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McCurrie v. Astrue

January 25, 2010


The opinion of the court was delivered by: Amy J. St. Eve United States District Court Judge


AMY J. ST. EVE, District Court Judge

Plaintiff, Billy McCurrie, has moved for summary judgment, seeking reversal or remand of the Social Security Administration ("SSA") Commissioner's final decision denying Plaintiff's claim for Supplemental Security Income ("SSI"). Defendant, Social Security Administration Commissioner Michael Astrue ("Commissioner"), has filed a cross-motion for summary judgment, requesting that the Court affirm the Commissioner's final decision. For the following reasons, the Court denies Plaintiff's motion for summary judgment, grants Defendant's motion for summary judgment, and affirms the Commissioner's final decision.


According to the parties, Plaintiff McCurrie applied for SSI on August 16, 2005, alleging that he became disabled on January 30, 1998.*fn1 (AR at 208.) The SSA denied his application initially on October 17, 2005, and upon reconsideration on February 6, 2006. (Id. at 106-07). At Plaintiff's request, on November 28, 2007, Administrative Law Judge Daniel Dadabo ("ALJ") held a hearing, at which Plaintiff, medical expert Ronald A. Semerdjian ("ME"), and vocational expert Frank M. Mendrick ("VE") testified. (Id. at 36-90.) Plaintiff was represented by counsel at the hearing. (Id.)

The ALJ issued a decision on January 24, 2008, finding that Plaintiff was not disabled. (Id. at 111-19.) Specifically, the ALJ found that Plaintiff (1) had not engaged in substantial gainful activity since August 16, 2005; (2) had hypertension, lumbar arthritis, and a history of remote trauma and alcohol abuse; (3) did not have an impairment or combination of impairments that met or medically equated to one of the impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) had the residual functional capacity ("RFC") to perform light work, except around unprotected heights, heavy equipment, or operating machinery; (5) had no past relevant work; (6) was 52 years old when he filed the application; (7) had a limited education and was able to communicate in English; (8) had housekeeper, general assembly, and inspector jobs available to him in significant numbers in the national economy; and (9) had not been under a disability since filing the application. (Id. at 113-18.) The SSA's Appeals Council denied review of the ALJ's decision on April 23, 2009. (Id. at 1-6.)


Plaintiff McCurrie testified at the hearing that he: had elected to get a cane, which he had been using for the preceding four years (id. at 41, 75); was unable to work due to pain in his lower back, hand, and leg (id. at 42); had difficulty standing and walking (id.); could walk about two blocks with his cane before having to sit (id. at 42-43); had fallen down approximately twenty times in the preceding six years because his legs went out (id. at 43); had difficulty holding objects due to his hand pain (id.); had constant pain in his arm (id. at 49); had experienced hand cramping (id. at 50); had difficulty in a janitorial job for six months in 2001 (id. at 51); required hour-long breaks due to his hand and fingers spreading out (id. at 56); wore a back brace (id.); and had friends who would help him with household activities (id. at 57).

At the ALJ's request, Dr. James P. Elmes performed a consultative examination of Plaintiff on April 24, 2007. Based on the history that Plaintiff provided him, Dr. Elmes reported Plaintiff's history of decreased strength in both legs, inability to lift more than fifteen pounds, and limited ability to sit for more than one continuous hour, walk more than three blocks, stand more than an hour, reach above shoulder height, twist his body, kneel, and squat. (Id. at 453-54.)

The ME testified at length regarding Plaintiff's medical history before concluding that Plaintiff could do light work. Specifically, the ME testified that: in effect what we're left with is a history of back pain that has been recurrent over the years. The only imaging being two x-rays of the lumbar spine, neither of which show any evidence of fractures but just show degenerative joint disease, which can be consistent with age. The neurologic examination is not really impressive, it's relatively normal by description. So he has back pain but I don't find the listing that it would meet with these findings. (Id. at 65.) He later stated that he did not find any medical impairment that reasonably met one of the Commissioner's listings. (Id. at 72.) The ME further stated that, based on the objective evidence, Plaintiff would be able to perform light work. (Id. at 73.) If the ME were to consider what Plaintiff had said regarding his history, however, the ME testified that Plaintiff probably could not perform light work. (Id. at 73.) The ME also testified that nobody prescribed a cane for Plaintiff. (Id. at 75.) With respect to Plaintiff's disk condition, the ME noted that a November 2005 report showed moderate degenerative joint disease and that "it's not unusual to find degenerative changes in the lower back or to find narrowing of, of a space. But the presence of narrowing of a disk space per se does not mean that there is neurologic impairment." (Id. 80- 81.)

The vocational expert ("VE") testified that Plaintiff would be capable of performing, among other jobs, housekeeping, general assembly, and simple inspection jobs. (Id. at 83-84.) He testified that Plaintiff had available to him over 25,000 housekeeping jobs, over 8,000 general assembly jobs, and 4,500 inspection jobs. (Id. at 83-84.) When asked if Plaintiff could perform those jobs if he needed a cane, the VE testified that Plaintiff would not be able to perform the housekeeping work but could perform the assembly and inspection jobs "as long as he doesn't need the cane for standing up straight." (Id. at 84.) The VE also testified that, if Plaintiff were limited to carrying fifteen pounds and could stand for up to one hour, Plaintiff would be limited to sedentary work. (Id. at 86.) The VE further testified that if Plaintiff could not occasionally use his hands, he would not be able to perform housekeeping, general assembly, and inspection jobs. (Id. at 88.)

At the conclusion of the hearing, Plaintiff's counsel indicated that he might ask Cook County Hospital to "do routine testing on [Plaintiff]," and the ALJ responded that Plaintiff's counsel was welcome to submit any additional evidence during the time in which the ALJ was making a decision. (Id. at 88-89.) On September 22, 2008, over nine months after the hearing and roughly eight months after the ALJ issued his ruling, Plaintiff underwent an electromyography ("EMG") exam of the cervical spine, which revealed moderate-to-severe narrowing at the C 4-5 disc space, moderate narrowing at the C 6-7 disc space, electrophysiologic evidence of radiculopathy at C 5-6 and L4-S1, and evidence of right median mononeuropathy of the wrist. (Id. at 534-37.) Dr. James Dorman summarized the results of this examination in a report ("Examination Report"). On January 16, 2009, Plaintiff, through counsel, submitted the Examination Report to the Appeals Council. (Id. at 531-32.) Plaintiff subsequently submitted evidence to the Appeals Council that he walked with a cane. (Id. at 541.)


I. Standard of Review

"If the appeals Council denies a request for review, . . . the ALJ's decision becomes the final decision of the Commissioner of Social Security." See Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009). A reviewing court's role in reviewing an ALJ's decision is "'extremely limited.'" Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009) (quoting Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008)).

A court will affirm an ALJ's denial of benefits "so long as the decision is not based on legal error and is supported by substantial evidence." Luster v. Astrue, No. 09-1132, 2010 WL 21194, at *2 (7th Cir. Jan. 5, 2010); see also Hopgood v. Astrue, 578 F.3d 696, 698 (7th Cir. 2009); Golembiewski v. Barnhart, 322 F.3d 912, 915 (7th Cir. 2003) (noting that "[t]his is a deferential but not entirely uncritical standard"). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420 (1971)); see also Aitken v. Barnhart, No. 03 C 5354, 2004 WL 785096, at *4 (N.D. Ill. Apr. 12, 2004). Accordingly, "even if reasonable minds could differ concerning whether [one] is disabled, [a reviewing court will] affirm if the ALJ's decision has adequate support." Simila, 573 F.3d at 513 (internal quotation omitted). Furthermore, "[t]he ALJ must build an accurate and logical bridge between the evidence ...

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