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Blackmon v. Astrue

August 4, 2010

STACEY F. BLACKMON, PLAINTIFF,
v.
MICHAEL J. ASTRUE COMMISSIONER OF SOCIAL SECURITY, DEFENDANT,



The opinion of the court was delivered by: P. Michael Mahoney, Magistrate Judge United States District Court

Hon. P. Michael Mahoney U.S. Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. Introduction

Stacey F. Blackmon seeks judicial review of the Social Security Administration Commissioner's decision to deny his applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act and Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. See 42 U.S.C. § 405(g). This matter is before the magistrate judge pursuant to the consent of both parties, filed on December 10, 2008. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

On February 22, 2006, Claimant filed applications for DIB and SSI. (Tr. 126--33.) Claimant alleges a disability onset date of February 14, 2006 for both DIB and SSI. (Tr. 41, 126--31.) Claimant's applications were denied on May 3, 2006. On July 10, 2006, Claimant filed a timely Request for Hearing. (Tr. 74.) On October 30th 2007, Claimant appeared and testified at a hearing before Administrative Law Judge ("ALJ") Cynthia Bretthauer in Evanston, Illinois. (Tr. 7--40.) Claimant was represented by William R. Bue. (Tr. 9.) At the October 30, 2007 hearing, James Radke appeared and testified as the Vocational Expert ("VE"). (Tr. 7.)

On November 28, 2007, the ALJ found that Claimant was not disabled and denied Claimant's applications in turn. (Tr. 48--59.) On December 27, 2007, Claimant submitted a Request for Review along with supporting evidence to the Appeals Council. (Tr. 6.) The Appeals Council denied Claimant's Request for Review on May 30, 2008. (Tr. 1--5.) Because the Appeals Council denied Claimant's application, the ALJ's decision is considered a final decision of the Commissioner. (Tr. 1--5.) Claimant filed his complaint in federal district court seeking judicial review under 42. U.S.C. §§ 405(g), 1383(c)(3).

III. Background

Claimant was born on August 6, 1954, making him 51 years old on the alleged onset date of his disabilities and 53 years old at the time of his ALJ hearing. (Tr. 129.) Claimant is 5'10" and weighs approximately 260 pounds. (Tr. 130, 146.) The extent of Claimant's educational background includes his successful completion of high school. (Tr. 137--41, 148, 153.)

At the ALJ hearing, Claimant testified that a typical day for him involves walking outside on his porch and around the block, while remaining in his home for the remainder of the day. (Tr. 24.) Claimant testified that he watches a lot of television and that he has a magazine he reads while at home. (Tr. 27.) If the Claimant has any errands that need to be completed, he has somebody else take care of them for him; usually his next-door neighbor runs his errands for him. (Tr. 24.) Claimant testified that he prepares meals including oatmeal and sandwiches. (Tr. 24.) Claimant also testified that he washes his own dishes. (Tr. 25.) Claimant stated that he can wash and dress himself without any assistance. (Tr. 24--25.) He attends church every Sunday from 11:00 AM until 2:00 PM. (Tr. 26.) However, Claimant has to get up and stretch in order to stay for the entire time. (Tr. 32--34.) Claimant also testified that he mows the lawn twice a week. (Tr. 34--35.)

Claimant testified that he experiences back pain and his legs begin to swell up with fluid after sitting for too long. (Tr. 21.) To alleviate the pain, Claimant elevates his legs approximately six inches off the floor roughly three times per day. (Tr. 21.) Claimant further testified that he experiences shortness of breath when moving around. (Tr. 22.) He is capable of walking a mile or two but needs to take a break every 15 minutes. (Tr. 23.) Claimant also testified that he can lift five or six pounds, and that he can probably lift 15 pounds without straining. (Tr. 24.)

Claimant previously held employment at a nursing home for 24 years as a food service worker. (Tr. 148.) Claimant also worked as a cook at Our Lady of Victory Foundation Provina from 1995--1996, and as a Supervisor Cook at North Rockford Convalescent Home from 1999--2000. (Tr. 15, 139--140.) Claimant worked as a kitchen supervisor for Lutheran Social Services and Job Corps from 1994--1995. (Tr. 16, 138--139.) Moreover, Claimant has held jobs as a laborer, shipping and receiving clerk, and dishwasher. (Tr. 14--16.) Claimant testified that he could not perform any of his previous jobs as a result of his heart, asthma and back problems. (Tr. 16.) The last time Claimant attempted to work was at Black Hawk Learning Connection; Claimant testified that he was fired from Blackhawk because he could not wash dishes after he became sick. (Tr. 14.) The record indicates that Claimant was employed by Blackhawk from October 2006 until March 2007. (Tr. 213)

IV. Medical Evidence

Claimant underwent an echocardiogram*fn1 procedure on October 14, 2003 at SwedishAmerican Health System. (Tr. 54.) The results indicated Claimant possessed a severely dilated left ventricular dysfunction with preserved right ventricular function consistent with end stage hypertensive heart disease, a dilated left atrium, and mild to moderate pulmonary hypertension. (Tr. 233.)

On December 15, 2003, cardiologist Jagdeep Sabharwal, M.D., evaluated Claimant. (Tr. 239--240.) Dr. Sabharwal found Claimant to have a dilated cardiomyopathy with a left ventricular ejection fraction of approximately 15%. (Tr. 239--40.) At this meeting, Claimant denied any chest discomfort, shortness of breath, orthopnea, paroxysmal nocturnal dyspnea ("PND"), palpitations, dizziness or any syncopal episodes. (Tr. 239.) However, Claimant indicated that he experiences shortness of breath after walking one block. (Tr. 239.)

On January 26, 2004, Claimant went in for a follow-up evaluation with Dr. Sabharwal. (Tr. 241.) Dr. Sabharwal noted that Claimant did not indicate he was experiencing increased shortness of breath, orthopnea or PND. (Tr. 241.) Claimant had chronic lower extremity swelling that gradually became worse throughout the day. (Tr. 241.) The swelling was generally relieved when Claimant elevated his legs. (Tr. 241.) As of January 26, 2004 Claimant was taking Advair*fn2 , Albuterol Sulfate, Coreg*fn3 , Digoxin*fn4 , Doc-Q-Lace Sodium*fn5 , K-Dur*fn6 , Lasix*fn7 , and Lisinopril*fn8 . (Tr. 241.)

On March 9, 2004 and September 13, 2004, Claimant went in for follow-up evaluations with Dr. Sabharwal. (Tr. 242--43.) At these meetings, Dr. Sabharwal noted that Claimant denied any increased shortness of breath, orthopnea, PND, chest discomfort, or any significant limitations in his daily activities. (Tr. 242--43.) Moreover, Dr. Sabharwal recommended that Claimant continue with the present medical regime, noting that Claimant was doing quite well on his current medical therapy and that he was not in any significant congestive heart failure. (Tr. 242--43.) On September 21, 2004, Claimant underwent an echocardiogram at Rockford Cardiology Associates. (Tr. 249.) The echocardiogram revealed Claimant had a severely depressed left ventricular systolic function with a left ventricular ejection fraction of 20--25% as well as mild aortic insufficiency. (Tr. 249.)

On February 27, 2005, Claimant participated in a sleep study that confirmed a previously diagnosed condition of sleep apnea. (Tr. 250.) At the sleep study, Claimant denied any chest pain, shortness of breath, orthopnea, abdominal pain, heartburn, and tingling or numbness of the extremities. (Tr. 250.)

On September 29, 2005, Claimant went in for a follow-up with Dr. Sabharwal. (Tr. 244.) Claimant did not report experiencing any increased shortness of breath, orthopnea or PND. (Tr. 244.) Additionally, Dr. Sabharwal did not find Claimant with any symptoms or complaints of chest discomfort or major limitations in his daily activities. (Tr. 244.) Dr. Sabharwal instructed Claimant to continue under the current medical regime. (Tr. 244.)

On October 17, 2005, Claimant went to see Daniel Herdeman, M.D., for the purpose of assessing whether Claimant was an appropriate candidate for a non-thoracotomy defibrillator. (Tr. 245.) Dr. Herdeman determined that Claimant was an appropriate candidate after discovering evidence indicating Claimant had a potential risk for sudden cardiac death and heart failure. (Tr. 245.) Dr. Herdeman determined that Claimant was categorized as a functional class I to II. (Tr. 245.)

On December 19, 2005, Mark Bernstein, M.D., evaluated Claimant's myocardial function. (Tr. 231.) The evaluation revealed that Claimant had normal wall motion and an ejection fraction of 59%. (Tr. 231.) On December 23, 2005, Claimant had a chest x-ray taken; the results showed a stable chest with mild prominence of the left ventricle and mildly atherosclerotic aorta. (Tr. 235.) On December 28, 2005, Claimant underwent surgery of an Implantable Cardiac Defibrillator ("ICD")*fn9 (also known as a pacemaker). (Tr. 236--238, 255.)

On January 6, 2006, Claimant went in for a follow-up with Tammy J. Boxleitner, CNS. (Tr. 255.) The meeting notes indicate Claimant was doing well. (Tr. 255.) However, Claimant was experiencing some left shoulder discomfort for which he took Tylenol. (Tr. 255.) Claimant denied any dizziness, chest pain, cough, swelling in his lower extremities or bloating in his abdomen, and his blood pressure was well controlled at 120/86. (Tr. 255.)

On February 14, 2006, Claimant went to Heart Management Clinic for a follow-up evaluation. (Tr. 252.) Claimant stated that part of his reason for attending was to request a note allowing him to take short breaks throughout the workday. (Tr. 252.) Jane Steffen, N.P., wrote in her report that Claimant's blood pressure was well within control and that Claimant denied any orthopnea, PND, or dyspnea, cough, heart palpitations, chest pain or pressure, jaw or arm discomfort, dizziness, and peripheral edema. (Tr. 252.) Nurse Steffen also recorded that Claimant reported being so exhausted after work that he had no energy to exercise. (Tr. 252.) The report listed the state of Claimant's asthma to be stable. (Tr. 253.)

On April 6, 2006, a state agency physician, George Andrews, M.D., performed a physical residual functional capacity assessment upon Claimant. (Tr. 258--64.) Dr. Andrews checked the boxes indicating Claimant could occasionally lift or carry 20 pounds, frequently lift 10 pounds, stand, walk, or sit with normal breaks for about six hours in an eight hour day, and that Claimant can push or pull with both his lower and upper extremities. (Tr. 259.) Additionally, Dr. Andrews recorded that Claimant had no postural, manipulative, visual, communicative or environmental limitations. (Tr. 260--62.)

On April 17, 2006, Claimant went for a follow-up evaluation with Nurse Steffen. (Tr. 309.) Nurse Steffen wrote in her report that the staff would like to see Claimant more active and start walking and that there was definitely room for improvement in Claimant's diet as he had been eating improperly. (Tr. 309.) Nurse Steffen also noted that Claimant's blood pressure was 112/86 without his morning medication. (Tr. 309.) Claimant conveyed that he does experience some dyspnea with moderate activity. (Tr. 309.) Claimant denied any cough, heart palpitations, chest pain or pressure, jaw or arm discomfort, loss of appetite, nausea, abdominal bloating or pain, dizziness, fatigue, and any peripheral edema. (Tr. 310.)

On June 8, 2006, Claimant indicated that his asthma was acting up; as a result, he was given prescriptions for Flovent, Singulair, and Albuterol. (Tr. 266.) On June 12, 2006, Claimant went for a follow-up visit with Tammy J. Boxleitner, CNS. (Tr. 306.) Nurse Boxleitner recorded that Claimant's blood pressure was well controlled and that he appeared to be active. (Tr. 306). The nurse also noted that Claimant "[appeared] to be doing well and [had] been stable over the past two months." (Tr. 306.) At the follow-up evaluation, Claimant stated that even though he continues to have shortness of breath with activity, his overall energy level is fine. (Tr. 307.) Claimant also stated that he walks approximately one mile daily and performs yard and housework without fatigue limiting these activities. (Tr. 307.) Nurse Steffen noted that Claimant describes some shortness of breath with exertion and that Claimant remains classified as a Heart Class Functional II-C. (Tr. 307.)

In August 2006, Claimant visited his primary care physician, Abbas Al-Saraf, M.D., who diagnosed Claimant with non-ischemic cardiomyopathy. (Tr. 349.) Dr. Al-Saraf wrote in his notes that Claimant was capable of performing low-exercise and low-duty jobs. (Tr. 349.)

On October 2, 2006, Nurse Boxleitner indicated, in a follow-up report, that Claimant was doing exceptionally well and that his hypertension, renal function, and asthma were all stable. (Tr. 298.) The report also showed that Nurse Boxleitner did not schedule any follow-up evaluations with the heart clinic stating, "there may be an opportunity to discharge the patient from the clinic." (Tr. 299.)

On December 14, 2006, Claimant met with Dr. Sabharwal for a follow-up visit. (Tr. 295.) Dr. Sabharwal noted, "clinically he is well compensated and not having any significant chest discomfort." (Tr. 295--97.) Dr. Sabharwal noted no significant limitations in Claimant's daily activities. (Tr. 295--97.) "As a matter of fact, he [wished] to go back to work and [requested] a written note from our clinic." (Tr. 297.) Dr. Sabharwal recorded his impression of Claimant's non-ischemic dilated cardiomyopathy as well compensated. (Tr. 295.) Dr. Sabharwal opined that Claimant could return to work because his cardiac condition was not a significant limiting factor. (Tr. 295.)

On January 5, 2007, Claimant was admitted to the emergency room as a result of left arm swelling. (Tr. 355.) Claimant was discharged with instructions to take Bactrim DS*fn10 , to elevate his arm, and to follow-up with his primary care doctor. (Tr. 356.) On January 7, 2007, Claimant went to a follow-up with Dr. Al-Ashraf who prescribed him Keflex and instructed Claimant to go to the emergency room if he felt pain, swelling, or numbness. (Tr. 345.) On January 9, 2007, Claimant was treated for left upper arm extremity cellulitis*fn11 . (Tr. 342.) On January 18, 2007, Claimant went to his primary care physician, Dr. Al-Ashraf, for a left-arm cellulitis follow-up. (Tr. 342.) In his progress report, Dr. Al-Ashraf suggested that Claimant had a blockage in his ...


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