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Hurley v. Astrue

May 19, 2010


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


Claimant Maryanne Hurley ("Ms. Hurley"), o/b/o Michael Hurley, deceased, ("Mr. Hurley") 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 Mr. Hurley's application for Disability Insurance Benefits ("DIB"). Ms. Hurley raises the following issues: (1) whether the Administrative Law Judge ("ALJ") erred in failing to find a closed period of disability lasting longer than twelve months; (2) whether the ALJ failed to properly weigh the evidence from Mr. Hurley's treating physician; (3) whether the ALJ's credibility finding was "patently wrong;" and (4) whether the ALJ properly considered Mr. Hurley's limitations due to asthma. The Commissioner raises the issue of whether Mr. Hurley's application for DIB was untimely, thus precluding any benefits. For the following reasons, the Court finds that Mr. Hurley's application was untimely and therefore affirms the ALJ's decision, denies Claimant's request to reverse or remand the decision of the Commissioner, and grants the Commissioner's motion for summary judgment.


A. Procedural History

Mr. Hurley initially applied for DIB on March 20, 2007, alleging a disability onset date of August 9, 2003. R. 102-11, 134, 285. Mr. Hurley was 52 years old and employed as a Cable Installer on the alleged onset date, when he injured his lower back and shoulder while picking up a ladder. R. 135, 285. Mr. Hurley cited disability due to lower back pain, high blood pressure, diabetes, asthma, leg pain, high cholesterol, degenerative arthritis, shortness of breath, and chronic leg and back pain. R. 134. The Social Security Administration ("SSA") denied his application on May 24, 2007. R. 50-53. Mr. Hurley then filed a request for reconsideration, which was denied on August 24, 2007. R. 57-59. Thereafter, Mr. Hurley requested a hearing before an ALJ. R. 60-61. Mr. Hurley died on March 7, 2008 in a car accident, and his widow, Ms. Hurley, filed substitution of party forms. R. 47-49, 122-23.

On October 20, 2008, Administrative Law Judge Mary Ann Poulose ("ALJ") presided over a hearing at which Ms. Hurley appeared with her attorney, Christopher Bode, and testified. R. 26-44. In addition to Ms. Hurley, Edward Cadell, a vocational expert, also testified. Id. On February 3, 2009, the ALJ issued a decision finding Mr. Hurley was not disabled under the Social Security Act. R. 13-25. Specifically, the ALJ found Mr. Hurley had "the residual functional capacity to perform a medium work as defined in 20 CFR 404.1567(c)," subject to certain limitations, and that "there were jobs that existed in significant numbers in the national economy that the claimant could have performed." R. 20, 23.

Ms. Hurley then filed for review of the ALJ's decision to the Appeals Council, which denied Ms. Hurley's request on June 20, 2009. R. 1-3. The ALJ's decision therefore became the final decision of the Commissioner. Ms. Hurley subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony -- October 20, 2008

1. Maryanne Hurley

Ms. Hurley testified at the hearing about her observations of Mr. Hurley's condition. Ms. Hurley reported that Mr. Hurley made some attempts to work in 2005 and early 2006, although she could not remember the exact dates. R. 30-33. Mr. Hurley worked in security for a brief period as well as part-time supervising the rehabbing of houses. R. 30-31, 34. However, he could not sustain this work for very long and would often come home early. R. 32, 35.

Ms. Hurley further testified that Mr. Hurley's back pain was his biggest limitation. R. 35. He had difficulty getting out of bed in the morning due to back pain and arthritis in his legs. R. 36. Ms. Hurley reported that following back surgery in June 2004, Mr. Hurley's radiating pain ceased, but he continued to experience soreness. R. 35. Ms. Hurley also reported that Mr. Hurley experienced lightheadedness due to diabetes and needed to lie down frequently. R. 34. He used his inhaler for asthma quite often throughout the day. R. 36.

When asked about Mr. Hurley's daily routine, Ms. Hurley responded that he slept a lot and took various medications, including pain medications. R. 34. Mr. Hurley sometimes watched the Hurleys' grandson for short periods. Id. He helped Ms. Hurley "a little" with light cleaning around the house, but following the back surgery he was not able to do any of the yard work he had previously done. R. 37-38.

2. Edward Cadell -- Vocational Expert ("VE")

Edward Cadell testified as a Vocational Expert at the hearing. R. 39. The VE noted that Mr. Hurley's past work as a laborer was unskilled at a heavy physical tolerance level, his past supervisory work with laborers was semiskilled at a heavy physical tolerance level, and his past work as maintenance worker was unskilled at a medium physical tolerance level. R. 40.

The ALJ presented the VE with a hypothetical person based on Mr. Hurley's age and past work experience who could sit for four hours a day, stand for four hours a day, needs to change positions every hour, and is limited to lifting 40 pounds maximum and 25 pounds frequently. R. 40. The VE opined that the hypothetical individual could perform work at the light physical tolerance level. Id. The VE identified several titles the hypothetical individual could perform, consistent with those listed in the Dictionary of Occupational Titles ("DOT"), including assembler (3,600 positions in the Chicago metropolitan region), hand packer (4,200 positions), and hand sorter (1,800 positions). R. 41.

The ALJ then asked whether the hypothetical individual would still be employable if he had to take breaks in addition to regularly scheduled breaks of ten minutes every two hours. Id. The VE opined such a person would not be employable. Id.

C. Medical Evidence

1. Mr. Hurley's Statements

On a disability report supporting his March 20, 2007 initial application for benefits, Mr. Hurley reported that he experienced chronic pain, the inability to stand, sit, or walk for long periods, shortness of breath, and numbness in his legs. R. 134. He noted he took numerous medications, including Albuterol for asthma, Avandia, Glempride, and Metformin for Diabetes, Hydrododin for pain, Hyzarr for HBP, and Lipitor for cholesterol. R. 139. Mr. Hurley's highest level of education completed was 11th grade. Id. On a disability report accompanying his August 2007 request for reconsideration, Mr. Hurley stated his back pain was noticeably worse, he experienced burning sensations in his feet and swollen feet, and he had limited mobility. R. 147. He reported taking Vicodin for pain. R. 150. On a disability report accompanying his January 2008 request for a hearing, Mr. Hurley reported his pain was worse when walking, standing, and sitting, and that he could not walk 50 feet without tremendous pain. R. 157.

2. Dr. Savio Manatt ("Dr. Manatt") - Mr. Hurley's Treating Physician

Records dating from March 10, 2003 through December 8, 2006 show Mr. Hurley regularly saw Dr. Manatt every three to four months. R. 200-57. On June 16, 2003, prior to the incident at work, Mr. Hurley saw Dr. Manatt and complained of back pain, for which Dr. Manatt administered a depo-medrol injection. R. 218. Dr. Manatt also noted diagnoses of chronic back pain and herniated disc, hypertension, diabetes mellitus, and arthritis. Id.

On August 25, 2003, Mr. Hurley complained of increased back pain following the incident at work and stated he would be seeing an orthopedic doctor. R. 217. An MRI of the lumbar spine taken on that date showed a "large protruding disc" on the right side of Mr. Hurley's lumbar spine. R. 229. Dr. Manatt prescribed Vicodin. Id. On November 12, 2003, Mr. Hurley returned for a follow-up visit complaining of stomach pain, and Dr. Manatt noted "[h]e is totally disabled at this present time from the workman problems." R. 216.

On July 27, 2004, Mr. Hurley reported he had lumbar surgery and "is doing well." R. 213. On January 7, 2005, Mr. Hurley had no complaints but noted he was following up with his orthopedic surgeon for back pain and going to "rehab." R. 211. On April 8, 2005, Dr. Manatt reported Mr. Hurley "is definitely feeling better" and was walking around better. R. 210. On July 25, 2005, Mr. Hurley reported "still having a lot of pain on the back and he is going to see the surgeon. He cannot get up early morning because of the pain . . . ." R. 209. Dr. Manatt also diagnosed Mr. Hurley with fatty infiltration of the liver. Id.

Mr. Hurley reported no further significant complaints to Dr. Manatt until April 7, 2006, when he reported pain in his neck going down to his arm. R. 206. Dr. Manatt prescribed Prednisone and Skelaxin. Id. Mr. Hurley continued to report neck pain in subsequent visits, and Dr. Manatt noted on June ...

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