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Nellie Moore v. Michael J. Astrue

April 6, 2012


The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole


The plaintiff, Nellie Moore, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§423(d)(2). Ms. Mueller asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.


Ms. Moore applied for DIB on December 26, 2007, alleging that she has been disabled since January 1, 2001, due to hereditary hemolytic anemias -- or sickle cell anemia -- and discogenic and degenerative disorders of the back (Administrative Record ("R") 45, 80). Her application was denied initially and upon reconsideration. (R. 51, 58). Ms. Moore then filed a timely request for hearing in pursuit of her claim on August 5, 2008. (R. 60).

An administrative law judge ("ALJ") convened a hearing on August 5, 2009, at which Ms. Moore, not represented by counsel, appeared and testified. (R. 24-44). At this hearing, James Radke testified as a vocational expert. (R.40-43). On January 4, 2010, the ALJ issued an unfavorable decision, denying Ms. Moore's application for DIB because she retained the capacity to perform her past sedentary work as a general office clerk. (R. 15-20). The ALJ's decision became the Commissioner's final decision on October 18, 2010, when the Appeals Council denied Ms. Moore's request for review. (R. 1-3). See 20 C.F.R. §§404.955; 404.981. Ms. Moore appealed that decision by filing suit in this Court under 42 U.S.C. §405(g), and both parties consented to jurisdiction here pursuant to 28 U.S.C. §636(c).



The Vocational Evidence Ms. Moore was born on April 18, 1961, making her forty-nine years old at the time of the ALJ's decision. (R. 45). She finished a semester of college, but has no other vocational or specialized training. (R. 29). Ms. Moore is 5' 2" tall and weighs 217 pounds. (R. 28). She has work experience in a commercial bakery, in data entry, and general office work. (R. 41). For the purpose of receiving DIB, Ms. Moore's insured status expired September 30, 2003. (R. 45). She has to prove she was disabled prior to that time. 42 U.S.C. §423(c); Martinez v. Astrue, 630 F.3d 693, 699 (7th Cir. 2011).


The Medical Evidence Ms. Moore contends that she is eligible for DIB due to her sickle cell anemia. (Plaintiff's Brief, at 2).*fn1 Additionally, she contends that she is obese and has hypertension, which should be taken into account as well. (Plaintiff's Brief, at 10-13)

As it stands now, the record, although voluminous, contains precious little evidence to demonstrate what Ms. Moore's condition was prior to September 30, 2003. In fact, in her brief, Ms. Moore is able to unearth just three pages of medical notes pertaining to that time from the 600-page medical record. (Plaintiff's Brief, at 3, 11). On March 12, 2001, Ms. Moore was suffering from a bout of bronchitis. (R. 587-88). Her doctor noted that her blood pressure was stable and that she had sickle cell disease. (R. 587-88). By April 3rd, Ms. Moore's bronchitis had resolved and she was in no pain; her blood pressure was again within normal limits. (R. 588). On April 25th, Ms. Moore had a follow-up examination for her sickle cell disease. At the time, the doctor noted that his "pt feels fine [no] complaints," but said her typical crisis pain occurred in all joints. (R. 589). Ms. Moore had a normal echocardiogram on May 4th. (R. 603). On August 31st, Ms. Moore had a check up for her blood pressure, which was 132/94. She denied any problems with dizziness or vison; she had no edema. (R. 594). On September 14th, her blood pressure was 128/76 and, again, she was asymptomatic. (R. 594). Also in September, Ms. Moore was diagnosed with a cataract in her right eye. (R. 616). Vison was normal in her left eye but 20/50 in her right. (R. 608). With a small myopic shift, she was able to see 20/30.

(R. 608). It was determined that she would be treated conservatively. (R. 616).

That appears to be all the medical evidence from the time prior to September 2003. It's certainly all the evidence -- actually more -- that Ms. Moore cites in her brief. After 2001, there is no record of any treatment until 2005. In January of that year, Ms. Moore had an appointment for a check up with a new doctor. She related how she worked out of her home scheduling appointments for her husband's carpet cleaning business. (R. 226). She had no pain or distress; blood pressure was 120/84 and "well controlled on current medications." (R. 226-27). In November of 2005, Ms. Moore sought treatment for right wrist pain that she thought was due to sickle cell crisis. Hematology revealed it was unrelated. (R. 222). She had a full range of motion in her wrist and some mild tenderness. Blood pressure was normal and it was noted that her hypertension was benign. (R. 222-223). She was diagnosed with DeQuervain's tenosynovitis -- an inflammation of the thumb tendons -- and given a splint. (R. 223). About a month later, she had a steroid injection. (R. 449). At that time, she still had full range of motion and mild tenderness. (R. 449). Ms. Moore points to no other evidence in her brief. (Plaintiff's Brief, at 14, n.10). She cites no record of any treatment for a sickle cell crisis at any time. Although she claims there is evidence in the record that her blood pressure and obesity exacerbate her condition, the evidence she cites says nothing of the kind. (Plaintiff's Brief, at 3-4, citing R. 164, 166, 589, 592-94). Hypertension is invariably referred to as benign. And, although Ms. Moore is clearly obese at about 200 pounds, no doctor appears to have referred to it as an issue -- certainly not in any of the records Ms. Moore cites.

The only mentions of any treatment for sickle cell crisis -- and indeed, any reference to a specific incident whether treatment was sought or not or whether sickle cell crisis was confirmed or not -- comes from the Commissioner's brief. In August of 2006, Ms. Moore had right hip pain caused by a trip to St. Louis where the heat was extreme. (R. 369). There was no weakness or numbness, or pain with rotation of the hip. (R. 372-73).

Ms. Moore complained of sickle cell crisis manifesting as right shoulder pain in January 2007. (R. 299). At the time, it was said she had infrequent admissions for crises, but that they had become more common in the previous year. (R. 297, 209). In August of 2007, Ms. Moore sought treatment for a sickle cell crisis. It was precipitated by an upper respiratory infection and manifested as pain in her right hip. She had a full range of motion in her hip without discomfort.

(R. 216). She was hospitalized for three days until the pain was tolerable on over the counter analgesics. (R. 214-15). Again, her hypertension was characterized as "benign" at that time.

(R. 216). In October of 2007, the treating physician opined that Ms. Moore was ambulatory and able to carry out light or sedentary work. (R. 512-14). She denied any recent sickle cell crises.

(R. 514). She was again said to be capable of sedentary or light work in November 2005. (R. 519). In December of 2007, Ms. Moore complained of tingling in her arms and legs, and felt she was having a sickle cell crisis. Her pain was 6 or 7 out of 10, and she refused pain medication because it was not significant enough. (R. 273). She had normal range of motion in her extremities and normal gait, strength, and sensation. (R. 275). There was no clear lateralization of symptoms and the treating physician felt she was not in pain crisis. (R. 275).

At the end of September 2007, Ms. Moore was admitted to the hospital due to a pulmonary emboli, causing shortness of breath and chest pain. (R. 305). The Agency arranged for Ms. Moore's medical evidence to be reviewed by Dr. Virgilio Pilapil on February 20, 2008, but he determined that there was insufficient evidence from the period before Ms. Moore's insured status expired to determine the severity of her impairments during that time. (R. 554-556). In December 2008, Ms. Moore was diagnosed with pneumonia, and medication was prescribed. (R. 268).

C. The Administrative Hearing Testimony


The Plaintiff's Testimony At the outset of Ms. Moore's hearing, the ALJ explained to Ms. Moore that, because she was applying for DIB and her insured status expired September 30, 2003, she would have to prove she was disabled before that date in order to receive benefits. (R. 26). The ALJ then spoke to Ms. Moore about her right to representation. (R. 27). Specifically, she informed Ms. Moore that it may be to her benefit to obtain representation because it could help her present a case that was most favorable to her. (R. 27). The ALJ said a representative could "help [Ms. Moore] obtain information regarding [her] claim, explain medical terms and explain the proceedings that occur before [the ALJ]." (R. 27). The ALJ explained that a representative can only charge a fee if it is authorized by the SSA, and that there may be certain legal organizations that could help Ms. Moore for free if she met their requirements. (R. 27). The ALJ then asked if Ms. Moore would like her hearing postponed so she could talk with a representative, and took care to tell Ms. Moore that "[i]f after the hearing [she wasn't] happy or [she was] not 100 percent satisfied with the decision that's not the time to say, gee, I wish I had talked to somebody about my case." (R. 28). Ms. Moore said she didn't want a continuance and wanted to proceed without representation. (R. 28).

Ms. Moore testified that she lived in a two-storey house with her husband and foster child. Her husband worked and they received $444 per month for the child. (R. 29). She was "in a lot of pain" and had difficulty bending and balancing. (R. 33). When asked how far she could walk, Ms. Moore testified that she could walk "probably a block" before she needed to stop and catch her breath. (R. 32). She stated that she could stand on her feet for thirty minutes before her hips bothered her, and that she could sit for about an hour before she needed to get up and walk. (R. 32). She thought she could lift about 25 pounds. (R. 32). She had a little difficulty climbing stairs and bending sometimes. (R. 32-33). She had no trouble using her hands. (R. 33). She got up every hour at night to let her blood circulate. (R. 33). She had been doing that for the last fifteen years. (R. 34). She said she was in pain every day but the real bad crises would come with the temperature changing from hot to cold or vice versa. (R. 34). She explained that she went to the hospital five times in 2008, and at least four times in 2009. (R. 35). She couldn't remember how often she went to the hospital in 2001, but she assured the ALJ she had medical records going back that far. (R. 35). She stated that her medications helped her and that they had no side effects. (R. 36).

Ms. Moore was able to go to the grocery store for a few items but her daughter did the major shopping. (R. 36). Ms. Moore did a little dishwashing -- a few cups and bowls -- and her daughter did the laundry. (R. 36). Ms. Moore didn't do any sweeping, mopping, vacuuming, or yard work. (R. 37). She spent most of the day watching TV or talking on the phone. (R. 37). When the ALJ asked her if there was anything else she wanted to tell her, Ms. Moore said that she believed she had covered it. (R. 40).

Ms. Moore said that her sickle cell caused pain in her hips, which she had been experiencing since she was little. (R. 39). She has had eight surgeries due to her disease. (R. 40). She missed work when she was working due to her disease. (R. 40). When the ALJ asked Ms. Moore if she wanted to tell her anything else about her condition, Ms. Moore said, no, she believed they had covered it. (R. 40).

At the conclusion of the hearing the ALJ told Ms. Moore that there was no medical evidence dealing with the time period before September 30, 2003, and that such evidence would be important to her case because of the expiration of her insured status. (R. 43). The ALJ asked Ms. Moore whether she could get any evidence from that time, and said she would leave the record open for thirty days. (R. 44). The ALJ also told Ms. Moore to call if she had difficulty getting the evidence because they could get the evidence for her if the hospital was being uncooperative. (R. 44).


The Vocational Expert's Testimony The vocational expert ("VE"), Mr. Radke, testified that, as a raisin sorter in a commercial bakery, Ms. Moore was doing light, unskilled work. (R. 41). Her data entry work was sedentary and semiskilled. (R. 41). Mr. Radke also testified that, in her work assisting with college scholarships, Ms. Moore was doing sedentary work that was semiskilled. (R. 41).

The ALJ asked whether an individual limited to carrying twenty pounds occasionally and ten pounds frequently, who could stand or walk for six out of eight hours and must avoid exposure to extreme temperature could perform any of Ms. Moore's past work. (R. 41-42). The VE stated that the hypothetical individual would be able to perform her general office clerk position of doing data entry work. (R. 42). He further stated that in the northeastern Illinois area, there were "5,400 mail clerks, 9,300 maid positions, 5,600 hand packers, and 34,500 cashier positions" that also fit those restrictions. (R. 42). When the ALJ changed the hypothetical so that the person could only stand or walk for two out of eight hours, the VE said that there were "1,400 hand packers in this region, 900 ...

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