. Id. Finally, the VE testified that an individual who "would need to miss four to seven days per month" would be precluded from performing substantial gainful activity. R. 353.

C. Hearing Testimony - January 11, 2007 ("Second Hearing")

1. David Ulloa - Claimant

As of the second hearing, Claimant moved to a new house, where he lives on the first floor. R. 421. Claimant testified he was still married and now has two children. Id.

Claimant's testimony during this second hearing was very much like the first. Claimant testified he must alternate between sitting and standing every fifteen to twenty minutes. R. 412. Claimant testified he still used his cane,with which he can walk for about twenty minutes. R. 415. Claimant added he sometimes has to lie down for two to three hours. R. 412. Additionally, Claimant described other problems that had developed since the first hearing, including a problem with his neck, which caused numbness in his hands.

R. 415-17.

In reviewing his attendance after returning to work in 2000 following his injury,

Claimant testified he had to stay away from work about seven to eight times a month. R. 417. Furthermore, he sometimes had to leave work early or just work a half day. R. 417, 418. Claimant repeated that his employer tried to accommodate him, but that he ultimately could no longer work because they could not give him work he was capable of doing. R. 418. Claimant also repeated his reason for not electing to have the surgery suggested by Dr. DePhillips. R. 419-20. Claimant also restated that his condition was getting worse. R. 424.

2. Walter Miller, M.D. - Medical Expert ("ME")

The medical expert, Dr. Walter Miller, M.D., a surgeon, examined Claimant's file and was present through the hearing. R. 408, 421-31. The ME noted there did not appear to be any significant nerve root compression, nor did straight leg raising cause significant radicular pain. R. 427. To this end, the ME concluded Claimant did not have radiculopathy.*fn1 Id. The ME further concluded there was no evidence Claimant met a listing, or even came close to one. R. 428. While noting Claimant had an injury that caused pain, the ME testified that the pain would be relatively light. Id. Thus, during the time frame at issue, the ME concluded Claimant was capable of light work. Id.

3. Julie Bose - Vocational Expert

The Vocational Expert, Julie Bose, reviewed Claimant's file and was present throughout the hearing. R. 408, 431-39. First, the VE discussed Claimant's work history. She testified Claimant's past relevant work is consistent with that of a welding machine operator. R. 431. As performed by Claimant, such a position is heavy in physical demand and is considered ...


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