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Lander D. Johnson v. Michael J. Astrue Commissioner of Social Security.

November 18, 2011


The opinion of the court was delivered by: Hon. P. Michael Mahoney U.S. Magistrate Judge


I. Introduction

Lander D. Johnson seeks judicial review of the Social Security Administration Commissioner's decision to deny his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. See 42 U.S.C. § 405(g). This matter is before the magistrate judge pursuant to the consent of both parties, filed on February 23, 2010. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

Claimant first filed for SSI on March 20, 2007 (Tr. 102.) He alleges a disability onset date of January 12, 2004. (Tr. 102.) His claim was denied initially and on reconsideration. (Tr. 1, 6.) The Administrative Law Judge ("ALJ") conducted hearings into Claimant's application for benefits on June 24, 2009. (Tr. 22.) At the hearing, Claimant was represented by counsel and testified. (Tr. 22.) Mr. Newman, a Vocational Expert (hereinafter referred to as "VE") was also present and testified. (Tr. 41.) The ALJ issued a written decision denying Claimant's application on July 24, 2009, finding that Claimant was able to perform past relevant work as a car washer/detailer. (Tr. 18.) Because the Appeals Council denied Claimant's Request for Review regarding the ALJ's decision, that decision constitutes the final decision of the Commissioner. (Tr. 1.)

III. Background

At the hearing, Claimant testified to the following:

He was 53 years old and married. (Tr. 26, 28.) He was six feet and one inch tall, weighed 246 pounds, and had completed school through the tenth grade. (Tr. 26, 36.) Claimant's wife did the cooking, cleaning, and grocery shopping for their house. (Tr. 38-39.)

Claimant described a work attempt from 2008 where he was employed as a security guard for a homeless shelter maintained by the American Red Cross. (Tr. 26-28.) Claimant worked the job between July 2008 and roughly December 2008, but stopped working because of his leg problems. (Tr. 27.) The job required him to walk for approximately six hours and sit for about two hours, but there were no stairs or ramps to climb. (Tr. 28-29.) He would get a ride from his wife to get to the job. (Tr. 28.)

Claimant also ran a car wash at his house in 2008 for about four or five months. (Tr. 30.) He and his wife did not do any of the work washing cars, and instead had people that worked for them. (Tr. 31.) He explained to the ALJ a note in his activities of daily living report describing how he would go to a local car wash to wash a few cars in order to earn cash. (Tr. 32.) The activities of daily living report was taken during a May 24, 2007 phone call. (Tr. 32.) Claimant explained that he needed money at that time so he would work mostly drying off cars at a car wash. (Tr. 32.) When asked by the ALJ whether it would be appropriate, based on Claimant's testimony, to infer that Claimant was capable of at least some work through May 24, 2007, Claimant told the ALJ that such an inference would be incorrect based on his leg and back conditions. (Tr. 32-33.)

Claimant described pain in his back and leg from when he went through surgery or some type of medical procedure for his left leg. (Tr. 33.) He had a procedure on his left leg that involved radioactive materials going through his leg that causes his leg to swell up so that he could not stand for 5 or 10 minutes*fn1 . (Tr. 33.) The procedure came as a result of Claimant's heart attack or stroke. (Tr. 33.) His most recent heart attack or stroke was three to four weeks prior to the hearing, and it was the fourth one he had. (Tr. 33.) The symptoms that led Claimant to go to the hospital included dizziness, cramping in his hands, and blurred vision. (Tr. 35.) On the day he had his most recent heart attack or stroke, Claimant went to the hospital in the morning and underwent a procedure whereby the doctor injected him with something to open up the valves to his heart because they were clogging up*fn2 . (Tr. 34.) Claimant was not kept in the hospital overnight. (Tr. 35.)

Claimant was on blood pressure medication which he took every morning, and his dosage was increased by his doctors. (Tr. 35.) He was also taking aspirin every day to help with his heart attack symptoms. (Tr. 36.) Since he stopped working, Claimant has had to keep his leg elevated to prevent swelling. (Tr. 37.) He also took ibuprofin and water pills to address the swelling. (Tr. 37.) Claimant could not stand very long and has had to use a cane during the past four to five months. (Tr. 30, 38.) He would have to move around if he was sitting for more than five to ten minutes because of circulation issues in his leg. (Tr. 38.) His wife helps him get dressed because the pain in his leg prevents him from lifting it. (Tr. 39.)

The VE described Claimant's past work as a car washer as unskilled and light work. (Tr. 42.) He noted that where Claimant listed work detailing cars, this was unskilled but considered medium work. (Tr. 42.) His work as a laborer required lifting up to 40 to 60 pounds, and would be considered unskilled medium to heavy work. (Tr. 42.) Claimant's past work as a furniture packer and mover would be semi-skilled and heavy with an SVP of 3. (Tr. 42.) His past work as a material handler was unskilled and light based on the representation that Claimant only lifted up to ten pounds. (Tr. 42.) Claimant's work as a security guard would normally be considered semi-skilled and light with an SVP of three, but as Claimant described it the VE noted that it appears to have been only unskilled. (Tr. 42.)

The ALJ asked the VE if Claimant would be able to do the work he's performed in the past if he was considered to be able to do medium work, which he defined as: standing and walking at least six hours in an eight-hour day, occasional lifting and carrying up to 50 pounds, frequent lifting and carrying of 25 pounds . . . it includes all lighter exertion categories of work like light and sedentary ... [without] any postural limitations or environmental limitations, except to say the Claimant shouldn't work around excessive dust, fumes, odors or temperature extremes. (Tr. 43.) The VE stated that Claimant would be able to perform his past work based on the ALJ hypothetical. (Tr. 43.) The ALJ then asked the VE to consider the same scenario with a limitation to only a sedentary level of work. (Tr. 43-44.) The VE stated that Claimant would be able to perform jobs such as bench hand assembler, sorter, and general assembler. (Tr. 44.) Each of the jobs is considered unskilled and sedentary, and there are 103,100 total jobs in Illinois. (Tr. 44.) Claimant's use of a cane would eliminate his ability to perform his previous jobs of car washer, auto detailer, laborer, security guard, and packaging that ranged between light and medium work. (Tr. 44.) The use of a cane would not eliminate 30% of the bench sorter jobs. (Tr. 45.) If a person has to elevate his leg to waist level for at least five hours per day, that would eliminate the possibility of work. (Tr. 45.) If a person could only maintain a sitting posture for 10 to 15 minutes, that would eliminate the possibility of work at the sedentary level. (Tr. 46.) Generally, the VE testified, a person in unskilled jobs needs to be productive for 50 minutes out of every hour. (Tr. 46.) A person needing to be absent more than one day per month would also be unable to hold competitive work. (Tr. 47.)

IV. Medical Evidence

Claimant's medical record begins with notes from Crusader Clinic dating to May 11, 2005, which indicate that Claimant was working but had a rash on his feet. (Tr. 165.) On August 3, 2005, November 4, 2005, and January 4, 2006 Claimant had podiatry appointments at Crusader Clinic relating to needed care for his toe nails and calluses on his feet. (Tr. 165.)

On August 11, 2006, Claimant appeared at Crusader Clinic for a blood pressure check and was diagnosed as having hypertension. (Tr. 174.) It was reported that he was taking Norvasc and Nexium. (Tr. 174.) On August 14, 2006, Claimant visited Crusader complaining of acid reflux, nausea, vomiting, weight loss, lightheadedness, and dizziness. (Tr. 165.) He was diagnosed with gastroesophageal reflux disease and hypertension, and was prescribed Nexium and Norvasc. (Tr. 164.) Claimant was seen again on August 15, 2006 for foot pain and a possible ulcer. (Tr. 164, 183.) The lesions on his feet were debrided and his toe nails were trimmed. (Tr. 183.) Claimant was diagnosed with discomfort due to hyperkeratosis, hammering of the toe, and exostosis metatarsalgia. (Tr. 183.) Claimant had a check-up regarding his hypertension at Crusader Clinic on October 4, 2006. (Tr. 174.) On October 17, 2006, Claimant had a follow-up visit regarding his foot pain. (Tr. 182.)He was diagnosed with painful porokeratosis, treated by having the lesions trimmed down on both feet, and asked to return in about nine weeks. (Tr. 182.) On October 24, 2006, Claimant visited Crusader Clinic and Nurse Practitioner Lynn Yontz indicated that he needed tighter control of his hypertension. (Tr. 161.) Claimant was prescribed hydrochlorothiazide and advised to continue with Norvasc. (Tr. 161.) Claimant presented at Crusader Clinic with a cold and trouble breathing on November 9, 2006. (Tr. 160.) He cancelled a follow-up appointment on November 20, 2006 and failed to show up for an appointment on November 25, 2006. (Tr. 160.)

Claimant had follow-up appointments at Crusader Clinic relating to his hypertension or foot care on December 13, 2006, December 19, 2006, January 16, 2007, and March 20, 2007. (Tr. 159.) At the December 19, 2006 visit Claimant reported that he had injured his foot and wanted to know if treatment was available. (Tr. 181.) He stated that he worked at a car wash. (Tr. 181.) Claimant was assessed as having an uncertain foot injury, digital deformities, plantar fat pad atrophy, and onychomycosis (fungal nail infection). (Tr. 181.) On January 16, 2007, Claimant was given ibuprofin for pain related to a plantar wort on his foot. (Tr. 172.)

On May 14, 2007, Claimant underwent a psychological evaluation with Dr. John Peggau, Psy.D. (Tr. 185.) Dr. Peggau noted that Claimant's motor activity, gait, and posture were normal, his mood was euthymic, and his affect was appropriate. (Tr. 185.) Claimant denied any hallucinations but stated that he did hear his deceased son asking him questions about two to three times per week. (Tr. 185.) Claimant was kicked out of school around eleventh grade and had been to jail on four occasions. (Tr. 185.) Claimant reported that he had used cocaine in 2001 and cannabis six months prior to the evaluation. (Tr. 185.) Claimant consumed alcohol only on weekend days and smoked four to five cigarettes per day. (Tr. 185.) Claimant reported that he last worked in 2007 doing auto detailing, but that he quit because they were not paying him the right amount. (Tr. 185-86.) He had previously worked for eight years in automobile detailing but was fired after being accused of stealing something out of someone's car. (Tr. 186.) Claimant described a typical day as getting up and taking his medication, walking around the hallways and up and down the stairs, walking to the library. (Tr. 186.) Dr. Peggau's conclusion was that Claimant had a learning disability, NOS and Cannabis abuse. (Tr. 187.) Dr. Peggau noted that Claimant was not capable of managing his own finances because of his limited mental agility, but was able to understand, remember, sustain concentration and persist in tasks. (Tr. 187.) Claimant was able to interact socially and adapt to work settings. (Tr. 187.)

On July 25, 2007, Claimant underwent a medical examination by Dr. Ramchandani on behalf of the State Agency. (Tr. 188.) Claimant described cramping lumbar back pain that had lasted for five years and was precipitated on bending, lifting and carrying 30 pounds, sitting for one hour, standing for five minutes, or walking less than half a block. (Tr. 188.) Claimant also described sharp and cramping pains in the plantar aspects of both of his feet, which was worsened by weighbearing, walking and standing. (Tr. 188.) Claimant reported having shortness of breath and wheezing attacks once or twice a day that he treated with an inhaler, though he had never been to the emergency room for asthma. (Tr. 188.) Claimant said that he had last worked five years prior the examination. (Tr. 188.) Dr. Ramchandani noted that Claimant's past medical history was remarkable for hypertension, GERD (acid reflux disease), and chronic bronchitis. (Tr. 188.) Claimant's physical examination was unremarkable other than evidence of extensive calluses on both feet and evidence of hallux valgus deformity on both big toes. (Tr. 188-89.) Dr. Ramchandani found Claimant to have osteoarthritis of the lumbar spine, calluses on both feet, severe uncontrolled hypertension, chronic bronchitis with tobaccoism, and a history of GERD. (Tr. 189.)

Dr. Howard Tin, Psy.D., filled out a Psychiatric Review Technique Form and Mental Residual Functional Capacity Form ("Mental RFC") on behalf of the State Agency on August 27, 2007. (Tr. 192, 206.) The Psychiatric Review Technique indicates that Claimant has a 12.02 Organic Mental Disorder described as a Learning History, NOS, and a 12.09 Substance Abuse Disorder described as Cannabis Abuse. (Tr. 193, 200.) Dr. Howard indicated that Claimant had a mild restriction of activities of daily living; moderate difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence, or pace, and no episodes of decompensation. (Tr. 202.)

The Mental RFC indicated that Claimant was moderately limited in the following areas: the ability to understand and remember detailed instructions; the ability to carry out detailed instructions; the ability to maintain attention and concentration for extended periods; the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; the ability to work in coordination with or proximity of others without being distracted by them; the ability to interact with the general public; the ability to accept instructions and respond appropriately to criticism from supervisors; and the ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes. (Tr. 206-07.) Dr. Tin found that Claimant was either not significantly limited or that there was no evidence of limitation in all other areas of the Mental RFC. (Tr. 206-07.) Dr. ...

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