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Brian Cook v. Michael J. Astrue

July 12, 2011


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


Claimant Brian Cook ("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 for summary judgment: (1) whether the ALJ properly analyzed the onset date of Claimant's disability; (2) whether the ALJ considered Claimant's impairments in combination; (3) whether the ALJ made a valid credibility determination; and (4) whether the ALJ properly found that Claimant could perform a significant number of jobs in the national economy. For the following reasons, the Court denies Claimant's motion for summary judgment and affirms the Commissioner's decision.


A. Procedural History

Claimant initially filed for DIB on December 31, 2007, alleging a disability onset date of November 25, 2002. R. 135--39. Claimant's date last insured was December 31, 2004. R. 148. The Social Security Administration ("SSA") denied his application on March 7, 2008. R. 76--80. Claimant then filed a request for reconsideration, which was denied on October 2, 2008. R. 89--92. Thereafter, Claimant requested a hearing before an ALJ. R. 93.

On December 10, 2009, Administrative Law Judge Curt Marceille (the "ALJ") presided over a hearing at which Claimant appeared with his attorney, Christopher Bodeen.

R. 37--71. Claimant and Grace Gianforte, a vocational expert, testified at the hearing. No medical expert testified. On March 26, 2010, the ALJ rendered a decision finding that Claimant was not under a disability at any time from the alleged disability onset date through the date last insured. R. 5--10. Specifically, the ALJ found Claimant had "the residual functional capacity to perform sedentary work" with certain restrictions and that "[C]laimant was capable of making a successful adjustment to other work that existed in significant numbers in the national economy." R. 11, 17.

Claimant then filed for a review of the ALJ's decision to the Appeals Council. R. 122. On August 13, 2010, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. R. 1--4. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony-December 10, 2009

1. Brian Cook-Claimant

At the time of the hearing, Claimant was 38 years old and living with his mother. R. 41, 50. Claimant graduated high school and worked most recently as a barber starting in 2000. R. 42. He earned $18,000 to $20,000 per year at that job. It is unclear when exactly Claimant stopped working because he had no tax return copies and was unsure whether he filed a return every year. R. 42--43. He was working in August 2003 and stopped "[a]round summertime . . . or maybe like around November" of 2003. R. 42--44.He stopped working because of pneumonia, congestive heart failure, and "shortness of breath, headaches, fatigue, swelling of [his] legs, palpitations of the heart, chest pains, [and] gout." R. 44. Claimant has received Supplemental Security Income ("SSI") since December 11, 2007. R. 40.

Claimant estimated he could walk a block before getting tired and short of breath and could only lift about eight pounds. R. 46, 48. He could stand for ten or fifteen minutes before needing to take a break or sit down and elevate his legs. R. 46. Claimant also elevated his legs when they were swollen, and so would prop his feet up on pillows and chairs. R. 46--47, 54, 60. He could sit for between fifteen and thirty minutes before he got "restless" and had to use the bathroom. R. 46. He took Lasix, a diuretic, which caused him frequent urination and occasional leg cramps. R. 55. He testified to using the restroom at least three to four times an hour. R. 56. When he stopped working he weighed about 330 pounds, was often drowsy, and would fall asleep during down time. R. 54.

Claimant generally avoided leaving the house except to attend weekly religious services and monthly or bi-monthly health checkups. R. 49, 61. Despite having a driver's license, he does not drive. R. 51. Claimant indicated that he did not go shopping, then admitted to visiting a store for toiletries a few months prior to the hearing, though he claimed this was the only time he has shopped in the last five years. R. 52. Claimant also stated that he does not clean the house, but occasionally cooks food. Id.

2. Grace Gianforte-Vocational Expert ("VE")

Grace Gianforte testified as a vocational expert. R. 62. Claimant's most recent position as a barber was skilled work. Id. While questioning the VE, the ALJ asked whether a person of Claimant's age, education, and past relevant work experience, limited to only sedentary work and unable to climb ramps or stairs, could perform Claimant's past relevant work. R. 63. The VE responded that none of Claimant's past relevant work was at the sedentary level, and therefore could not be performed by Claimant. Id. That said, the hypothetical person could perform the positions of information clerk, security monitor, and appointment clerk. Id. Information clerk is a semi-skilled job with about 4,000 positions available in the Chicago metropolitan area; appointment clerk is low-end semi-skilled with 3,000 positions; and security monitor is unskilled with 1,500 positions. R. 62--63. The jobs all involve a stress level of two or three on a scale of one to ten, one being minimal stress, ten being high stress. R. 66. Regarding the stress of the security monitor position, the position involves working alone, logging unusual events, and making a phone call if an emergency arises. Id. Next, when the ALJ added to his hypothetical the need to elevate a foot while seated, the VE indicated that availability of work would depend on the height of elevation. R. 64. Pillow or footstool level would be fine, but chair level would preclude employment from the cited jobs. Id. Additionally, washroom breaks of three to four times an hour would be excessive and preclude work. R. 66.

C. Medical Evidence

1. Claimant's Medical Treatment Before the Date Last Insured

Even before the alleged onset date in November 2002, Claimant was treated for heart problems that resulted in "severe" congestive heart failure ("CHF").*fn1 R. 226--31, 236--37, 248, 268. As of February 2002, Claimant's ejection fraction was 20--25%.*fn2 R. 251--52. Claimant's symptoms included shortness of breath, coughing, congestion, and swollen feet.

R. 230. On November 14, 2002, just before the alleged onset date, Claimant was treated with medication, including a diuretic, and prescribed a low-salt, low cholesterol diet. R. 251, 253. Dr. Sanjeev Joshi appears to have been Claimant's primary care physician during this period. By the alleged onset date of November 25, Dr. Joshi reported that "[t]he CHF is better" and that Claimant "otherwise has been doing fair." R. 224. Chest x-rays revealed improved congestion after a bout of bronchitis. R. 224, 235.

In January 2003, Claimant visited Dr. Joshi feeling poorly and complaining of shortness of breath, cough, and congestion. R. 217. A chest x-ray showed a moderately to markedly enlarged heart, and "possible very early congestive changes." R. 220. Dr. Joshi diagnosed Claimant with probable CHF and bronchitis, as well as sleep apnea and obesity R. 217.

Claimant reported intermittent symptoms throughout the rest of 2003, and his ejection fraction numbers rose through the rest of that year. In March 2003, Claimant had an ejection fraction of 35%. R. 265. On April 10, 2003, Claimant reported weekly chest throbbing, but no chest pain, shortness of breath, edema, or dizziness. R. 284. Two weeks later, Claimant reported feeling well, and had no chest pain, shortness of breath, palpitations, or edema. R. 281.

In July 2003, Claimant was admitted to the hospital with pneumonia, complaining of cough, congestion, fever, and chills. R. 395--96. Dr. Joshi noted that Claimant had "been doing well" and that he "had been working full-time too." R. 396. The pneumonia was treated with antibiotics, respiratory therapy, and cough medicine. R. 395. On August 18, 2003, Dr. Joshi noted at a checkup that Claimant seemed "a little tired," but "seems to be feeling much better now. He is back to work. Denies any shortness of breath except when it is very hot." R. 276. Claimant's ejection fraction had improved to 35--40%. R. 259.

Later in 2003, Claimant's condition showed marked improvement. Claimant's ejection fraction as of August 2003 was interpreted as 35--40% by a lab report and 40--45% by Dr. Joshi.*fn3 R. 259, 273. On November 17, 2003, Claimant saw Dr. Joshi for a cough, congestion, ...

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