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Brown v. Astrue

September 27, 2010

JEFFREY L. BROWN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Charles H. Evans, U.S. Magistrate Judge

OPINION

Plaintiff Jeffrey L. Brown appeals from the denial of his application for Social Security Disability Insurance Benefits and Supplemental Security Income (collectively Disability Benefits). 42 U.S.C. §§ 416(I), 423, 1382c. The parties consented, pursuant to 28 U.S.C. § 636©, to have this matter proceed before this Court. Consent to Proceed Before a United States Magistrate Judge, and Order of Reference (d/e 9). This appeal is brought pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, the decision of the Defendant Commissioner of Social Security is affirmed.

STATEMENT OF FACTS

Brown was born on November 29, 1958. He completed the eleventh grade in school. Answer (d/e 11), attached Certified Transcript of Record of Proceedings ®.), at 60, 148. Brown previously worked as a construction worker and carpet layer. R. 145, 150, 183. On June 6, 2005, Brown went to the emergency room at Memorial Medical Center in Springfield, Illinois (Memorial), for treatment for a fractured rib as a result of a fall. R. 216-17, 225. On June 16, 2005, he went to see David D. Newton, M.D., for continued pain in his ribs after the fall. Dr. Newton told Brown to remain off work. R. 240. Dr. Newton released Brown to work on July 5, 2005. R. 238.

On August 3, 2005, Brown went to Memorial for headache, lack of coordination, unsteady gait, nausea, dizziness, weakness, and cognitive and behavioral changes. A head CT scan identified a subacute cerebellar infarct, indicating that Brown had suffered a stroke. Brown was diagnosed with a cerebrovascular accident and hypertension. The doctors prescribed ToprolXL, Plavix, and aspirin. R. 202, 205-06, 208, 210-12.

Brown went to see Dr. Newton on August 15, 2005. Brown reported that he had a few spills since the stroke, and had not yet regained his balance. Brown reported an episode four days earlier when he woke up with a headache and severe dizziness. R. 235-37. Upon examination, Dr. Newton observed that Brown had difficulty tandem walking, difficulty turning around rapidly as he walked, and a positive Romberg sign. R. 234-237. A positive Romberg sign means that a person loses his sense of balance when he stands with his feet together and his eyes closed. Stedman's Medical Dictionary (28th ed. 2006), at 1771.

Brown filed his application for disability benefits on October 18, 2005. He alleged that his onset date was June 6, 2005. He alleged that he was disabled due to the residual effects of cerebrovascular disease, essential hypertension, and stroke. R. 14, 60, 120-26.

On December 14, 2005, Brown was examined by Vittal V. Chapa, M.D., at the Commissioner's request. R. 244-50. Brown reported dizziness, loss of balance, and double vision. He also reported having headaches two or three times a week, lasting up to ten hours with nausea and vomiting. Upon examination, Dr. Chapa observed that Brown had a broad-based, ataxic gait, was unable to walk on his toes or heels, and could not perform tandem walking. R. 245-46. Dr. Chapa also observed a positive Romberg sign. Dr. Chapa found good hand grip bilaterally and the ability to perform fine and gross manipulations. Dr. Chapa diagnosed Brown with post cerebrovascular accident and hypertension. R. 246.

On December 22, 2005, state agency physician Charles Kenney, M.D., prepared a Residual Functional Capacity assessment. Dr. Kenney opined that Brown could perform light work with occasional use of ladders, ropes, and scaffolds, and with no concentrated exposure to hazards. R. 251-55. Dr. Kenney noted that there was no examining or treating physician source in the file. R. 257.

Brown contacted Dr. Newton again on June 31, 2006.*fn1 Brown told Dr. Newton that he could not tolerate heat and humidity. R. 261. On July 28, 2006, Brown went to Memorial's Rural Health Center. R. 262-63. Brown complained of migraine headaches triggered by heat and reading. Brown stated that he never had migraines before he suffered the stroke. He stated that the last migraine involved photophobia and nausea. R. 262. Brown was prescribed Tramodol. R. 263.

The Administrative Law Judge (ALJ) conducted an evidentiary hearing on September 3, 2008. R. 25-59. Brown was represented by counsel at the hearing. Brown and his daughter Amanda Brown testified, as well as vocational expert Ronald Malik. R. 26; see R. 96. Brown initially testified that he believed he had a stroke when he fell on June 6, 2005. R. 30. He was working for a bricklayer at the time. Brown testified that he performed construction work on and off since he was 16 years old. R. 30. Brown later agreed that the stroke occurred in August 2005. R. 37.

Brown testified that at the time of the hearing he was working at a grain elevator. He worked from 7:30 a.m. to 4:30 p.m. five days a week, although the employer sometime sent him home if there was no work to do. He was still paid for the full day even if he was sent home. R. 30. Brown described his work as follows, "I, basically I tell a truck when to stop and I push a button." R. 30. The truck then unloads grain into the correct bin.

R. 40. The trucks came anywhere from once an hour to five times an hour.

R. 47. He was paid $10.50 per hour. Brown testified that he worked at the elevator during the harvest for the last three years. R. 30-31. He testified that he usually worked from the last week in August until the first week in October. R. 31. He testified at the hearing that he started working this year at the end of July 2008. R. 38.

Brown testified that he was related to everyone who worked at the elevator. He said that "they pretty much cover my butt on stuff I'm supposed to do and stuff I can't do." R. 39. Brown testified, that, for example, he was supposed to clean out the bins, but his relatives did that for him. He said that he is allowed to lie down on a cot at the elevator as needed. R. 40. He testified that he could not keep the job if his relatives did not cover for him. R. 41.

Brown testified that he broke his ribs when he fell off a scaffold. Brown also testified that he suffered from glaucoma and double vision. The double vision was corrected with glasses. R. 31.

Brown testified that he still suffered from problems as a result of the stroke in 2005. He stated that he had no balance and no hand-to-eye coordination. He also said, "Whenever I get a little bit hot from the heat, I'll get, I'll get sick, and I'll lose, lose my balance from that. Just all kinds of problems." R. 31. Brown testified that he did not go to see the doctor anymore because he had no insurance and he owed the doctor too much money. R. 37-38.

The ALJ asked Brown if he had any other problems. Brown testified that his back hurt from falling down regularly due to a lack of balance. R. 32. Brown also stated that his knees hurt from ...


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