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Gilbert v. Astrue

October 8, 2010


The opinion of the court was delivered by: Blanche M. Manning United States District Judge


Plaintiff Isabel Gilbert brings this action pursuant to the Social Security Act, 42 U.S.C. § 1381 ("the Act"), seeking judicial review of a final agency decision of the Commissioner of Social Security denying her application for Title II Disability Insurance Benefits ("DIB"). The parties' cross-motions for summary judgment are before the court. For the following reasons, Ms. Gilbert's motion for summary judgment is granted, the Commissioner's cross-motion for summary judgment is denied, and this case is remanded for further proceedings.

I. Background

A. Procedural History

On September 21, 2006, Ms. Gilbert applied for DIB, alleging disability due to impairments which began on December 31, 2000. Ms. Gilbert was last insured on December 31, 2005. On December 29, 2006, the Commissioner denied Ms. Gilbert's initial claim, and on April 26, 2007, the Commissioner denied Ms. Gilbert's request for reconsideration.

Ms. Gilbert requested a hearing before administrative law judge ("ALJ") Joel G. Fina, on March 11, 2008. Ms. Gilbert and vocational expert Grace Gianforte appeared and testified at the hearing. On August 21, 2008, the ALJ denied Ms. Gilbert's request for DIB, finding she was not "disabled" under the Act. Ms. Gilbert appealed to the Appeals Council, which denied relief on September 11, 2009.

Accordingly, the ALJ's decision is the Commissioner's final administrative decision. Having exhausted her administrative remedies, Ms. Gilbert now seeks judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g).

B. Facts

Ms. Gilbert was born on March 6, 1946, and was 54 years old on December 31, 2000 (the date of the alleged onset of her disability). Ms. Gilbert was 59 years old on December 31, 2005, which is the date she was last insured. Ms. Gilbert was 62 years old on the date of her hearing before the ALJ. Administrative Record ("AR") at 23.

1. Testimony During the Hearing Before the ALJ

a. Isabel Gilbert

At the administrative hearing on March 11, 2008, Ms. Gilbert testified about her educational background, work experience, and health. She completed the eighth grade at Bryant School in Harvey, Illinois, began working at age thirteen, and never obtained a GED or advanced training, certificates, or licenses. AR at 26-27. Over the years, Ms. Gilbert worked as a cook, house cleaner, and nanny. AR at 27-30.

According to Ms. Gilbert, she has been unable to work since 2000 because of her health. AR at 28. Specifically, Ms. Gilbert has had recurrent hernias and has been diagnosed with chronic obstructive pulmonary disease ("COPD"). AR at 28-29. Ms. Gilbert testified that she first developed a hernia when she was lifting 50-60-pound cases of stock while working as a cook. AR at 30-31. She had multiple surgeries for the hernias, and in between the surgeries, swelling made it difficult for her to lift objects or bend over. AR at 43. As a result, Ms. Gilbert could not perform household chores involving lifting. AR at 30.Ms. Gilbert further testified that in 2005 she experienced diverticulitis (swelling in the large intestine) and pain in her abdomen from a fistula in her colon. AR at 32.

Ms. Gilbert testified that her COPD contributed to her inability to work. AR at 28. She began using inhalers in 2005, still uses them today, and has been on oxygen while hospitalized. AR at 34. She experiences shortness of breath and chest pains when she overexerts herself. AR at 34. As a result, her sister and son assist her around the house. AR at 36.

Ms. Gilbert also testified that she experiences difficulty sleeping. AR at 38. Following her COPD diagnosis in 2002, she began to use three pillows in bed to help her breathe. AR at 38-39. She coughs and gags when she lays flat in her bed. AR at 38. Due to trouble sleeping at night, Ms. Gilbert takes naps five out of seven days a week. AR at 40-41.

b. Vocational Expert Grace Gianforte

Vocational expert Grace Gianforte also testified. According to Ms. Gianforte, Ms. Gilbert's past relevant work included experience as a cook, a housekeeper, and a nanny. AR at 46-47. Ms. Gilbert's work as a cook involved prep-work, deep-frying, sautéing, cooking steaks, making soups, sandwiches, and salads, and cleaning up. AR at 46. Due to the variety of tasks, Ms. Gianforte testified that under the Dictionary of Occupational Titles, Ms. Gilbert's skill level as a cook would be classified as specific vocational preparation ("SVP") level five and medium in exertion. AR at 46-47.

Ms. Gilbert's housekeeping work was unskilled and typically ranged in exertion from light to medium. AR at 47. Ms. Gilbert's skill level as a nanny, where she cared for three children and tended to their home, is classified as SVP four and medium in exertion. AR at 47.

Ms. Gianforte concluded that Ms. Gilbert's work history in its entirety classifies as semi-skilled and medium in exertion. AR at 47.

Ms. Gianforte then considered the ALJ's first hypothetical question, which asked whether an individual of Ms. Gilbert's same age, education, work experience, and skill set who has the ability to perform medium work, lift or carry up to 25 pounds frequently, could occasionally lift up to 50 pounds, climb stairs and ramps, stoop, crouch, kneel, but could not crawl or climb ladders, ropes or scaffolds, could perform Ms. Gilbert's past work. AR at 47-48. Ms. Gianforte opined that the restrictions of only occasionally stooping, crouching, kneeling, and never crawling would preclude the housekeeping and nanny work, but the medium exertion level would allow for work as a cook. AR at 48. Additionally, Ms. Gianforte stated that a person with the aforementioned restrictions could perform medium exertion level jobs, such as food preparation worker, kitchen helper, and cook helper. AR at 48.

Ms. Gianforte then considered hypothetical question two from the ALJ: would adding in an additional restriction of avoiding concentrated exposure to poorly ventilated areas affect her conclusions? AR at 48-49. Ms. Gianforte responded that this would not affect her analysis. AR at 48-49. When Ms. Gilbert's counsel questioned Ms. Gianforte, she acknowledged that while kitchens are required by law to be well-ventilated, "in a real job anything can happen and food can get burnt," thus creating an environment where a person in a kitchen could be exposed to smoke. AR at 56. Nevertheless, she opined that caterer helpers, salad makers, and short order cooks all work in well-ventilated areas, although they might have a "moderate exposure" to irritants. AR at 57.

Ms. Gianforte then considered the ALJ's third hypothetical question: would an individual with the same limitations as the prior hypothetical question, but an exertion level of light (i.e., able to lift up to 20 pounds occasionally and lift or carry up to 10 pounds frequently) instead of medium be able to perform Ms. Gilbert's past work? AR at 49. Ms. Gianforte opined that the individual would not be able to do so. AR at 49. Nevertheless, she opined that Ms. Gilbert's skills would be transferable to the food services industry and specifically to the "light" positions of caterer helper (1,500), salad maker (8,000), and short order cook (4,000). AR at 49. Ms. Gianforte further stated that no additional skills would be required for these three positions. AR at 49. Ms. Gianforte thus concluded that these jobs would require minimal vocational adjustment for an individual with Ms. Gilbert's skills and limitations. AR at 49-50.

Ms. Gianforte then considered hypothetical question four from the ALJ: would an individual with the same limitations as the prior hypothetical question who could, in addition, not climb ladders, ropes, or scaffolds, occasionally climb ramps or stairs, and never stoop, crouch, kneel, or crawl be able to perform Ms. Gilbert's past work? AR at 50. Ms. Gianforte indicated that if stooping is defined as bending the spine at the waist, then a caterer helper, salad maker, and short order cook would have to stoop or crouch on a basis of "maybe less than occasional but certainly more than never." AR at 51-52. She further explained that if a person was standing while performing the three listed jobs, the person would have to "bend their spine at the waist over the stove, over the table, taking items from a tray." AR at 51-52. She also noted that "tables vary in heights, carts vary in heights, and a caterer is moving things from carts to a table and sometimes there's various shelves on the carts." AR at 51-52.

Ms. Gianforte then testified that if stooping is defined as bending at the waist and reaching down to knee level or the floor, a person performing the jobs of caterer helper, salad maker, and short order cook would need to stoop to reach items on lower shelves and pull items out of the refrigerator. She also stated that a person performing the three listed jobs might have to crouch (i.e., bend the knees and the spine) to reach items in the refrigerator. She thus concluded that an individual who could not bend or stoop would not be able to perform the jobs of caterer helper, salad maker, and short order cook, and specifically noted that a person performing these jobs needs to be able to stoop. AR at 52-53.

Ms. Gianforte then considered a fifth hypothetical from the ALJ: what if a job required the ability to occasionally stoop, but not crouch? AR at 54. Ms. Gianforte responded that if a person could not stoop and crouch, she could not recommend that person for the positions of salad maker, caterer helper, and short order cook. AR at 54. Further, in response to a sixth hypothetical from the ALJ, Ms. Gianforte stated a person who could not work on a 9:00 a.m. to 5:00 p.m. basis could not perform competitive work. AR at 54.

2. Medical Evidence

a. Ms. Gilbert's Medical History Prior to December 31, 2005 (Her Date Last Insured)

Ms. Gilbert visited medical professionals on numerous occasions between 1995 and 2005. Dr. Halpin, a doctor of osteopathic medicine (D.O.), was Ms. Gilbert's examining physician for the majority of her appointments. AR at 226-359. As early as 1997, Ms. Gilbert told Dr. Halpin she had abdominal pain. AR at 237. On July 16, 1998, after Ms. Gilbert complained of "abdominal pain and stool coming from the rectum and vagina," Dr. Halpin examined Ms. Gilbert by filling her colon with air and ultimately diagnosed Ms. Gilbert with sigmoid diverticulosis and possible diverticulutis.*fn1 AR at 228.

On July 23, 1998, Ms. Gilbert underwent a microscopic examination of her colon at South Suburban Hospital in Hazel Crest, Illinois, and remained at the hospital until July 28, 1998. AR at 252-253. Dr. Geetha Sabram, a pathologist, reported that the examination indicated diverticular disease and noted that a "portion of [her] intestine show[ed] extensive ulceration and acute and chronic inflammation." AR at 252.

In October of 1998, Dr. Sanath Kumar, a surgeon, performed numerous procedures on Ms. Gilbert, ultimately diagnosing her with colovesical enteral fistula*fn2 secondary to diverticulitis. AR at 344.

In April of 1999, Ms. Gilbert suffered from a hernia and had surgery to address it. AR at 352. Dr. Kumar's postoperative diagnosis indicated a "large ventral hernia" (i.e., an abdominal hernia) with adhesions between her small bowel and hernia sac." AR at 352-353.

In 2002, Ms. Gilbert frequently sought medical assistance, and primarily saw Dr. Halpin. AR at 257-262. On May 8, 2002, Dr. Halpin treated Ms. Gilbert for a varicella zoster infection*fn3 of the left forehead and left eye. AR at 262. During this visit, Dr. Halpin also prescribed Amitripline, an antidepressant also known as Elavil. AR at 262. Ms. Gilbert saw Dr. Halpin for a follow-up on May 13, 2002, and Dr. Halpin noted that ...

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