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Bruce A. Robison v. Michael J. Astrue

May 18, 2011

BRUCE A. ROBISON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge

E-FILED Thursday, 19 May, 2011 08:34:16 AM Clerk, U.S. District Court, ILCD

OPINION

Plaintiff Bruce A. Robison appeals from the denial of his application for Social Security Disability Insurance Benefits and Supplemental Security Income (collectively "Disability Benefits") under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c. This appeal is brought pursuant to 42 U.S.C. §§ 405(g) and 1383(c). Robison has filed a Motion for Summary Judgment (d/e 15), and Defendant Commissioner of Social Security has filed a Memorandum in Support of Motion for Summary Affirmance (d/e 17). The parties consented, pursuant to 28 U.S.C. § 636(c), to have this matter proceed before this Court. Consent to Proceed Before a United States Magistrate Judge, and Order of Reference entered January 31, 2011 (d/e 13). For the reasons set forth below, the decision of the Commissioner is affirmed.

STATEMENT OF FACTS

Robison was born on March 1, 1958. He completed high school and a year of college. Answer to Complaint (d/e 9), attached Certified Transcript of Proceedings Before the Social Security Commission (R.), at 37. He previously worked as an industrial cleaner, farm worker, landscape laborer, store laborer, and production worker. R. 54. He suffers from degenerative disc disease and related conditions in his back and chronic obstructive pulmonary disease (COPD). R. 12. He alleged that he became disabled on June 1, 2005. He subsequently amended his alleged onset date to March 1, 2008. R. 10, 36. He last worked in December 2007. R. 37.

Robison filed a claim for Disability Benefits on February 8, 2006. In April 2006, Robison indicated in a Social Security Disability Report that he had trouble breathing; pain in his back when walking, lifting or getting up or down; and exhaustion and loss of energy. He stated that it took great effort to complete daily tasks and personal needs. R. 115.*fn1

On May 6, 2006, he completed a Social Security Administration questionnaire entitled, "Function Report -- Adult." R. 160-68. Robison indicated that the pain affected his sleep. R. 162. Robison also reported that he could not do much because he was out of breath and tired. R. 166.

On June 6, 2006, a state agency physician, Dr. Gary Cromer, M.D., reviewed Robison's medical records. Dr. Cromer noted that Robison had been diagnosed with COPD and has a history of frequent episodes of bronchitis and upper respiratory infections. R. 367. Robison had reduced peak intake flows in October 2005, March 2006, and April 2006. These reduced intake flows, however, occurred when Robison had bronchitis or upper respiratory infections. Dr. Cromer concluded that there was insufficient evidence to assess whether a pulmonary function study was warranted, or, if not, what Robison's residual functional capacity (RFC) would be. R. 367.

On July 27, 2006, Robison was examined at the Marion, Illinois, Veterans' Administration Hospital (VA Hospital). R. 383. During the examination, Robison had a positive straight leg test bilaterally and positive Patrick's test. Robison also had focal tenderness in the lumbar area and kyphoscoliosis dorsal spine with flexion stiffness. R. 389. X-rays of Robison's spine taken in July 2006 showed degenerative disc disease in the L4-L5 level of the spine and mild posterior subfluxation at the same level. R. 373. X-rays of Robison's chest indicated pulmonary emphysema and bilateral pulmonary scarring. R. 375.

On July 28, 2006, Robison completed a report of daily activities.

R.189-98. Robison lived at his mother's home at the time. His mother prepared his meals. He did the dusting and yard work, took out the trash, and fed their pet. R. 190. Robison stated that his back hurt occasionally when he got dressed or arose from bed. R. 191. He experienced shortness of breath, pain, and fatigue after lifting bags of groceries or baskets of laundry. R. 195. He also said that when he took out the trash or did yard work, his back started hurting, he got short of breath, and he suffered from fatigue. R. 196.

On August 31, 2006, state agency physician Dr. Barry Free, M.D., completed an RFC assessment. R. 398-405. Dr. Free opined that Robison could perform tasks at the medium exertional level of frequently carrying 25 pounds and occasionally carrying 50 pounds. R. 399. See 20 C.F.R. 416.96(c) (definition of medium work). Dr. Free opined that Robison could stand, walk and sit for six hours in an eight-hour workday. R. 399. Dr. Free stated that Robison could frequently balance and occasionally: (1) climb ramps, stairs, ladders, ropes, and scaffolds; (2) stoop; (3) kneel; (4) crouch; and (5) crawl. Dr. Free also opined that Robison should avoid concentrated exposure to fumes, odors, gases and poor ventilation. R. 402.

Robison went back to work on September 11, 2006. R. 202. He worked as a fork lift operator and then a production worker. R. 37, 52-53, 202. This type of work is rated at the medium exertional level. R. 54-55. Robison was fired in December 2007 because he came to work with alcohol on his breath. R. 37. He looked for work after that, but was unsuccessful. In 2008, he decided to get an attorney and see whether at his age he could qualify for disability. R. 39.

Robison returned to the VA Hospital on May 21, 2008. X-rays showed extensive obstructive pulmonary disease, with asymmetric infiltrates/consolidation in his left perihilar region and lingular segment left upper lobe, most likely inflammatory. R. 409, 464.

On October 14, 2008, Dr. Stephen Gerber, M.D., answered medical interrogatories concerning Robison's restrictions, based on a review of the medical evidence. R. 406. Dr. Gerber stated that Robison had been diagnosed with hepatitis C, mild degenerative disc disease of the lumbar spine, and COPD. Dr. Gerber opined that Robison's impairments did not meet or equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings"). R. 407. Dr. Gerber further opined that Robison could lift 20 pounds frequently and 50 pounds occasionally; could stand, walk and sit for six hours in an eight-hour workday; could occasionally perform all postural activities; and should never be subject to concentrated exposure to dust, fumes, gases, and temperature extremes.

R. 408.

On March 4, 2009, a doctor from the VA Hospital completed a physical RFC questionnaire. He stated that Robison had been diagnosed with low back pain, COPD, and hyperlipidemia. R. 472. The doctor opined that Robison could perform sedentary work, lift up to 10 pounds occasionally, lift and carry small items, stand and walk for two hours in an eight-hour workday. R. 473. The doctor opined that Robison should never bend, twist, stoop, climb, crouch, crawl, but could occasionally kneel.

R. 475. The doctor opined that Robison would need to lie down or recline periodically throughout the day. R. 474. The doctor also stated that Robison had ...


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