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Bragg v. Astrue

February 22, 2010


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


Claimant Joseph Adolphus Bragg, Jr. ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant" or "Commissioner"), denying Claimant's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Claimant raises the following issues: 1) whether the ALJ properly favored the testimony of the medical examiner ("ME") over the evidence produced by Claimant's treating physician in his determination of Claimant's residual functional capacity ("RFC") (and in posing hypothetical questions to the Vocational Expert); 2) whether the ALJ failed to consider all of Claimant's impairments in combination; and 3) whether the ALJ's credibility finding regarding Claimant's testimony was patently wrong. For the following reasons, the Court denies Claimant's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.


A. Procedural History

Claimant initially applied for DIB and SSI on January 23, 2006, alleging a disability onset date of March 1, 2005. R. 58-59, 65. The Social Security Administration ("SSA") denied his applications on April 18, 2006. R. 58-59. Claimant then filed a request for reconsideration, which was denied on November 2, 2006. R. 88, 60-61. Thereafter, Claimant requested a hearing before an ALJ. R. 95.

On March 18, 2008, Administrative Law Judge Joseph P. Donovan, Sr. ("ALJ") presided over a hearing at which Claimant appeared with his attorney, Ellen Hanson. R. 8-52. In addition to Claimant, Dr. William H. Newman, a medical expert, and Leanne Carey, a vocational expert, also testified. Id. On September 23, 2008, the ALJ issued a decision finding Claimant was not disabled under the Social Security Act. R. 62-76. Specifically, the ALJ found Claimant had "the residual functional capacity to perform a limited range of light work" and was "capable of making a successful adjustment to other work that exists in significant numbers in the national economy." R. 74, 76.

Claimant then filed for review of the ALJ's decision to the Appeals Council, which denied Claimant's request on April 9, 2009. R. 4-6. On June 8, 2009, the Appeals Council set aside this earlier action to consider additional information. R. 1-3. Upon considering the additional information, the Appeals Council again denied Claimant's request for review. Id. 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 -- March 18, 2008

1. Joseph Adolphus Bragg, Jr. -- Claimant

At the time of the hearing, Claimant was 38 years old. R. 12. Claimant's highest educational level is a GED. Id. Claimant's most recent employment as a union laborer ended in February 2005, when he stopped working due to "problems with [his] arms and legs and pain . . . from the neck down [his] arms and legs." R. 13. He is financially supported by his family. Id.

Claimant testified that he is able to sit for ten or fifteen minutes before becoming uncomfortable. R. 14. At that point, he lies down, gets into a different position, or walks around. Id. He is able to stand for "five minutes [or] thirty minutes," and frequently must grab hold of something to support himself. Id. However, he does not use a cane or other assistive walking device. Id. Claimant testified that he is able to walk approximately 100 feet, but he is unable to crouch, bend at the hip, bend at the knees, or crawl. R. 15. He stated that he is unable to raise his arms above elbow to shoulder without discomfort. Id. Claimant testified that he is not able to engage in any type of pushing or pulling. R. 17.

Claimant is able to reach out to the side or forward, and can make a fist with either hand. R. 16. He is able to lift five or ten pounds without pain, and would be able to carry a gallon of milk--which weighs approximately eight pounds--about twenty-five feet. R. 16, 17. However, he testified he drops things "quite often." R. 21. Claimant is physically able to shower, dress himself, make his bed, and use small items such as a shaver or a toothbrush.

R. 18. He did not report problems with maintaining concentration. R. 19.

Claimant noted pain and numbness in his fingers. R. 21. Claimant also stated that "they" (unspecified doctors) wish to do surgery on his cervical spine, but have not identified what procedure is appropriate. Id. Claimant noted that these unspecified doctors are waiting for him to get on Medicare, as such surgery "could get expensive." R. 22.

According to Claimant, he does as much as he can to work. R. 34. However, he claimed that he can't climb stairs and can't "lift stuff and carry it," and, when he tries, he "end(s) up laying down on a bed for three or four days before I can get up and move again because I get in so much pain I lose control of my legs, my arms." Id. Claimant also noted that his doctors have diagnosed him with carpal tunnel syndrome in both hands. R. 38.

Claimant has lost his driver's license on account of three moving violations. R. 35. Even with a driver's license, however, he wouldn't drive on account of "the medications and the condition I'm in." Id.

Claimant testified that he does not use any "street drugs." R. 36. Claimant testified that he is taking Fentanyl, 50 mg a day; Norco 10325, six times a day; Valium, 10 mg at night for sleep; and Flexeril, either 10 or 25 mg, for sleep. R. 39. Claimant noted that he sleeps for "four [or] five hours, tops," and takes twelve hours to get six hours of sleep. R. 40.

2. Dr. William H. Newman -- Medical Expert ("ME")

Dr. William H. Newman, an orthopedic surgeon, testified as a medical expert. R. 23, 132. The ME noted that Claimant's major physical problem is his cervical spine. R. 24. The ME opined, however, that surgical intervention in 1990 was successful, and Claimant no longer has locked facets. Id. The ME testified that Claimant does have other pathology in his neck that was not addressed by the surgery: a bulging disc at C2 and C3 and some posterior spurs at C7. Id. The ME believes the C2 disk partly explains Claimant's right shoulder pain and is reasonably related to any pain Claimant might have down the right arm to his fingers, as well as numbness. R. 25. The ME further testified that Claimant has moderate right carpel tunnel syndrome. Id. The ME found a nerve latency of 5.1 milliseconds in Claimant's right hand, which exceeds the normal latency range of 3.6 - 3.8 but falls short of 7 or 8 milliseconds, which would be considered a marked impairment. R. 26-27. Consequently, the ME opined that Claimant experiences a "little numbness and a little clumsiness." R. 27. The ME noted that this level of carpal tunnel does not preclude constant light use or handling of small objects, or strenuous non-continuous light use. R. 28. Fine manipulation, strenuous grasping, or twisting and gripping with the right hand would be limited to one third of the day. R. 31-32.

The ME further noted that the EMG showed no cervical or lumbar radiculopothy. R. 28. However, this did not preclude the possibility of occasional numbness in Claimant's right arms, on account of the C2 disk. R. 28. Considering each of these issues "together in combination," the ME opined that Claimant did not equal the severity listing. R. 30.

The ME testified that Claimant would be able to lift, push, and pull, twenty pounds occasionally and ten pounds frequently. R. 31. The ME found Claimant able to stand and walk at least six hours in an eight-hour day, or sit six hours in an eight-hour day. Id. Constant overhead work would be restricted. R. 32. The ME noted no limitations regarding kneeling, crouching, crawling, stooping, or bending. R. 33.

The ME also found evidence of paresis in Claimant's feet. R. 36. The ME suspected this paresis might have been caused by alcohol use, basing this hypothesis on a neurologist smelling alcohol on the Claimant, as well as Claimant's alcohol seizures on April 1, 2006. Id. An EMG of both lower extremities did not show a polyneuropathy. R. 38. The ME also noted that Claimant has high blood pressure and borderline hypertension. R. 37.

The ME testified that his conclusions were based primarily on the myelogram and EMG in exhibit 30F and the MRI in exhibit 1F. R. 41-42. The ME stated that there was a lack of objective physical evidence to explain the large amount of narcotics prescribed to Claimant. R. 42. He noted that the EMG performed on October 19, 2006 did not exhibit changes "substantially different" from that performed on October 18, 2005, and did not show evidence of denervation or support C5/T1 or L3/S1 radiculopothy on either side. R. 45. The ME noted that the EMG would be the authoritative medically determinable technique to determine a neurological deficit, and that the EMG did not indicate any polyneuropathy. Id.

3. Leanne Carey -- Vocational Expert ("VE")

Leanne Carey testified as a vocational expert. R. 46. The VE noted that Claimant's position as a union laborer had heavy physical demands, with a Specific Vocational Preparation ("SVP")*fn1 of 2. R. 47. Claimant was also self-employed doing automobile repair, which is considered skilled work with a SVP of 7. Id. The ALJ presented the VE with a detailed hypothetical person based on the ME's proposed restrictions. R. 47-48. The VE opined that this hypothetical person would not be able to perform Claimant's past relevant work. R. 48. The VE testified that the most appropriate positions would be "light, unskilled positions" such as a counter clerk, office helper, or information clerk. R. 48-49. The VE explained that these jobs are all available in the Chicago metro area. R. 48.

C. Medical Evidence

1. 1990 Neck Operation at Northwestern Memorial Hospital

Claimant's medical records date back to a January 1990 neck operation. R. 519. Following the operation, Claimant was kept in a halo for three months, and experienced discomfort upon the halo's removal in April 1990. R. 531. A contemporaneous April 1990 CT myelography noted there was no evidence of disk herniation, the spinal cord appeared normal, there was no ...

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