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Glenn D. Beamon v. Michael J. Astrue Commissioner of Social Security.

March 13, 2012

GLENN D. BEAMON, PLAINTIFF,
v.
MICHAEL J. ASTRUE COMMISSIONER OF SOCIAL SECURITY. DEFENDANT,



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

MEMORANDUM OPINION AND ORDER

I. Introduction

Glenn D. Beamon seeks judicial review of the Social Security Administration Commissioner's decision to deny his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act and 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 July 8, 2010. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

Claimant first filed for SSI and DIB on October 13, 2006. (Tr. 127, 132.) He alleges a disability onset date of September 15, 2006. (Tr. 127.) His claim was denied initially and on reconsideration. (Tr. 53, 60.) The Administrative Law Judge ("ALJ") conducted hearings into Claimant's application for benefits on January 27, 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. 23.) The ALJ issued a written decision denying Claimant's application on February 19, 2009, finding that Claimant was able to perform past relevant work as a gas station attendant and a bus driver, and in the alternative, that jobs existed in the national economy in significant numbers that Claimant could perform. (Tr. 19-20.) 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

Multiple Sclerosis ("MS") is an autoimmune disease that affects the brain and spinal cord. Multiple Sclerosis, PubMed Health, http://www.ncbi.nlm.nih.gov/pubmedhealth /PMH0001747/ (last reviewed March 5, 2012). Because MS can affect nerves in any part of the brain or spinal cord, its symptoms may manifest in many parts of the body, and often differ between individuals with the disease. Id. A person with MS may experience muscle symptoms, bowel and bladder symptoms, eye symptoms, sensory symptoms such as numbness, tingling, or pain, or other brain and nerve symptoms. Id. Fatigue is another common symptom as MS progresses, and it often becomes worse in the afternoon. Id.

The Claimant has been diagnosed with progressive-relapsing MS. This type of MS is the least common and is characterized by "a steady progression in disability with acute attacks that may or may not be followed by some recovery." Multiple Sclerosis Health Center, WebMD, http://www.webmd.com/multiple-sclerosis/guide/how-disease-progresses (last reviewed March 5, 2012). The outcome of MS is hard to predict, but it is chronic and incurable. Some medications may slow the progression of MS, and certain lifestyle changes such as good nutrition, planned exercise, assistive devices, and avoidance of fatigue, stress, or illness can be helpful for people with MS. Multiple Sclerosis, PubMed Health, http://www.ncbi.nlm.nih.gov/pubmedhealth /PMH0001747/ (last reviewed March 5, 2012).

Claimant, who was 44 years old at the time of his hearing with the ALJ, was diagnosed with MS in 1996. (Tr. 127, 247.) He completed school through the tenth grade and later obtained a GED. (Tr. 28.) He previously worked as a delivery driver, cashier, satellite dish installer, school bus driver, warehouse worker, gas station attendant, and carwash service technician. (Tr. 28-29, 162-69.)

At the hearing, Claimant testified that he lived by himself in an apartment. (Tr. 27.) He was not working due to the symptoms of his multiple sclerosis, and had no source of income other than a Link card for food. (Tr. 27.)

Claimant described his previous work as a worker in the lawn and garden section of a retail store; a delivery driver for a retail store, transportation companies, and UPS; a gas station attendant; and a car wash service technician. (Tr. 28-29.) He was unable to return to any of the jobs because he would get fatigued, stumble a lot, and developed numbness in his hands. (Tr. 29.) Claimant described how a job that would allow him to sit or be stationary would present a problem because of his weak bladder. (Tr. 29.)

Claimant described his symptoms as varying by the day. (Tr. 30.) They had improved "a little" since he began taking Copaxone in 2007. (Tr. 30.) In warm weather, he is able to walk some without a cane, but uses a prescribed cane in cold weather because his leg gets stiff. (Tr. 30-31, 38.) His right leg drags on the ground when he walks and he has trouble controlling it like he wants to. (Tr. 37.) He has difficulty walking on uneven surfaces and said that his equilibrium felt like it was off. (Tr. 36.) At the hearing Claimant was experiencing stiffness and pain in his right leg, and joint pain in his fingers. (Tr. 32-33.) Claimant also talked about problems with his vision. (Tr. 37.) Bright or fluorescent lights bother him and start to make things look blurry. (Tr. 38.) He had not experienced a flare-up since September 2006. (Tr. 38.) During flare-ups, Claimant's whole body feels tingly and numb and his vision gets worse, though he still experiences some symptoms when not having a flare-up. (Tr. 38-39.)

On a typical day, Claimant watches television or listens to music and sleeps a lot. (Tr. 34.) He does his own cooking, cleaning, dishes, laundry, and grocery shopping. (Tr. 34-35.) He is able to bathe and dress himself, but has trouble with buttons or tying shoelaces. (Tr. 34, 40.) He tries to walk, including to a nearby store that results in a three block walk, but has trouble doing so in the cold. (Tr. 35.) He is able to read with a magnifying glass, and is supposed to get glasses. (Tr. 35.) He attends church twice a month, but does not go out to eat, go to the movies, leave town, or visit family other than on Christmas. (Tr. 35.) He served as an election judge for one day in 2008, which involved a lot of sitting and showing people how to feed ballots into the machine. (Tr. 36.)

The VE described Claimant's past work as a delivery driver, sales associate, furniture delivery driver, satellite dish installer, and the car wash tech job as primarily semi-skilled or unskilled and medium to heavy exertion. (Tr. 41-42.) The job as a bus driver was typically semi-skilled and medium, but the VE believed it was more accurate to say it was semi-skilled and light because it involved mostly seated work. (Tr. 42.) The gas station attendant job was also described as unskilled and light. (Tr. 42.)

The VE testified that a hypothetical individual of Plaintiff's age and work experience with the ability to sit for six to eight hours; stand and walk each for six hours; frequently lift and carry up to ten pounds; occasionally lift and carry up to twenty pounds; occasionally stoop, crawl, climb, crouch, kneel, and balance; and must avoid concentrated exposure to unprotected heights, moving and hazardous machinery, and extreme heat could perform Plaintiff's past relevant work as a gas station attendant, which was unskilled and light, and a bus driver, which was semi-skilled and light as Plaintiff performed it. (Tr. 42-43.) The VE opined that the same hypothetical person could also perform the unskilled light jobs of hand packager, cleaner, cafeteria attendant, and cashier. (Tr. 43.) The ALJ presented a second hypothetical for a person limited to sedentary work who could stand and walk for no more than two hours per day, and could lift and carry only ten pounds. (Tr. 43.) The VE testified that such a person could not perform any of Claimant's past work, but could perform the jobs of bench hand assembler, sorter, and general assembler. (Tr. 43-44.) The VE stated that there were more than 65,000 such jobs in the Chicago area, and more than 100,000 in the State of Illinois. (Tr. 43-44.)

IV. Medical Evidence

Claimant's medical record begins with an emergency room visit to Stroger Memorial Hospital on September 1, 2006, where he complained of right hand parasthesia*fn1 , right chest numbness, left chest tingling, right orbital headaches, and intermittent eye pain. (Tr. 250.) Claimant was noted to have an unsteady gait, loss of balance, a positive Romberg sign*fn2 , and urinary urgency. (Tr. 250-51.) He reported a diagnosis of MS dating back 11 years. (Tr. 250.)

He was prescribed Prednisone*fn3 and scheduled for a follow-up appointment with a neurologist. (Tr. 253.)

Claimant saw Dr. Brannegan, a neurologist, on September 15, 2006. (Tr. 247.) Notes indicate that he initially presented 11 years earlier with generalized numbness and decreased vision in his right eye and had been diagnosed with MS after an MRI in 1996. (Tr. 247.) Claimant was noted to have gait instability, right arm numbness, urinary urgency, facial myokymia, face twitching, and dragging of his right leg. (Tr. 247.) It appears Claimant was advised to undergo an MRI, which took place on October 12, 2006. (Tr. 247, 254.) The MRI revealed findings consistent with MS. (Tr. 254.) Claimant returned to see Dr. Brannegan on December 26, 2006, and was found to have problems with dragging his right leg and visual abnormalities. (Tr. 246.) He was diagnosed as having relapsing progressive MS and Dr. Brannegan made a notation about talking to a social worker regarding disability. (Tr. 246.)

On November 28, 2006, Dr. Virgilio Pilapil, M.D., a state agency reviewing physician, completed a physical residual functional capacity ("RFC") assessment. (Tr. 245.) Dr. Pilapil found the following exertional limitations: occasionally lifting or carrying ten pounds; frequently lifting or carrying less than ten pounds; standing or walking for a total of at least two hours; sitting for a total of about six hours; and unlimited pushing or pulling. (Tr. 239.) Dr. Pilapil also indicated that Plaintiff could occasionally perform the following postural limitations: climbing ramps, stairs, ladders, ropes, and scaffolds; balancing; stooping; kneeling; crouching; and crawling. (Tr. 240.) Dr. Pilapil did not find any manipulative, communicative, or visual limitations, but noted that Plaintiff had occasional near and far acuity with the left eye. (Tr. 241-42.) Dr. Pilapil also found that ...


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