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Brown v. Astrue

July 13, 2010

MARK E. BROWN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

ORDER

This Matter is now before the Court on Plaintiff's Motion for Summary Judgment and the Commissioner's Motion to Affirm. For the reasons set forth below, Plaintiff's Motion for Summary Judgment [#12] is DENIED, and the Commissioner's Motion for Summary Affirmance [#17] is GRANTED.

BACKGROUND

Plaintiff, Mark E. Brown ("Brown"), was 49 years of age at the time of the administrative hearing (R483). He is 6'3" and weighs 250-260 pounds. (R487) He is single and lives at home with his elderly mother. (R487) He graduated from high school in a special education program and attended two different technical schools after graduation. (R318) Brown also has a history of competitive employment. (R318) He was a gas station attendant, he was involved with the "junking" of scrap metal, and he worked for several years loading newspapers for the Moline Dispatch, but has not held a job since he was laid off in 2004. (R318; R490)

Brown filed applications for Disability Insurance Benefits ("DIB") and Supplementary Security Income ("SSI") on January 27, 2006 (R109-12, 461-72), alleging an initial disability onset date of March 31, 2004 (R109). His attorney amended the onset date at the hearing before the ALJ to April 2006 (R496). Brown's DIB application was denied on May 26, 2006 (R67-70). His SSI application was denied initially on February 21, 2006, and upon reconsideration on August 9, 2006 (R67-70, 474-75). He requested a hearing by an Administrative Law Judge ("ALJ"), which was received on August 29, 2006 (R66). A hearing was held on April 26, 2007, before Administrative Law Judge John Wood (R480-523). Appearing at the hearing were Mr. Brown, his attorney, and George Paprocki, a vocational expert (Id.). On November 29, 2007, the ALJ issued his decision denying Brown's claim for disability (R12-23).

Brown currently lives at home with his elderly mother (R487). He is independent in most activities of daily living, although his brother assists him with his financial management (R420). Brown worked for several years as a dockworker unloading trucks until he was fired for an onthe-job incident (R420). He cooks, eats five meals a day, performs household tasks including laundry and yard work, drives, fixes things, plays games and engages in hobbies (R420).

The record shows that since 2002, Brown has been tested and examined by several doctors, and several more experts have reviewed the record and given their opinion as to his conditions. He has shown no psychiatric problems, delusions or hallucinations, and is in good contact with reality. (R411) He has no history of alcohol or drug abuse. (R393) He was able to perform basic work functions and had a job at the Moline Dispatch newspaper for eleven years. (Id.) Brown has been diagnosed with depression and Type II diabetes (since 2006) and by 2007 he was taking several medications including Metformin, Amaryl, Zoloft and Lantus. (R428-39) His reading, writing and spelling scores were all low. (R421) His strengths include his visuospatial abilities (i.e. his ability to accurately measure distance, volume and space) and his performance abilities. (R422) His memory scores ranged from average to severely impaired. (421) Several doctors also made mention of his inability to deal with criticism. (R358)

More specifically, Brown scored a verbal I.Q. of 66, performance I.Q. of 100, and an overall I.Q. of 79 in 2002. (R319) His reading and spelling scores place him at a first grade level. (R419) He is moderately limited in his ability to understand and remember detailed instructions and has problems maintaining concentration and attention for extended periods. (R320-321; 348; 370). According to several doctors, he can perform unskilled labor. (Id.) He had no noted physical limitations and was able to lift 50 pounds when he worked. (R392-94; 510) In later reviews he was noted as having reduced concentration, task completion, and memory. (R395-412) He does have the ability to understand, remember and carry out more detailed instructions with some concrete variable, make independent decisions, and maintain alertness and attention to details in a work setting which does not require reading and writing (Id.)

During the administrative hearing, Brown and a vocational expert ("VE") testified. The ALJ presented the VE with the following hypothetical:

For the first hypothetical, assume no exertional -- well, the past work the same as the claimant's and no exertional limitations. But the first hypothetical would be say someone can only have occasional interaction with public, co-workers and supervisors, would someone be able to do this, this job? (R512). VE Paprocki testified that a person in this situation would be able to do the Brown's previous job loading and unloading trucks. (Id.) The ALJ added additional limitations to the hypothetical, such as occasional interaction with the public and the ability to perform only simple repetitive tasks, to determine whether that person would be able to perform his previous job. (Id.) It was not until the ALJ added the requirement that the hypothetical person avoid concentrated exposure to unprotected heights and hazardous machinery that the VE stated that the person would no longer be able to perform the job (R514). The ALJ then asked the VE whether, even with the limitation that the hypothetical person avoid hazardous machinery, there were other jobs that the person could perform (Id.). The VE concluded that the person could perform jobs such as dishwasher, kitchen helper and laundry worker (R514-15). There are jobs that the person could perform even if the exertional level was reduced to light (R515). These jobs include electronics worker, light packaging work or light attendant (Id.).

In his decision denying Brown disability benefits, the ALJ concluded that he meets the insured status requirements of the Social Security Act through September 30, 2009 (R17). The ALJ also determined that Brown has a learning disability, depression, borderline mental functioning and diabetes, the combination of which is severe. (R17) However, the ALJ concluded that he did not meet the criteria of 12.05(C)*fn1, having determined that Brown's low

I.Q. scores were a function of his learning disorder and that he had a performance I.Q. of 100. Additionally, he has been employed for several years and engages in a variety of activities of daily living (R18). Also, the ALJ found that Brown has the residual functional capacity ("RFC") to perform work activity, except he needs to avoid concentrated exposure to hazards and all environmental factors. Further, the ALJ found that Brown is limited to the performance of simple and repetitive tasks with occasional interaction with the public, co-workers, and supervisors and the flexibility to meet the competitive production standards of an employer on a per shift rather than per hour basis (R18). The ALJ determined that, based on Brown's RFC he is unable to perform any past relevant work (R22). The ALJ concluded that he could handle a checkbook and his social security disability benefits, even though in 2002 Dr. Dhahens concluded otherwise. (R319) Finally, the ALJ concluded that considering Brown's age, education, work experience and RFC, there are jobs that exist in significant numbers in the national economy that the claimant can perform (Id.). As a result, the ALJ found Brown not to be disabled for the purposes of his application for DIB and SSI (Id.).

Brown submitted a Request for Review of Hearing Decision. (R7) On June 2, 2009, the Appeals Council declined review of his claim, and the ALJ's decision became the final decision of the Commissioner. (R7-9) This appeal followed. The Court has ...


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