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Jeffrey L. Packham v. Michael J. Astrue

January 4, 2011


The opinion of the court was delivered by: Magistrate Judge Morton Denlow


Claimant Jeffrey L. Packham ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant" or "Commissioner"), denying Claimant's application for Disability Insurance Benefits ("DIB"). Claimant raises the following issues in his motion: (1) whether the ALJ properly considered the evidence in determining Claimant's residual functional capacity; (2) whether the ALJ made a valid credibility finding regarding Claimant's testimony and other lay witness statements; and (3) whether the ALJ properly considered the evidence in finding that Claimant could perform his past relevant work as a janitor. For the following reasons, the Court denies Claimant's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.


A. Procedural History

Claimant initially filed for DIB on November 14, 2006, alleging a disability onset date of November 1, 2005. R. 153. The Social Security Administration ("SSA") denied his application on March 29, 2007. R. 107. Claimant then filed a request for reconsideration, which the SSA denied on August 10, 2007. R. 115. Shortly thereafter, Claimant requested a hearing before an administrative law judge. R. 119.

On September 17, 2009, Administrate Law Judge Helen Cropper (the "ALJ") presided over a hearing at which Claimant appeared with his attorney, Andrew Barone. R. 30--104. Claimant and Michelle Peters, a vocational expert, testified at the hearing. No medical expert testified. On November 19, 2009, the ALJ rendered a decision finding Claimant was not disabled under the Social Security Act. R. 7--23. Specifically, the ALJ found that Claimant had "the physical [residual functional capacity] to perform a full range of work at all exertional levels" and that he had "the mental [residual functional capacity] to perform and sustain simple, repetitive unskilled work of the type he performed during 2007 and continuing to the present." R. 15.

Claimant then filed for a review of the ALJ's decision to the Appeals Council. R. 4. On March 4, 2010, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. R. 1--3. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony-September 17, 2009

1. Jeffrey Packham-Claimant

At the time of the hearing, Claimant was 57 years old, single, and living with his mother. R. 43. Claimant is a high school graduate and has past relevant work experience as a janitor and maintenance worker. R. 36--37, 213. Claimant has experience performing janitorial work going back to about 1979. R. 52--57. Claimant also has a history of alcoholism. Claimant has once been fired from a full-time position for drinking on the job, R. 53--55, and he has quit at least one other position because of his drinking problem, R. 47--48. On November 19, 2005, Claimant suffered a serious fall as the result of a two-day drinking binge. R. 46, 326--27. He asserts that he stopped drinking after the accident. R. 75.

Since his fall, Claimant has worked only sporadically, performing cleaning or yard-keeping duties at various apartment and condo buildings and earning about $400 per month.

R. 48--50, 63. That said, Claimant did work full-time cleaning an apartment building for a six-week stretch in 2007, as a replacement for an injured worker. R. 50. When asked whether he had trouble doing the work there, Claimant responded, "No. It was kind of stressful though." R. 50. Since that time, Claimant has returned to the same full-time job for one- or two-week stretches about twice a year to fill in for workers on vacation. R. 51--52.

Claimant asserted that he could not handle full-time employment because he "can't remember how to put things back together." R. 65. Apparently, Claimant in the past performed more complex maintenance work, such as plumbing or HVAC work. R. 52.

Claimant also testified about the depression and anxiety that he alleges form the basis of his disability. He began seeing a psychiatrist and taking medication for his anxiety in early 2005. He has taken Librium, Zoloft, doxepin, Sinequan, and Ambien. R. 66--70, 72. At the time of the hearing he was taking Cymbalta, Risperdal, and BuSpar. R. 69--70. Claimant testified that he feels depressed every day, as a result of which he lacks concentration and struggles to go to work or do work around the house. R. 73. He stated that when he feels depressed and has work to perform, he puts off the work for two to three days.

R. 73--74. Nevertheless, Claimant also admitted that his medication makes his depression and anxiety "better" and allows him to function outside his home. R. 72--73.

Upon examination by his attorney, Claimant also testified to feelings of paranoia.

R. 81. When he sees people in public, he often feels that they are following him, and these feelings occasionally force him to stay at home or return home. R. 81. For instance, three months before the hearing, Claimant drove only part way to work and then turned back because he believed someone was following him. R. 81--82. He claims to suffer panic attacks lasting about half an hour about once a week. R. 75.

As for his physical abilities, Claimant stated that he can lift about 100 pounds and that he has not recently seen a doctor for physical problems. R. 78--79. He does laundry, house cleaning, grocery shopping, and most of the cooking for his mother. R. 77. He has a valid driver's license and drives most days, either to work or the grocery store. 44--45.

2. Michelle Peters-Vocational Expert

The vocational expert ("VE"), Michelle Peters, classified Claimant's past relevant work as janitor and maintenance positions. R. 92--93. Pursuant to the Dictionary of Occupational Titles, janitor is a low semiskilled, medium physical demand level occupation.

R. 92--93. Maintenance worker is a skilled, medium physical demand level occupation.

R. 93.

The ALJ then offered a hypothetical to the VE, posing a 57-year-old high school graduate with the past relevant work just described; a moderate limitation in ability to perform complex or detailed assembly talks or to remember assignments for extended periods; and an ability to respond appropriately to supervisors and co-workers. R. 93. The VE testified that this hypothetical person could not perform a maintenance worker position, but gave no categorical opinion as to whether the person could perform a janitorial position.

R. 94--96. She further described a janitor's duties as "pretty repetitive," including tasks like sweeping, mopping, and vacuuming, with occasional more complex tasks such as replacing filters on furnaces or using a scrubbing machine. R. 94. To maintain full-time employment, such a worker must remain on-task through 82 percent of the day and may miss on average one and three-quarters days of work per month. R. 96. On examination by Claimant's counsel, the VE stated that Claimant's current job would not amount to competitive employment if it allows him to not show up for days on end without losing the position.

R. 97.

C. Lay Witnesses

1. Function Reports by Harriet Packham-Claimant's Mother

Harriet Packham ("Ms. Packham") completed two functional reports about Claimant for the Illinois Bureau of Disability Determination Services, the first in December 2006 and the second in July 2007. Both made similar statements. She reported that Claimant performs some household chores and repairs but needs encouragement to start and finish tasks.

R. 222, 257. Ms. Packham also indicated that Claimant's impairments interfere with his ability to talk, understand, follow instructions, complete tasks, remember things, and concentrate. R. 224, 259. According to Ms. Packham, Claimant can ...

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