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Robert Hunt v. Michael J. Astrue

March 26, 2012


The opinion of the court was delivered by: James F. Holderman, Chief Judge:


Plaintiff, Robert E. Hunt ("Hunt"), seeks judicial review of a final decision denying his claim for Supplemental Security Income ("SSI") disability insurance benefits under Title XVI of the Social Security Act. Hunt has filed a Motion for Summary Judgment (Dkt. No. 25) and seeks a judgment reversing or remanding the final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner also filed a Motion for Summary Judgment (Dkt. No. 34) seeking to have the Commissioner's final decision affirmed. For the reasons set forth below, Hunt's motion is denied, the Commissioner's motion is granted, and the Commissioner's final decision is affirmed.


On October 30, 2007, Hunt filed a Title II application for a period of disability and disability insurance benefits, alleging a disability that began January 9, 2007. (9/8/2009 ALJ Decision; R. at 10.)*fn1 Hunt's claim was first denied by the Social Security Administration on February 13, 2008, and was denied upon reconsideration on July 9, 2008. (Id.) On July 17, 2008, Hunt filed a written request for a hearing in front of an administrative law judge ("ALJ") pursuant to 20 C.F.R. § 404.929. (Id.)

On March 31, 2009, a hearing was held in front of ALJ Shirley Moscow Michaelson. (Id.) ALJ Michaelson heard testimony from Hunt, who was represented by attorney Agustin G. Garcia during the proceedings. (Id.) ALJ Michaelson also heard testimony from impartial medical expert Walter J. Miller Jr., MD ("ME") and from impartial vocational expert Lee O. Knutson ("VE"). (Id.) On September 8, 2009, ALJ Michaelson ruled that Hunt was not entitled to SSI disability insurance benefits because he was not disabled according to the guidelines found in sections 216(I) and 223(d) of the Social Security Act. (9/8/2009 ALJ Decision; R. at 10-21.)

Hunt filed a request for review of ALJ Michaelson's September 8, 2009 ruling with the Social Security Administration's Appeals Council, and his request was denied on March 12, 2010. (3/12/2010 Order; R. at 1.) Accordingly, the prior ruling by ALJ Michaelson became the Commissioner's final decision. (Id.) On May 10, 2010, Hunt filed a complaint in this court seeking judicial review of the Commissioner's final decision. (Dkt. Nos. 1, 9.)


Hunt was born August 6, 1958. Hunt is a high school graduate and also has some college education, although he did not earn a college degree. Hunt was last employed by DHL, where he drove a delivery route and also routinely assisted in unloading air cargo containers weighing up to twelve-hundred pounds. Hunt has previous experience working as a printing press operator.

On January 9, 2007, while making deliveries, Hunt fell down a flight of stairs and "flipped over head over heels" landing on his left shoulder. (3/31/2009 Hr'g Tr. (Hunt); R. at 39.) As a result of the fall, Hunt began experiencing significant pain in his left shoulder. The left shoulder injury was first diagnosed on January 9, 2007, as a strain by a company doctor. On February 8, 2007, Hunt's treating physician, Daniel C. Newman, MD ("Dr. Newman"), diagnosed Hunt as having suffered inflammation and an injury to the rotator cuff of his left shoulder, as well as tenderness "over the os acromiale defect." (2/8/2007 Newman File Letter; R. at 203.) Dr. Newman recommended physical therapy at that time. Two months later, after physical therapy and work conditioning failed to alleviate Hunt's shoulder pain, Dr. Newman recommended surgery as the next course of treatment. (4/17/2007 Newman File Letter; R. at 198.)

Hunt had two surgeries performed on his left shoulder: one on April 27, 2007 and another on July 6, 2007. After the second surgery, Hunt again participated in physical therapy until the end of October, 2007. Hunt terminated physical therapy on the recommendation of his physical therapist that there was nothing more that could be done for Hunt in that setting. (3/31/2009 Hr'g Tr. (Hunt); R. at 43.) On October 16, 2007, Dr. Newman recommended conducting a Functional Capacity Evaluation ("FCE") of Hunt's left shoulder. (10/16/2007 Newman File Letter; R. at 189.) Hunt filed his initial application for Social Security disability benefits on October 30, 2007.

After reviewing Hunt's FCE on November 13, 2007, Dr. Newman noted "some inconsistences" that resulted from Hunt's refusal to perform certain components of the evaluation out of fear of re-injuring his left shoulder. (11/13/2007 Newman File Letter; R. at 188.) Specifically, Hunt refused to attempt to lift thirty pounds with his left arm. (Id.) Dr. Newman concluded that the results of the FCE were not "entirely valid," and opined that Hunt "is able to lift more [than 30 pounds] with double lift but not with the single arm." (Id.) Also on November 13, 2007, Dr. Newman determined that Hunt's left shoulder had reached its maximum medical improvement ("MMI") and he recommended that Hunt's previous restrictions-which Dr. Newman found to be "consistent with the recommendations of the Functional Capacity Evaluation"-become permanent. (Id.) These restrictions limited Hunt to performing only "light duty" work. (9/18/2007 Newman File Letter; R. at 191; 3/15/2007 Newman File Letter; R. at 200.)

On February 4, 2008, state disability examiner Vidya Madala, MD ("Dr. Madala") performed a residual functional capacity assessment of Hunt. Dr. Madala opined that Hunt could frequently lift ten pounds, could occasionally lift twenty pounds, and could occasionally reach overhead with his left arm. (2/4/2008 Madala Report; R. at 236, 238.) Hunt returned to his previous employment with DHL on April 2, 2008, but only worked for two days before he was advised by a company doctor to return to light duty. Dr. Newman likewise advised Hunt "to go back to work with the previously outlined restrictions and see how he tolerates it." (4/8/2008 Newman File Letter; R. at 210.)

On December 8, 2008, Hunt was involved in a rollover car accident which increased the pain in Hunt's left shoulder. After examining Hunt on January 6, 2009, Dr. Newman found no new significant injury to Hunt's left shoulder. (1/6/2009 Newman Clinic Note; R. at 266.) Dr. Newman recommended that Hunt renew his anti-inflammatory medication and physical therapy.

(Id.) Hunt did not pursue this course of treatment, however, because he did not have health insurance to cover the expenses. (3/31/2009 Hr'g Tr. (Hunt); R. at 49.)

A. Testimony at the March 31, 2009 Hearing

At the March 31, 2009 hearing, Hunt described the pain he experienced from January 2007 through November 2007 as a "shooting pain from my elbow up to my shoulder" and, on days it rained, as a constant pain rated as a five on a scale of one to ten. (3/31/2009 Ht'g Tr. (Hunt); R. at 45.) Dr. Newman initially prescribed Vicodin for Hunt's pain control, but Hunt discontinued its use after "about a week or a week-and-a-half" due to unspecified side effects. (Id.) At the time of the March 31, 2009 hearing, the only pain medication that Hunt relied upon was over-the-counter Aleve.

Hunt lives with nine other members of his family and is primarily in charge of driving his kids to school, although at times he experiences a "shooting pain" and "will have to stop when I'm doing and pull over." (3/31/2009 Hr'g Tr. (Hunt); R. at 51-53.) Hunt also shops, cooks, and washes dishes for his family. Hunt has no restrictions on how much he can stand or walk, and he testified at the March 31, 2009 hearing that "currently right now I could probably [lift] 30 pounds max with either hand." (3/31/2009 Hr'g Tr. (Hunt); R. at 44.) Hunt further testified that "after about fifteen minutes or so of repetitive motion I have to take a break," and he noted that "three to four times a day" he experienced a strong ache lasting as long as fifteen minutes. (3/31/2009 Hr'g Tr. (Hunt); R. at 54, 65.) Hunt also testified that, due to his injury to his left shoulder, he tended to favor his right shoulder. (3/31/2009 Hr'g Tr. (Hunt); R. at 57.) In Hunt's estimate, because his right shoulder has been overworked, it now operates at only eighty to ninety percent of normal. (Id.) Finally, Hunt also noted problems with concentration and an inability to make a firm grip or write well with his dominant left hand. (3/31/2009 Hr'g Tr. (Hunt); R. at 55-56, 58-61.)

The ALJ heard testimony from the ME at the March 31, 2009 hearing, who testified via telephone. The ME explained Hunt's condition as "a guy who had left shoulder pain who developed capsulitis,*fn2 and who had surgery for it, but who probably got the capsulitis back." (3/31/2009 Hr'g Tr. (ME); R. at 66.) The ME also noted that the "mildly positive" impingement currently suffered by Hunt in his left shoulder could "affect the motion of the arm," even though "there is no nerve damage done . . . [and] the reflexes, and the arm motion, and the size of the muscles and everything are normal." (3/31/2009 Hr'g Tr. (ME); R. at 79-80.) The ME testified that Hunt could stand for "six hours easily" and that he could lift twenty pounds occasionally and ten pounds frequently with his non-dominant hand. (3/31/2009 Hr'g Tr. (ME); R. at 68.) In the ME's opinion, Hunt could do close-up work using his left wrist and elbow, but he would not be able to perform any frequent extended reaching or overhead lifting with his left arm. (3/31/2009 Hr'g Tr. (ME); R. at 69-70.) The ME also agreed with ALJ Michaelson that Hunt could not perform any duties that required crawling. The ME declined to comment on Hunt's complaints regarding his left hand, noting "there is nothing in the record anywhere about it." (3/31/2009 Hr'g Tr. (ME); R. at 67-68.)

At the March 31, 2009 hearing, the VE testified as to the number of jobs that were available in the Chicago primary metropolitan area for an individual with Hunt's restrictions and past relevant work history. The VE opined that there were 8,000 available information clerk positions, 4,000 available parking lot attendants positions, and 500 available usher positions, all of which could be classified as "light." (3/31/2009 Hr'g Tr. (VE); R. at 74-76, 81-82.) Although the official Dictionary of Occupational Titles's ("DOT") description of the "light" information clerk position calls for "frequent reaching," the VE disagreed with this requirement based on his own observations and opined that the position actually required only occasional use of the hands. (3/31/2009 Hr'g Tr. (VE); R. at 77-78, 83-86.) At the "sedentary" level, the VE testified that there were 1,700 available information clerk positions and 1,800 available surveillance system monitor positions. (3/31/2009 Hrg' Tr. (VE); R. at 77-78.) The VE also opined that an individual who was "off task" for fifteen minutes each hour "would not be able to sustain employment." (3/31/2009 Hr'g Tr. (VE); R. at 79.) Finally, although Hunt's counsel argued that the VE erred by using data assembled in 2007, the VE testified that the numbers "should fit" with the 2009 economy. (3/31/2009 Hr'g Tr. (VE); R. at 86-87.)

B. Additional Evidence Considered by ALJ Michaelson On April 20, 2009, consistent with ALJ Michaelson's direction, Hunt was examined by M. S. Patil, MD ("Dr. Patil"). In his assessment, Dr. Patil noted that Hunt had a reduced range of motion in his knees and shoulders, but ultimately determined that Hunt could lift and carry between twenty-one and fifty pounds "frequently," e.g. "from one-third to two-thirds" of the work day. (4/20/2009 Patil Report; R. at 253, 255.) Dr. Patil noted no difficulties in Hunt's use of either hand for purposes of fine and gross manipulative movements, and concluded that Hunt was capable of "frequent" use of both hands for all types of reaching-including overhead reaching-and for handling, fingering, feeling, and pushing/pulling. (4/20/2009 Patil Report; R. at 253, 257.) Dr. Patil also determined that Hunt could sit for four hours without interruption, and that he could stand and walk for three hours without interruption. (4/20/2009 Patil Report; R. at 256.) Dr. Patil deemed Hunt capable of standing, sitting, and walking for a total of six hours a day in each capacity. (Id.)

C. ALJ Michaelson's September 8, 2009 Decision In reaching her September 8, 2009 disability determination, ALJ Michaelson employed the procedure set forth by the Social Security Administration in 20 C.F.R. § 404.1520(a). Under this analysis, an ALJ must engage in a five-step inquiry, asking: "1) is the claimant presently unemployed; 2) is the claimant's impairment or combination of impairments severe; 3) does the impairment meet or exceed any of the list of specific impairments . . . that the Secretary acknowledges to be so severe as to preclude substantial gainful activity; 4) if the impairment has not been listed by the Secretary as conclusively disabling, is the claimant unable to perform his or her former occupation; and 5) if the claimant cannot perform the past occupation, is the claimant unable to perform other work in the national economy in light of his or her age, education and work experience." Young v. Secretary of Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992). ...

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