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Gary E. Bowling v. Commissioner of Social Security

March 30, 2011


The opinion of the court was delivered by: Herndon, Chief Judge:


I. Introduction

Plaintiff Gary E. Bowling seeks judicial review of the Commissioner of Social Security's determination that plaintiff is not disabled and therefore not eligible for Disability Insurance Benefits and Supplemental Security Income (Doc. 20). Specifically, plaintiff claims that the Administrative Law Judge ("ALJ") erred in using Medical-Vocational Rule 202.15 to find plaintiff not disabled. Plaintiff argues that the ALJ erroneously determined that plaintiff at age 55 was an individual closely approaching advanced age, when in fact plaintiff was an individual of advanced age. Consequently, he believes the ALJ should have applied Rule 202.06 for individuals of advanced age and found plaintiff to be disabled. As discussed below, the Court concludes that the rule cited by plaintiff is incorrect and that the ALJ properly relied on testimony from a vocational expert. Plaintiff's complaint (Doc. 2) is DENIED.

II. Background

A. Procedural History

Plaintiff Gary E. Bowling was born on April 1, 1950 (Tr. 246). He was 51 years old at the alleged onset-of-disability date of December 15, 2001. Plaintiff has a high-school education and worked from January 1987 until December 2001 as a mechanic, laborer, and cook (Tr. 268). Plaintiff alleged Chronic Obstructive Pulmonary Disease ("COPD"), arthritis, back pain, and bad feet as his disabling conditions. He alleged that as a result of these conditions he cannot lift over ten pounds, grip anything, stand or sit for long periods of time, and he has difficulty breathing (Tr. 267). Plaintiff indicated that since his alleged onset of disability he has worked intermittently repairing lawnmowers for cash. He stopped working altogether on October 1, 2005 (Tr. 267).

Plaintiff first applied for disability insurance benefits on February 1, 2006 (Tr. 246--50). His application was denied, both initially and again upon reconsideration (Tr. 226--39). He then requested a hearing before ALJ Zane A. Lang. The ALJ held a hearing, yet still came to the conclusion that plaintiff was not disabled (Tr. 12--25). The Appeals Council denied review (Tr. 1--8), and thus the ALJ's decision became final. 20 C.F.R. § 416.1481; Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004). Plaintiff now seeks judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g).

B. Plaintiff's Activities of Daily Living Questionnaire

On March 15, 2006, the plaintiff completed an Activities of Daily Living Questionnaire (Tr. 273--75). He indicated that arthritis in his hands made it difficult to open lids on jars, pick up coins, and hold a pen. He also reported difficulty carrying bags of groceries, baskets of laundry, or bags of trash. He reported that pain in his feet and ankles made walking difficult. He did not drive or travel. He reported loss of balance and pain in his feet and ankles upon getting out of bed or out of a chair. He reported that climbing stairs caused pain in his feet and ankles and opined that he could climb 15 or 20 stairs. He reported that he used a cane to assist with walking and balancing. He said he could not sit for two hours without experiencing numbness in his legs and back pain. Pain in his feet and ankles prevented him from shopping or preparing a meal without taking rest breaks. He indicated that he must rest a few minutes every hour. He stated that he performed no household chores. He indicated that he was able to mow his lawn on a riding mower, but had to stop frequently to rest his back. He indicated that he previously fished out of a boat, but could no longer do so because he cannot sit for extended periods of time (Tr. 273--75).

C. Hearing Before the ALJ

Plaintiff appeared before the ALJ on September 9, 2008. He was represented by counsel. Also present was Dr. June Hagen, a vocational expert.

Plaintiff testified that he was 58 years old at the time of the hearing and had a high-school education (Tr. 212). He testified that he was not working and had not worked since April 1, 2005, at which time he was working as a laborer moving antique furniture (Tr. 207). When prompted by his attorney, however, plaintiff stated that his actual last date of work was January 2001. In 2005 he was only repairing lawn mowers out of his home on a part-time basis. He sometimes lifted 50-pound push mowers but used jacks for heavier riding mowers. Plaintiff testified he made approximately $200 per week repairing lawn mowers (Tr. 208--09).

In 2001 he worked part-time moving furniture. In that job he was sometimes required to lift 200 or 250 pounds by himself. He stopped doing that job in January or February 2002 (Tr. 209--10). The ALJ asked him about lifting requirements in other pre-onset jobs he performed. He testified that in his job at Wal-Mart changing the oil in cars, he was not required to lift more than 15 or 20 pounds. He testified that as a cashier he was required to lift 40- or 50-pound cases for stocking shelves (Tr. 210). In his job as a cook, he was required to lift 40 or 50 pounds by himself (Tr. 211). In his job installing tarps, he had to lift 150 or 200 pounds (Tr. 211). In his job stretching aluminum he had to lift up to 100 pounds (Tr. 211--12). In his job building tractor trailers, he was required to lift approximately 100 pounds (Tr. 212).

Plaintiff testified that he was no longer capable of performing any of the aforementioned jobs because, "Between my hands and my back, I can't do anything anymore" (Tr. 212). He specified that he could not grip with his hands and that he had three discs in his ...

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