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Spain v. Astrue

July 13, 2010


The opinion of the court was delivered by: Michael M. Mihm United States District Judge


This matter is now before the Court on Plaintiff's Motion for Summary Reversal and the Commissioner's Motion to Affirm. For the reasons set forth below, Plaintiff's Motion for Summary Reversal [#13] is GRANTED, and the Commissioner's Motion to Affirm [#15] is DENIED.


Plaintiff, Cindy Spain ("Spain"), was 48 years' old at the time of her administrative hearing. (R28) She is 5'7" and weighs approximately 171 pounds. (R38) She is not married and has two adult children. (R39) She lives on her own in a second story apartment; there are 12 stairs leading up to her apartment. (R40) Spain drove herself to the hearing, taking two breaks during the hour long drive. (R40-41) She has a high school diploma and can read and write in the English language. (R42) Spain last worked as a cashier/stocker for the Dollar Store in 2004-2005. Id. In the past, she was employed as a bartender, short-order cook, waitress, and deli worker. (R62)

Spain underwent a partial mastectomy and lymph node dissection in September 2002 for breast cancer; in November 2006, her physician observed no evidence of metastatic disease in her chest. (R20) She was involved in a car accident in 2003 in which both of her ankles were broken. (R17)

On May 31, 2005, Spain applied for supplemental security income ("SSI"), alleging disability that began on September 25, 2002. Her application was denied both initially and on reconsideration. (R72-76, R82-85) Spain requested a hearing before an administrative law judge ("ALJ"). (R86) A hearing was held before ALJ David Thompson on November 29, 2007, at which Spain, who was represented by counsel, and vocational expert ("VE") James Reagans appeared and gave testimony. (R34)

At the time of the hearing, Spain was taking Vicodin for back and leg pain, Zoloft for anxiety and depression, Fosamax to build bone strength, and Amidrex to help build her immune system. (R44) However, she stated that she did not believe they were doing the job the doctors wanted them to do. Id. She elaborated that the medications do relieve the pain, and she doesn't want to go off the Zoloft; the other two medications she has to take because of her cancer that she had back in 2005. (R45) The medications make her tired, and the Amidrex makes her joints sore, causes problems with using her hands, and leaves her feeling nauseous for about an hour after taking it. (R45, R59-60)

Spain testified that her back causes her pain to stand or even sit; she has to move around after about 20-30 minutes. (R46, R50) She can walk no more than a half block to a block before needing to sit down. (R50-51) Standing also causes swelling and throbbing in her foot, and she has to lie down and elevate it to get relief. (R46, R59-60) She cannot fully raise her right arm as a result of scar tissue, but can lift a gallon of milk and push/pull to open doors and drawers. (R47, R51-53) Spain stated that she cannot feel her right foot and really shouldn't be driving, despite the fact that she drove herself to the hearing. (R47-48) She cannot go for walks anymore because of her pain, should not climb stairs, does not kneel, and has trouble getting back up after bending. (R48) Although she has no hobbies that she is still able to enjoy, she is able to walk her dog. (R54) She is able to feed, bathe, and dress herself, as well as care for her personal hygiene. (R55) As a result of her depression, Spain commented that she is not very social and stays at home because going out makes her anxious. (R49) She does walk across the hall to visit her neighbor once or twice a week or occasionally visits her daughter. (R55-56)

Spain testified that on a typical day, she reads the newspaper in the morning, watches about six hours of television, prepares her own meals, and makes her own bed. (R56-57) She lays down for about four hours during the day and goes to bed most nights by 7:00pm because she is tired. (R58) Her daughters do the laundry and housekeeping for her, as well as help her go grocery shopping. (R57)

The ALJ posed a hypothetical question to the VE:

Q: I'd like you to assume we have an individual the same age, education, and experience as the Claimant. The individual is able to lift ten pounds frequently, 20 pounds occasionally, able to stand for at least two hours in an eight-hour day, sit for six hours in an eight-hour day, unlimited pushing and pulling, capable of frequent postural activities except for occasional balancing and crouching, and no ropes, ladders, or scaffolds. How would these restrictions affect the performance of Claimant's past relevant work?

A: The past relevant work, Your Honor, would be precluded.

Q Would there be other jobs in the economy such an individual could perform?

A: Yes, sir. There would be some jobs. I think there would be, for example, there would be unskilled cashiering jobs. And I'm referring to Cashier II, 211.462... 010.

Q: How many of those jobs are in the economy?

A: Well, no, I want to make a clarification. That specific title is considered light work, but I think there would be, in my estimation, in Illinois, approximately 2,500 that would exist with the -- basically need to sit -- well, would need to sit for the majority of the workday, as you've described in the hypothetical. I think there would be certain packaging jobs, Your Honor, unskilled packaging jobs such as 559.687-014. Currently in Illinois, about 1,000 of those will exist. One other example would be unskilled assembly work, such as 713.687-018. And there are currently in Illinois, about 3,068 of persons doing that type of work. I think the other example that I could give you, Your Honor, would be unskilled telemarketing or telephone solicitor. That one is 299... 357-014. Again to clarify a distinction between the DOT and my testimony, that's considered low end semi-skilled, SVP-3. However, in this region it is unskilled work and could be learned within 30 days. Presently in Illinois, there are probably right at 16,000 -- slightly above that, 16,019, to be exact.

Q: Okay. Now these jobs that you've given me, is this a representative sampling or is this an exhaustive list?

A: Representative, Your Honor.

Q: Okay. I'd like to change the hypothetical to a straight sedentary with a sit/stand option, still -- let's put in occasional postural limitations, still no ropes, ladders, or scaffolds. Okay. A: Are you changing the lifting then to a straight sedentary? Q: Lifting is to a straight sedentary, yes.

A: All right, sir.

Q: How would these restrictions affect the jobs you just gave me?

A: I don't think that those restrictions would change my testimony about ...

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