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Crawford v. Astrue

July 9, 2009

LEROY CRAWFORD, JR., PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

Magistrate Judge Morton Denlow

MEMORANDUM OPINION AND ORDER

Claimant Leroy Crawford, Jr. ("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 that the Claimant is not disabled; (2) whether the ALJ made a proper credibility determination; (3) whether the ALJ properly determined Claimant's residual functional capacity ("RFC"); and (4) whether the ALJ erred in considering testimony from the Vocational Expert ("VE") by allegedly failing to solicit an explanation for inconsistencies between the VE's testimony and the Dictionary of Occupational Titles ("DOT"). For the following reasons, the Court denies Claimant's motion for summary judgment 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 January 5, 2005, alleging a disability onset date of September 29, 2004. R. 70-72. The Social Security Administration ("SSA") denied his application on March 22, 2006. R. 39-43. Claimant then filed a request for reconsideration, which was denied on June 21, 2006. R. 44-48. Subsequently, Claimant requested a hearing before an ALJ. R. 49.

On May 22, 2007, Administrative Law Judge Edward B. Pappert presided over the hearing at which Claimant appeared with his attorney. R. 1-30. On August 30, 2007, the ALJ issued a decision finding Claimant was not disabled and thus not entitled to DIB. R. 209-218. Specifically, the ALJ found Claimant has the RFC to perform light work, 2100 "light" dishwasher positions exist in the nine northeastern Illinois counties, and Claimant therefore is capable of performing his past relevant work as a dishwasher. R. 214-218.

On October 23, 2007, Claimant filed a request for review of the ALJ's decision, which the Appeals Council denied on July 18, 2008. R. 31-33, 205-208. The ALJ's decision therefore 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 - May 22, 2007

1. Leroy Crawford, Jr. - Claimant

As of the hearing, Claimant was forty-nine years old, single, and living alone. R. 6. He attended two years of college and received a certificate of music. R. 9. He does not have a driver's license and relies on either friends or public transportation for travel. Id. His past relevant work experience consists almost exclusively of dishwashing, with a small amount of experience as a line cook. R. 7-8.

Claimant initially injured his back on September 29, 2004. R. 10-11. X-rays obtained after the injury indicated degenerative disc disease. R. 11. Claimant testified he did not work between September 2004 and August 2005 because his "lower back was really hurting." R. 12. During the months following his September 2004 injury, he visited a chiropractor three times per week, after which he felt some relief. Id. In August 2005, Claimant returned to work, but after his knee gave out in January 2006, he stopped working and has not worked since. R. 12-13.

In early 2007, under the care of Dr. Bhojwani, Claimant underwent x-rays of his knees and back, and an MRI of his brain. R. 13. Claimant's MRI results were normal except for sinus inflamation. R. 14. He testified his headaches began in 2004. R. 13. He stated the headaches occur every day and last all day. R. 17. At one time he used Tylenol to relieve the headaches, but it did not help and he now takes no medication. R. 17-18. He can generally function with a headache, but approximately one day per week his headaches leave him unable to function for up to an entire day. R. 20-21. During the hearing, Claimant stated his head hurt and he could not concentrate. R. 21.

Claimant experiences his headaches near his temple and about once a week he feels as though he is going to pass out. R. 14. He stated that he did pass out once, approximately two weeks prior to the hearing, but there were no witnesses to the incident. Id. When questioned by the ALJ, he offered contradictory testimony. R. 15. When the ALJ asked Claimant how it was possible that he passed out only once, two weeks ago, but told Dr. Bhojwani about it three months ago, Claimant stated that his passing out "may have been longer than that ago." Id.

Claimant stated his sleep is restless, he awakens because of pain and anxiety. R. 22. He also stated it has been a long time since he has been able to concentrate on something and, in the last three years, the longest he remembers being able to concentrate is for three hours while writing a song. R. 23.

During the day he sometimes goes shopping, reads music, plays the keyboard, or watches T.V. until his headaches cause him to stop. R. 17. Claimant leaves his home approximately three times per week. R. 17. He sometimes takes the bus to see his case worker for general assistance; he walks about three blocks to the train to go to the grocery store. R. 18-19. His lower back and knees make walking difficult and, although both knees are weak, his right knee gives out most frequently due to an injury for which he had surgery in 1989. R. 19.

Depending on the pain, some days Claimant cannot get up and must stay home. R. 21. He testified that if he had a job, there would be days it would be difficult or impossible to go to work because of his pain or headaches. Id. Claimant speculated that his back and headaches might cause him to miss work three or four days in a typical month. R. 21-22.

Claimant states he is not receiving treatment for his back and knees due to lack of finances. R. 23. In response to this exchange, the ALJ asked Claimant why he does not go to Cook County Hospital ("CCH"). R. 24. Claimant replied he was "told now that they charge you." Id. The ALJ suggested it would not hurt for Claimant to go find out, to which Claimant agreed. Id.

2. James J. Radke - Vocational Expert (VE)

Vocational expert James J. Radke reviewed Claimant's file and was present at the hearing. R. 3, 24-29. The VE began his testimony by discussing Claimant's work history. He testified that dishwashing positions are generally medium and unskilled, and line cook positions are typically light and semi-skilled, without transferable skills. R. 25-26.

The ALJ asked the VE hypothetical questions about the type of work a person with Claimant's limitations would be able to perform. R. 26-28. Initially, the ALJ asked the VE to assume an individual of Claimant's age, education, and relevant work history who was unable to lift and carry more than 50 pounds occasionally and 25 pounds frequently, and was unable to maintain the attention and concentration necessary for any detailed or complex tasks. R. 26. The VE concluded such an individual could perform Claimant's past dishwashing position, but likely could not perform the line cook position. Id.

The VE was then asked to assume an individual limited to carrying not more than 20 pounds occasionally and 10 pounds frequently, unable to perform postural movements such as stooping, crouching, crawling and kneeling more than occasionally, and unable to perform detailed or complex tasks. Id. The VE again concluded such an individual could perform a job as a dishwasher, but not as a line cook. R. 27.

The ALJ then asked the VE about the availability of light dishwashing positions. Id. The VE testified his statistics show one third of dishwashing positions are performed at the light level, and 2100 such positions exist in the nine county northeastern Illinois area.*fn1 Id.

Finally, the ALJ asked whether the hypothetical individual could perform Claimant's past work if he were limited to standing and walking no more than two hours in an eight hour day, and lifting or carrying no more than 10 pounds occasionally and lesser amounts frequently. The VE concluded an individual with these limitations could not perform Claimant's past work. When asked whether other work existed for such a claimant, the VE stated that, in the nine county northeastern Illinois area, there are approximately 3,700 receptionist positions at the sedentary, unskilled level, 2,100 general office clerk positions, and 900 order clerk positions. Id.

Claimant's counsel then asked the VE about the acceptable rate of absenteeism for these positions. R. 28. The VE testified that an acceptable number of absences was less than one day per month or nine days per year, that this would also apply to "light" dishwashing positions. Id. When questioned about the effect of a weekly unscheduled one to two-hour work break, the VE stated that such a need would be incompatible with competitive employment. Id. The VE also indicated an individual's inability to concentrate at work could have a significant impact on his ability to perform these jobs. R. 29.

C. Medical Evidence

1. Initial Chiropractic Treatment and X-Rays

The only treatment notes of record were made by a chiropractor in April 2004 following a work accident by Plaintiff. R. 197-203. This was five months before the alleged onset of disability in September 2004. In October 2004, Dr. Douglas M. Gregorson, a chiropractor, interpreted X-rays of Claimant's spine. He found "minor" spondylosis,*fn2 "minor sacroiliac joint arthritis," and what "appears to be a degree of degenerative disc disease at L3-L4, even though there is not gross loss of disc space." R. 186.

2. Dr. Barry Lake Fischer, M.D. -- Independent Medical Examiner

In March 2005, Claimant received a medical evaluation from Dr. Barry Lake Fischer ("Dr. Fischer") following a slip and fall at work. R. 153-156. Claimant complained of pain, soreness and stiffness in his lower back, but his neck had improved. R. 154. Dr. Fischer noted Claimant's lower back showed no visible deformities, but he had limited range of motion in his lumbar spine. Id. An X-ray revealed well-maintained lumbar disc spaces and no evidence of fracture or dislocation. R. 155. Dr. Fischer's diagnosis was that Claimant had "sustained a lumbosacral strain injury with limited range of motion of his lumbar spine in flexion, extension, and lateral bending" and "straight leg raising is limited bilaterally more so in the right indicating lumbar nerve root irritation." Id. He concluded Claimant's injuries resulted in "moderate industrial loss to [his] person as a whole." Id.

3. Scott A. Kale, M.D. ("Dr. Kale") -- Internal Medicine Consultative Examiner

On March 1, 2006, Claimant received a complete examination from Dr. Kale, an internist, at the request of the State Agency. R. 157-160. Claimant reported to Dr. Kale a long history of neck and low back pain, and a history of knee pain making him unable to stand or walk for long periods of time. R. 157 Although Claimant walks with a limp, he does not require a cane and does not experience collapse of his legs. Id. Claimant reported no additional medical problems. Id. There was no mention of headaches.

Dr. Kale found that Claimant had a normal range of motion in his cervical spine, knees, ankles, shoulders, elbows, wrists, and fingers despite Claimant's considerable grimacing, moaning and groaning. R. 159. Dr. Kale remarked that Claimant's "gait [was] antalgic in a bizarre way with a combination of mild shuffling and moaning and groaning which is most un-anatomic insofar as his hips and knee examinations are unremarkable." Id.

Dr. Kale also performed neurological and mental status examinations without finding abnormalities. Id. Claimant agreed all medical complaints had been addressed during the examination. R. 160. Dr. Kale's clinical impression was that Claimant has an "[u]nconvincing history of low back and neck pain ...


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