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Brenda Fleming v. Michael J. Astrue

May 10, 2011


The opinion of the court was delivered by: Magistrate Judge Susan E. Cox


Plaintiff, Brenda Fleming ("Fleming"), seeks judicial review of a final decision denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. Fleming has filed a Motion for Summary Judgment and seeks a judgment reversing or remanding the Commissioner's final decision. For the following reasons set forth below, Fleming's motion is granted.


On September 8, 2006, Fleming filed an application for DIB with a period of disability beginning on January 1, 2003.*fn1 The Social Security Administration denied her initial claim on November 15, 2006.*fn2 Fleming then filed a Request for Reconsideration and the claim was again denied by notice on January 9, 2007.*fn3 On February 23, 2007, Fleming filed a written request for a hearing before an Administrative Law Judge ("ALJ").*fn4

On May 28, 2009, a hearing was held before ALJ Bonny S. Barezky in Chicago, Illinois.*fn5 Following the hearing, the ALJ issued an unfavorable opinion on June 16, 2009, finding that Fleming was not disabled under the Social Security Act.*fn6 Fleming then filed a request for review of the ALJ's determination with the Social Security Administration's Appeal Council, which was denied on April 2, 2010, leaving the ALJ's ruling as the final decision of the Commissioner.*fn7 On May 18, 2010, Fleming filed this timely action.*fn8


A. Introduction and Medical Evidence

The facts set forth below provide a brief summarization of Fleming's background and the medical history that led to her application for DIB. Fleming was born on March 6, 1959, making her fifty years old when the ALJ issued her decision.*fn9 Fleming graduated from high school and previously worked as a teacher's assistant at a daycare facility from 1995 through 2002.*fn10 She last worked as a teacher's assistant for two weeks in March of 2006.*fn11

Fleming was diagnosed with a seizure disorder as early as 1995 by family medical doctor, Rolando Sajor, M.D.*fn12 A seizure is "a sudden attack of an illness; a sudden onset of symptoms, [such] as convulsions" or as an "epileptic attack."*fn13 There are many types of seizures and Fleming has experienced both grand mal and petit mal seizures throughout her life.*fn14 A grand mal is " a severe fit or seizure, marked by a prolonged loss of consciousness, convulsions, coma, etc."*fn15 A petit mal is "a mild seizure or fit, marked by a short lapse of consciousness, dizziness, etc., but without convulsions."*fn16 Dr. Sajor prescribed her Phenobarbital to treat her disorder and Fleming continues this regimen to date.*fn17 Fleming has also been diagnosed with iron deficiency anemia, which she has been prescribed Ferrous Sulfate for treatment.*fn18 Iron deficiency anemia is "anemia caused by a lack of iron in the diet."*fn19 Generally, anemia is "a condition of the blood in which the number of red blood cells is below normal, or the amount of hemoglobin - the oxygen-carrying red pigment - in the red cells is below normal, or both the number of cells and the amount of hemoglobin are below normal."*fn20 The symptoms of anemia may include "paleness, weakness, fatigue, lack of energy, shortness of breath, palpitation, and swelling of the extremities."*fn21 At the time of Fleming's hearing, she also indicated she takes Atenolol, along with water pills, to treat her high blood pressure.*fn22

On November 1, 2006, Kenneth H. Gong, M.D., conducted a consultative examination of Fleming on behalf of the Bureau of Disability Determination Services.*fn23 Fleming told Dr. Gong that she has had a seizure disorder since the age of three and that her last seizure was in 2002.*fn24 She explained that she did not know the duration of her seizures, but that individuals who witnessed these episodes have explained that she has bitten her tongue and lost bladder control during her episodes.*fn25 Fleming reported to Dr. Gong that she has been diagnosed with anemia and was seen at Stroger Hospital Emergency resulting from palpitations and weakness related to anemia.*fn26

Dr. Gong reported that during his evaluation Fleming did not appear to be in any "acute distress."*fn27 However, he noted that upon getting up from the examination chair, Fleming's respiratory rate was "28 with shallow breaths."*fn28 The doctor evaluated Fleming to have normal grip strength, gait, and range of motion.*fn29 He did note, however, that while Fleming was only able to squat and rise fifty percent, she was unable to offer a reason for this difficulty.*fn30

On November 13, 2006, Frank Jimenez, M.D., a separate state-agency physician, reviewed Fleming's medical file and evaluated her residual functional capacity.*fn31 Dr. Jimenez opined that Fleming would be able to occasionally lift up to twenty pounds, frequently lift ten pounds, stand and/or walk and sit for a total of six hours in an eight-hour workday, and had an unlimited ability to push and/or pull.*fn32 He noted that Fleming was only limited in the climbing of ladders, ropes, and scaffolds.*fn33 Dr. Jimenez evaluated Fleming as having tachycardia with a pulse of 108 and an early systolic murmur.*fn34 Despite these observations, Dr. Jimenez concluded that Fleming was capable of work.*fn35 A second state-agency physician, Young-Ja Kim, M.D., reviewed Fleming's file on January 5, 2007 and concurred with Dr. Jimenez's findings.*fn36

B. Fleming's May 28, 2009 Hearing Testimony

Fleming's hearing before the ALJ took place on May 28, 2009.*fn37 Fleming appeared in person and was represented by attorney, Christopher Muldane.*fn38 At the hearing, Fleming testified that she was last employed in 2006 for a period of two weeks.*fn39 Fleming has no source of income and receives financial assistance from her three adult children.*fn40 She lives with her boyfriend who she testified makes no contributions to their household.*fn41 Fleming testified she has never had a driver's license due to seizures.*fn42

When asked by the ALJ why she stopped working in 2006, Fleming responded that she became chronically ill and subsequently quit because she could not sustain her job as a child care assistant.*fn43 Fleming said that she has been taking Phenobarbital for her seizure disorder since the age of three.*fn44 She explained that between 1995 and 2002, while she worked as a teacher's assistant, she took Phenobarbital and had seizures during that period.*fn45 Fleming approximated that while she worked, she had two to three seizures per year.*fn46

Fleming testified that since she stopped working as a teacher's assistant, she has had petit mal seizures once a month.*fn47 Fleming explained that she becomes tired before experiencing a seizure and that she lies down as a precaution.*fn48 She explained that when she has a seizure, she feels incoherent, dazed or confused.*fn49 Fleming testified that these feelings last for approximately three to four minutes, at which point she comes back to herself.*fn50 She said that she has lost bowel control during the course of a seizure, the most recent of which occurred a month before the hearing.*fn51

Fleming testified that she has difficulty sleeping as a result of the water pills prescribed for her high blood pressure.*fn52 Specifically, she said that she is "up all night from the water pills" and that consequently, she sleeps during the day.*fn53

Fleming also testified that she could not walk a block without becoming tired.*fn54 She could stand for approximately twenty minutes in one place before getting tired.*fn55 When asked by the ALJ about how much weight she could lift, Fleming testified that a gallon of milk would be too heavy for her to lift.*fn56

In response to questions about her daily activities, Fleming said that she was able to cook simple meals, dust once or twice a week, do her laundry once a month, wash dishes once or twice a day, and grocery shop.*fn57 She testified that when she grocery shops, she puts the gallon of milk in the shopping cart herself.*fn58


In her June 16, 2009 decision, ALJ Barezky determined that Fleming was not disabled within the meaning of the Social Security Act and, therefore, was not entitled to DIB or a period of disability.*fn59 In reaching this conclusion, the ALJ followed the five-step evaluation process outlined in the Regulations.*fn60 As an initial matter, the ALJ determined that Fleming met the insured status requirements of the Social Security Act on December 31, 2007.*fn61 Under the five-step sequential evaluation process, the ALJ must consider: (1) whether the claimant is presently engaged in any substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the claimant's impairment meets or equals any impairment listed in the Regulations as being so severe as to preclude gainful activity; (4) whether the claimant is unable to perform her past relevant work; and (5) whether the claimant is unable to perform any other work existing in significant numbers in the national economy.*fn62 A finding of disability requires an affirmative answer at either step three or step five, while a negative answer at any step other than step three precludes a finding of disability.*fn63

At step one, the ALJ found that Fleming had not engaged in substantial gainful activity since January 1, 2003.*fn64 At step two, the ALJ found that Fleming suffered from a seizure disorder, chronic ...

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