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Lora L. Thomas v. Michael J. Astrue

February 1, 2011


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


Claimant Lora Lee Thomas ("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") and Supplemental Security Income ("SSI"). Claimant raises the following issues: (1) whether the ALJ properly favored the testimony of the medical expert over the opinions of Claimant's treating and examining physicians in her determination of Claimant's residual functional capacity; (2) whether the ALJ properly evaluated Claimant's credibility; and (3) whether the ALJ failed to consider all of Claimant's impairments in combination and in doing so posed an improper hypothetical question to the vocational expert. For the following reasons, the Court grants Claimant's motion for summary judgment and remands the case to the Commissioner for further proceedings consistent with this opinion.


A. Procedural History

Claimant initially applied for DIB and SSI on April 30, 2007, alleging a disability onset date of January 26, 2007. R. 189, 194. The Social Security Administration ("SSA") denied her applications on June 14, 2007. R. 110--11. Claimant then filed a request for reconsideration, which was denied on November 21, 2007. R. 148--55. Thereafter, Claimant requested a hearing before an ALJ. R. 122--23.

On January 12, 2009, Administrative Law Judge Mona Ahmed (the "ALJ") presided over a hearing at which Claimant appeared with her attorney, Charles Olinger. R. 37--105. In addition to Claimant, Dr. Walter Miller, Jr., a medical expert, and Lee Knutson, a vocational expert, also testified. On August 28, 2009, the ALJ issued a decision finding Claimant was not disabled under the Social Security Act. R. 18--32. Specifically, the ALJ found Claimant had "the residual functional capacity to perform a range of light work" and that "there are jobs that exist in significant numbers in the national economy that the claimant can perform." R. 25, 31.

Claimant then filed for a review of the ALJ's decision to the Appeals Council. R. 17. On March 10, 2010, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. R. 2--12. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony -- January 12, 2009

1. Lora Lee Thomas -- Claimant

At the time of the hearing, Claimant was 39 years old. R. 43. She currently lives in a house with her adult son and one grandchild. R. 43--44. Claimant's highest level of education is an associate's degree in applied science, and she formerly worked as a mortician. R. 45. Claimant's most recent gainful employment ended in January 2007, when she stopped working at a traffic director position following a neck surgery. R. 26, 46--47. She also served briefly in the military in 2004 but was discharged for hip and shoulder injuries suffered in a fall. R. 45, 92. Claimant complained of "severe migraines," "numbness in [her] hand and arm," and being unsteady on her feet. R. 47. Claimant's only income is from disability benefits she receives through the Veterans Administration, with a forty-percent disability rating related to hip and shoulder injuries. R. 45.

Claimant testified that she could not stand, walk or sit for prolonged periods of time due to pain and her hip condition. R. 47, 57--58. Claimant estimated that she could walk about a block and a half in about four minutes, but would then have to stop and rest.

R. 57. Claimant testified that she loses her balance often, and she uses a cane when she leaves her home. R. 52. Claimant cannot stand in one place longer than four or five minutes because of her hip. R. 58. She is capable of bending at the waist, but has difficulty squatting down. Id.

Claimant also described pain in her hip, neck, and shoulder, which radiates into her arm and hand. R. 48. This pain began before her surgery in 2007 and has continued. Id. She also reported muscle spasms in her left arm, neck, and right leg about three times a week.

R. 48, 53. Claimant testified that she experiences numbness in both of her arms and hands.

R. 51. Claimant estimates that the maximum weight she can lift is six pounds. R. 59. She mitigates her hip pain by resting with her feet up about three to four hours a day. R. 54. When she sits in a chair without her feet up, she experiences pressure on her hip. R. 56.

Claimant began having migraines in October 2006. R. 48. These headaches occur an average of once or twice a week and last between twelve and forty-eight hours. R. 48--49. When experiencing migraines, Claimant feels nauseous and stays in bed to avoid noise and light. R. 49. Claimant was taking Verapamil to prevent migraines and had previously taken Zomig as a migraine abortive, although her neurologist was going to replace Zomig with an injected medicine. R. 50.

According to Claimant, she does dishes, laundry, and sweeps the house and her shoulder and neck hurt afterwards. R. 52. Claimant owns a car which she occasionally drives. R. 44. Typically Claimant's neighbor drives her around because her muscle spasms cause her to pull the car over quite often. R. 44--45. Claimant's son takes her out to shop for groceries every two weeks. R. 52. She cooks about twice a week and her son prepares meals the rest of the time. R. 53. Claimant is right-handed and can use that hand to button her clothes, use a pen to write, feed herself with utensils, and lift cups. R. 44, 59.

2. Dr. Walter Miller Jr. -- Medical Expert

Dr. Walter Miller, Jr. testified as a medical expert ("ME"). R. 61-90. He noted that Claimant's documented impairments include a cervical herniated disc, a brachial plexus*fn1 injury, a fractured right hip followed by open reduction internal fixation surgery, and an impingement in her left shoulder. R. 61, 65--66. The ME stated that there was nothing in Claimant's medical records to document why she was having trouble with her right hip and that it was unclear why the Claimant needed to avoid bearing weight on her right leg. R. 61. According to The ME, there was nothing in the record that described a failed healing of her right hip, but there are x-rays of the hip showing it healed after the surgery. R. 64, 70.

The ME noted that there was a question of compression of the spinal cord and that there was insufficient documentation existed in the medical records as to why Claimant was diagnosed with a brachial plexus injury. R. 61--62. The ME stated that more than one disk injury in the cervical vertebra would be necessary to cause a brachial plexus injury. R. 63. One doctor referenced an EMG*fn2 that was supposed to support a finding of a brachial plexus injury, but the ME did not see that EMG in the record. R. 68.

In regards to the Claimant's tingling in her fingers and spasms in her left upper arm, the ME stated that there was no evidence of a radial nerve injury in the record and no documentation that the spasticity in her arm was caused by a brachial plexus injury. R. 63. The ME testified that an EMG was needed to show evidence of nerve damage in her right forearm. R. 76--77. Additionally, there should be atrophy or sensory loss observed in conjunction with the EMG. R. 78--79. He testified that he would need to see a complete report by the person who conducted the test to know if that occurred. R. 79.

The ME found evidence for tendinitis in the shoulder and some weakness in the left hand that would result in a five percent limitation in the use of her left hand. R. 84. It was unclear what caused those problems, though the ME stated that it could have been caused by a brachial plexus injury, surgery in the cervical spine fusion, or a residual injury. Id. The ME found no evidence that the Claimant could not use her left hand at all. Id. The ME then testified that Claimant could use her left hand to handle objects for up to one-third of the day and that she could use her left hand to manipulate smaller objects. R. 86.

As for Claimant's migraines, the ME stated that Claimant's migraines cannot be diagnosed by an MRI and are being treated by a broad range of medications. R. 63--64. The ME testified that he did not know anything about Claimant's future sub-cutaneous treatment for her migraines. R. 90.

The ME testified that based on the record, Claimant would be capable of lifting twenty pounds occasionally, and ten pounds frequently. R. 64. Additionally, he concluded that Claimant would be able to stand six out of eight hours, with no restrictions on sitting. Id. There were no MRI tests showing that Claimant's ability to use her left arm was limited, although Claimant has an impingement in her left shoulder which limits her ability to use her arms above her head. R. 65--67. The ME testified he could not conclude that Claimant had significant limits in using her arms and hands without seeing supporting EMG data. R. 68. The ME thus concluded that Claimant has no significant limitations on using her hands or fingers but that she does have muscle weakness in her left arm, shoulder, and hand.

R. 66--68.

The ME also noted that insufficient documentation existed to supported chronic bursitis in Claimant's hip. R. 70--71. While there was a medical opinion indicating that Claimant needed a cane or walker to ambulate, the ME stated that he did not see objective tests supporting that opinion. R. 71. The Claimant suffered a ten-degree loss in hip flexion, which the ME testified is not a substantial deficit. R.72.

3. Lee Knutson -- Vocational Expert

Lee Knutson testified as a vocational expert ("VE"). R. 91-98. The VE testified that the Claimant had past work experience as a traffic clerk. R. 92. This is semi-skilled work that is generally performed at the sedentary level, but the Claimant performed at the light exertional level. Id. Claimant's other past work experience included positions as a deli clerk, which was medium exertion and unskilled; funeral director/embalmer, which was heavy exertion and skilled; secretary, which was sedentary and skilled; cashier, which was light exertion and unskilled; and exterminator, which was light exertion and skilled. Id. The VE testified that Claimant's work in the Army was not significant because it was short-lived, but that the work was very heavy exertion and semiskilled. Id.

The ALJ presented the VE with a detailed hypothetical person:

Exertional capacity is light as defined, so twenty pounds lifting occasionally, ten pounds frequently, standing and walking can be done six of eight. Sitting can be done six of eight. No more than occasional overhead reaching with the left non-dominant hand. No more than occasional fingering also with the left non-dominant hand. R. 93.

The VE stated that this hypothetical person would not be able to perform Claimant's past relevant work. Id. The VE testified that this person could perform positions at the light exertion level. Id. Most of these positions were unskilled and included jobs such as information clerk, usher, or parking lot attendant. R. 93--94, 96. The VE stated that these jobs are all available in the Chicago metro area. R. 94.

The ALJ then asked the VE to consider the same hypothetical person who could not climb ladders, ropes, or scaffolds and who could only occasionally stoop, kneel, crouch, and crawl. Id. The VE testified that these reduced abilities would not change the answer. Id. Finally, the ALJ further restricted the hypothetical person, changing the exertion level to sedentary. Id. The VE testified that this person could work as a surveillance system monitor and as a sedentary and unskilled information clerk. R. 94--95, 97. The VE stated that these jobs are all available in the Chicago metro area. R. 94--95. The VE stated that any of the unskilled jobs he quoted would allow employees to miss work no more than ten percent of the time, so an employee would lose her job if regularly absent two or more times per month. R. 96.

C. Medical Evidence*fn3

1. Neck Surgery at Hines Veterans Affairs ...

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