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Raisbeck v. Astrue

July 22, 2009

MARK A. RAISBECK, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge P. Michael Mahoney

MEMORANDUM OPINION AND ORDER

I. Introduction

Mark Raisbeck seeks judicial review of the Social Security Administration Commissioner's ("the Commissioner") decision to deny his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Sections 216(i), 223(d), 1611, and 1614 of the Social Security Act. See 42 U.S.C. §§ 416(i), 423, 405(g), 1381(a), 1382(a), and 1383(c)(3). This matter is before the Magistrate Judge pursuant to the consent of both parties, filed on July 17, 2009. See 42 U.S.C. § 405(g); 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

The record indicates that Claimant has filed previous applications for a period of disability, and disability insurance benefits. (Tr. 12.) His most recent alleged onset date prior to this case was September 15, 1998. (Tr. 12.) The Commissioner denied his claim on June 19, 2001. (Tr. 12.)*fn1

Claimant reapplied for DIB and SSI on November 10, 2005, alleging a disability onset date of September 15, 1998. (Tr. 49, 134.) The Social Security Administration ("SSA") denied Claimant's applications initially on February 3, 2006, and upon reconsideration on May 16, 2006. (Tr. 31, 39.) At Claimant's request, the Administrative Law Judge ("ALJ") conducted a hearing into Claimant's application for benefits on April 25, 2007. (Tr. 150.) Claimant was represented by counsel and testified at the hearing. (Tr. 150.) Catherine Anderson, a vocational expert, also testified at the hearing. (Tr. 170.) The ALJ considered Claimant's age, education, past work experience, and residual functional capacity ("RFC"), and concluded that Claimant was not disabled as defined in the Social Security Act because he was capable of performing a significant number of jobs in the national economy. (Tr. 20--21.) The Appeals Council denied Claimant's Request for Review regarding the ALJ's opinion on August 31, 2007. (Tr. 4--6.) Therefore, the ALJ's 2007 opinion constitutes the final decision of the Commissioner (Tr. 4--6.)

III. Background

Claimant was born on September 26, 1957, making him 43 years old at the time of the earliest possible disability onset date for this claim, and 49 years old at his hearing. (Tr. 147.) Claimant has lived with his niece since he sold his house due to financial difficulties in July 2006. (Tr. 154--55.) He is single and has a 25 year old son. (Tr. 154.)

Claimant completed two years of high school and attended one year of college prior to beginning his employment. (Tr. 61.) His past work includes employment as a laborer at an automotive factory, and as a packer at a cheese manufacturer. (Tr. 63--64.) At Argyle Industries, Claimant disassembled brake and master cylinders from 1984 until 1996. (Tr. 57, 63.) He packaged and loaded cheese at Mexican Cheese Producers from 1997 until 1998. (Tr. 57, 64.) Both of these positions are considered heavy, unskilled labor, which require mostly standing and walking, lifting 50 pounds frequently, constant reaching, and handling large and small objects. (Tr. 98.) Claimant had surgery on his back in 1989, and claims lower back pain ever since. (Tr. 122, 106.) In February 1997, Claimant caught his left hand in an auger at work, which resulted in the amputation of four fingers. (Tr. 56, 60.)

The ALJ conducted a hearing on April 25, 2007. (Tr. 147--81.) Claimant testified that he was last employed by Mexican Cheese Producers in 1998. (Tr. 151--52.) He testified that he had done some odd jobs for a friend, including cleaning up debris at a farm to prepare it for an auction. (Tr. 152.) This involved picking up junk and chaining old farm equipment to a Bobcat to be hauled away. (Tr. 152.) Claimant noted that he had not received recent treatment for his back and only took aspirin approximately once every two weeks because he was unable to afford more extensive care. (Tr. 158.) He testified that his back pain increased when he bends over and after long periods of sitting. (Tr. 159.) He also noted that he had been having knee pain, and that his ligaments were getting bad. (Tr. 159--60.) Claimant stated that he was able to walk a mile. (Tr. 160.) He testified that he had trouble reading big words, and needed assistance when he filled out paperwork for his disability claim. (Tr. 160.) He testified that his left hand gave him difficulties with doing dishes, sweeping, mopping, and folding clothes. (Tr. 162.) He has a valid drivers license and is able to drive his manual transmission truck without difficulty. (Tr. 163--64.) Claimant testified that he enjoys deer hunting with a crossbow and a shotgun, and is able to load and pump his shotgun without assistance. (Tr. 164--65.) However, he described problems keeping his left hand warm while hunting. (Tr. 167.) He noted that he always hunted by himself, but required assistance with hauling the deer out of the woods. (Tr. 168.) He also testified that he enjoyed fishing, but had not been in three years. (Tr. 165.)

IV. Medical Evidence

In April 2001, Dr. Jankus, a consulting physician in Neenah, Wisconsin, examined Claimant pursuant to his disability claim. (Tr. 101.) Dr. Jankus described several physical problems alleged by Claimant during the visit. He noted Claimant's problems pinching and gripping caused by his amputated digits, and hypersensitivity in the stump tips of the digits. (Tr. 101.) Claimant also described pain and sensitivity in the ventral aspect of his palm, and in the MCP joints of his index, middle, and ring fingers.*fn2 (Tr. 101.) Claimant noted that these problems with his left hand give him difficulties with playing softball, fishing, hunting, doing dishes, and gripping heavy tools. (Tr. 101.) He stated that cold weather aggravates his hand injuries. (Tr. 101.) Claimant said he was able to do his own self care activities and household chores using mostly his right hand. (Tr. 101.) Claimant estimated that his left hand worked in the range of 15--20% as well as his right hand, and reported that if he did not have hand problems he would otherwise be unlimited. (Tr. 102.) He did not describe any difficulties with lower extremity function. (Tr. 102.) Claimant told Dr. Jankus that he was able to do some part time construction work for a friend, but could only sustain activity for a couple of hours before he had to stop and rest. (Tr. 102.) Dr. Jankus documented Claimant's ability to use his left hand. (Tr. 102.) Claimant primarily used a pinching technique between this fourth and fifth digits, and demonstrated that he could tie his shoes, unbutton his shirt and pants, and take off his sweater. (Tr. 102--3.) Dr. Jankus confirmed Claimant's hypersensitivity and inability to tolerate firm gripping, firm pinching, heavy lifting, and cold environments. (Tr. 103.) He opined that Claimant's estimate of 15--25% function in his left hand was reasonable, and that Claimant had lost all practical function of his left hand other than the pincher mechanism between his fourth and fifth digits. (Tr. 103.) Dr. Jankus concluded that any work should be confined to Claimant's right hand. (Tr. 103.) Finally, he noted that Claimant completed two years of high school, attended special education courses because of a learning disability, and had never been good at writing. (Tr. 103.)

In January of 2006, Dr. Stenberg at Tri-State Occupational Health in Dubuque, Iowa examined Claimant at the request of the Wisconsin Disability Determination Bureau. (Tr. 104.) Dr. Stenberg described Claimant's hand injury as a partial amputation of the distal phalanx of the thumb, complete amputation of the index finger at the MCP joint, amputation of the long finger at the PIP joint, and partial amputation of the tip of the ring finger including most of the nail bed.*fn3 (Tr. 104.) Claimant described marked limitation in the motion of his left hand. (Tr. 104.) Claimant completed and submitted a questionnaire regarding his injuries prior to the appointment. (Tr. 104.) On the questionnaire, Claimant did not shade-in any areas of pain on the diagram, and reported no pain in his upper body or arm. (Tr. 104.) He noted pain in his left wrist, and pain in his lower back about three-quarters of the time, ranging from 0--8 on the analog pain scale. (Tr. 104.) Claimant stated that he experienced his worst pain in 1990 after he injured his back, and that he had no numbness or tingling in his lower extremities. (Tr. 104.)

Dr. Stenberg noted that Claimant's left hand gets cold quickly. (Tr. 104.) Claimant stated that he could sit for approximately two hours before his back got stiff, stand for between four and eight hours a day, and walk a mile without difficulty. (Tr. 105.) He also stated that he has no difficulty kneeling or crawling, and that he is independent in activities of daily living such as bathing and dressing. (Tr. 105.) Claimant cited an increase in lower back pain when he bends forward, and stated that the most he lifts is 10 pounds. (Tr. 105.) Claimant was able to exert 46 kg of force with his right hand and 18 kg of force with his left hand, but stated that it was painful. (Tr. 105.) Dr. Stenberg noted Claimant's marked decreased motion with the left thumb and extremely weak pinching mechanism between his thumb to ring and small finger. (Tr. 106.) He noted that Claimant had normal range of motion with his left knee, but also had marked crepitus with both active and passive flexion and extension.*fn4 (Tr. 106.) Accordingly, Dr. Stenberg opined that Claimant should not perform occupations that would require him to stoop, squat, kneel, or crawl. (Tr. 106.) Dr. Stenberg also reported on Claimant's side bending, extension, and flexion of his spine. (Tr. 106.) He noticed lower back pain at the end range of motion, when Claimant's fingers were about six inches from his toes. (Tr. 106.) Claimant was able to squat down to the floor and rise to the standing position. (Tr. 106.) Dr. Stenberg diagnosed Claimant with chronic back pain and amputation of several digits of the left hand with ongoing weakness. (Tr. 106.) Dr. Stenberg opined that Claimant was impaired because he had effective use of only one hand, which would prevent him from working at heights or on ladders. (Tr. 106.) He also noted that Claimant would have no difficulty climbing stairs or lifting and carrying 10 pounds on a frequent basis. (Tr. 106.) He found no impairment in Claimant's ability to stand, walk, move about, or sit for an eight-hour work day given appropriate work breaks. (Tr. 106.) Finally, Dr. Stenberg requested an x-ray of Claimant's spine. (Tr. 107.) The x-ray revealed mild lumbar degenerative changes with disk space narrowing between the L3--4 and L5--S1 levels and no evidence of acute traumatic. (Tr. 107.)

In January 2006, Dr. Foster, a non-examining, consulting physician, conducted a Physical Residual Functional Capacity ("RFC") Assessment on Claimant based on his hand, back, and knee problems. (Tr. 113--120.) Dr. Foster classified Claimant's RFC as light work. (Tr. 114, 123.) In his opinion, Claimant could ordinarily lift 20 pounds, frequently lift 10 pounds, stand/walk about six hours in an eight-hour work day, and sit about six hours in an eight--hour work day. (Tr. 114.) He indicated that Claimant had no postural, visual, communicative, or environmental problems. (Tr. 115--17.) He also noted that Claimant had a limited ability in pulling, pushing, handling, fingering, and feeling. (Tr. 116.) In May 2006, Dr. Baumblatt, M.D., reviewed the evidence and affirmed Dr. Foster's RFC assessment. (Tr. 121.)

In February 2007, Claimant visited Dr. Krieger at Blankenheim Services in Appleton, Wisconsin for an employment screening pursuant to his application for a welding position. (Tr. 133.) Dr. Krieger found that Claimant experienced some left shoulder pain with overhead range of motion. (Tr. 133.) He also noted Claimant's irritable ulnar nerve, Tinel sign, and finger vibrations with wrist Tinel sign.*fn5 (Tr. 133.) He measured Claimant's grip strength at 110 pounds on the right and 43 pounds with pain on the left. (Tr. 133.) He also found that Claimant experienced lower back pain with bilateral rotation, knee pain with flexing, and pain on the bottom of his left foot with flexing. He stopped Claimant's 20--25 pound lift test due to pain. (Tr. 133.) Dr. Krieger recommended that Claimant limit use of his left hand and arm. (Tr. 133.) He also limited Claimant's lifting with both hands to 15 pounds, and suggested that he do minimal twisting of his torso during work activities. (Tr. 133.) Finally, he noted that these restrictions were to be permanent. (Tr. 133.)

V. Standard of Review

The court may affirm, modify, or reverse the ALJ's decision outright, or remand the proceeding for rehearing or hearing of additional evidence. 42 U.S.C. § 405(g). The ALJ's legal conclusions are reviewed de novo. Binion v. Charter, 108 F.3d 780, 782 (7th Cir. 1997). However, the court "may not decide the facts anew, reweigh the evidence or substitute its own judgment for that of the [ALJ]." Id. The duties to weigh the evidence, resolve material conflicts, make independent findings of fact, and decide the case are entrusted to the Commissioner. Schoenfeld v. Apfel, 237 F.3d 788, 793 (7th Cir. 2001) ("Where conflicting evidence allows reasonable minds to differ as to whether a claimant is entitled to benefits, the responsibility for that decision falls on the Commissioner.").

If the Commissioner's decision is supported by substantial evidence, it is conclusive and this court must affirm. 42 U.S.C. ยง 405(g); see also Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). "Substantial evidence" is "evidence which a reasonable mind would accept as adequate to support a conclusion." Binion, 108 F.3d at 782. If the ALJ identifies supporting evidence in the record and builds a "logical bridge" from that evidence to the conclusion, the ALJ's findings are supported by substantial evidence. Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005). However, if the ALJ's decision "lacks ...


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