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Hernandez v. Astrue

May 18, 2010


The opinion of the court was delivered by: David G. Bernthal U.S. Magistrate Judge


In January 2008, Administrative Law Judge (hereinafter "ALJ") James Gildea denied Plaintiff Phyliss Hernandez's application for disability insurance benefits. ALJ Gildea based his decision on a finding that Plaintiff was able to perform her past jobs or other jobs that exist in significant numbers in the national economy.

In November 2008, Plaintiff filed a Complaint For Judicial Review (#3) against Defendant Michael Astrue, the Commissioner of Social Security, seeking judicial review of the ALJ's decision to deny social security benefits. In April 2009, Plaintiff filed a Motion for Summary Judgment or Remand (#11). In June 2009, Defendant filed a Motion for an Order Which Affirms the Commissioner's Decision (#14). In August 2009, Plaintiff filed a Reply to Defendant's Memorandum in Support of Motion for Summary Affirmance (#16). After reviewing the administrative record and the parties' memoranda, this Court DENIES Plaintiff's Motion for Summary Judgment or Remand (#11).

I. Background

In March 2007, Plaintiff filed an application for social security benefits alleging disability beginning February 15, 2005. (R. 61.) The Social Security Administration denied her application initially and on reconsideration. At Plaintiff's request, the ALJ held a video hearing in January 2008. An attorney represented Plaintiff at the hearing. Plaintiff and Thomas Dunleavy, a vocational expert (hereinafter "VE"), testified at the hearing. In January 2008, the ALJ issued a decision denying Plaintiff benefits on the basis that Plaintiff could perform her past relevant work, or, alternatively, she could perform a significant number of jobs in the economy and, therefore, was not disabled. In September 2008, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. In November 2008, Plaintiff appealed this decision by filing a complaint with this Court pursuant to 42 U.S.C. § 405(g). Plaintiff seeks a reversal of this decision. In the alternative, she asks the Court to remand the case for reconsideration.

The parties have consented to the exercise of federal jurisdiction by a United States Magistrate Judge.

Plaintiff testified at the hearing that she last worked in 2003 for a temporary agency for three months. (R. 389-90.) The longest she has worked in the past fifteen years was as a certified nurse's assistant for five months. (R. 390.)

At the time of the hearing, Plaintiff weighed 327 pounds and was 5'6" tall. (R. 388.) Plaintiff testified that she has diabetes and currently takes diabetes medication, although she has never taken insulin. (R. 390.) She also takes medication for high blood pressure and high cholesterol. (R. 390.) Her psoriasis flares up when the weather changes, and she treats it with a prescription cream. (R. 390, 393.) Plaintiff testified that she uses Albuterol twice a week and Proventil four times a day for asthma. (R. 391.) She was hospitalized once, in November 2006, for an asthma-related breathing problem. (R. 391.) She also testified that she has problems with nerves and numbness in her feet and legs. (R. 394.) She takes Lyrica daily for her nerves, and she testified that it helped at first but no longer does. (R. 394-95.) Plaintiff also testified that she has arthritis in her back, knees, and elbows. (R. 395.) She had previously taken Flexeril and Tylenol Arthritis to treat her arthritis. (R. 395.)

Plaintiff testified that she has trouble sleeping at night due to pain, and she must get up and sit. (R. 396.) She generally catnaps during the day. (R. 396.) She gets up between five a.m. and noon each day and spends six hours each day watching television and up to five hours (spread out over the course of a day) doing household activities, such as sweeping the floor or washing dishes (R. 396-97.) She does some cooking, but her husband does most of it. (R. 396-97.) Plaintiff separates the clothes for laundry, and her husband washes the clothes. (R. 397.) She and her husband share grocery shopping responsibilities, and she drives. (R. 397.) Plaintiff testified that it takes her a while to do housework. For example, sweeping the kitchen floor takes her half an hour because she has to sit before she finishes one area. (R. 397.) Plaintiff used to crochet but can no longer do it because her right hand has not functioned well since she had surgery on her right thumb and forefinger. (R. 398.) Her husband helps her bathe because it is hard for her to get into the tub on her own. (R. 400.) Plaintiff can lift ten pounds at a time, walk less than a block before needing to rest, sit for an hour at a time, and stand in one position for two minutes before needing to sit down. (R. 399.) She testified that she uses a cane that she obtained from her sister to walk. (R. 400.)

The ALJ found that Plaintiff had the following severe impairments: diabetes mellitus, high blood pressure, asthma, chronic low back pain, and psoriasis. (R. 13.) He stated that the record contained no evidence to support a finding that Plaintiff's reported hand or joint pain related to arthritis has more than a minimal effect on her ability to perform work activity.

(R. 13.)

The ALJ found that Plaintiff has the residual functional capacity (hereinafter "RFC") to perform light work with the following restrictions: no climbing ladders, ropes, or scaffolds; no more than occasional balancing, stooping, kneeling, crouching, or crawling; and no concentrated exposure to fumes, odors, dusts, gases, or poor ventilation. (R. 15.) The ALJ also found that Plaintiff's testimony about the intensity, persistence, and limiting effects of her symptoms was not entirely credible. (R. 18.)

II. Standard of Review

In reviewing an ALJ's decision, this Court does not try the case de novo or replace the ALJ's finding with the Court's own assessment of the evidence. Pugh v. Bowen, 870 F.2d 1271, 1274 (7th Cir. 1989). The findings of the Commissioner as to any fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Thus, the question before the Court is not whether a plaintiff is, in fact, disabled, but whether the evidence substantially supports the ALJ's findings. Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995). The Supreme Court has defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In other words, so long as, in light of all the evidence, reasonable minds could differ concerning whether a plaintiff is disabled, the Court must affirm the ALJ's decision denying benefits. Books v. Chater, 91 F.3d 972, 977-98 (7th Cir. 1996).

The Court gives considerable deference to the ALJ's credibility finding and will not overturn it unless the plaintiff can show that those findings are patently wrong. Urban v. ...

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