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Michelle T. Merritt v. Michael J. Astrue

July 2, 2012

MICHELLE T. MERRITT PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Claimant Michelle T. Merritt ("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 both Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Claimant raises the following issues in support of her motion: (1) whether the ALJ properly weighed the opinions of Claimant's treating physician in her finding of Claimant's residual functional capacity ("RFC"); (2) whether the ALJ's credibility finding regarding Claimant's testimony was patently wrong; and (3) whether the ALJ properly relied upon testimony of the vocational expert to conclude that a significant number of jobs exist which Claimant can perform. For the following reasons, the Court denies Claimant's motion for summary judgment or remand the decision of the Commissioner and grants the Commissioner's motion to affirm the same.

I. BACKGROUND FACTS

A. Procedural History

Claimant initially filed for DIB and SSI on January 12 and 18, 2007, respectively, alleging a disability onset date of July 2, 2003. R. 137-39; 142-44. The Social Security Administration ("SSA") denied her application on April 11, 2007. R. 92-96. Claimant then filed a request for reconsideration, which the SSA denied on March 7, 2008. R. 98-101. Shortly thereafter, Claimant requested a hearing before an Administrative Law Judge. R. 102-03.

On November 19, 2009, Administrative Law Judge Judith S. Goodie ("ALJ") presided over a hearing at which Claimant appeared with her attorney, Violet Borowski. R. 40-83. Claimant and Michelle Peters, a vocational expert, testified at the hearing. Id. On December 30, 2009, the ALJ rendered a partially favorable decision finding Claimant disabled for the purposes of both DIB and SSI between January 1, 2006 and December 31, 2006. R. 16-39. From the alleged onset date of July 2, 2003 through December, 31 2005, and from January 1, 2007 through the date of the decision, the ALJ found Claimant not disabled. R. 30.

Claimant then filed for review of the ALJ's decision to the Appeals Council, which was denied on September 1, 2011, making the ALJ's decision the final decision of the Commissioner. R. 2-7. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g). An oral argument was held on June 18, 2012.

B. Hearing Testimony -- November 19, 2009

1. Michelle T. Merritt -- Claimant

At the time of the hearing, Claimant was 44 years-old, right-handed, and living with her sister. R. 48, 50, 137. Claimant stood 5'4", weighed 226 pounds, and had completed education through the twelfth grade. R. 53, 197, 205. Her most recent relevant work experience included positions as a homecare worker and a warehouse package auditor. R. 46-47. Claimant has not worked since December 2005 when she reinjured her left shoulder at work. R. 47.

During the hearing, Claimant explained that she has had three surgeries on her left arm. The first surgery occurred in 2003 and involved the insertion of a metal plate into her left forearm. R. 58. The second and third surgeries were both on her left shoulder. R. 57. Claimant testified that she still has constant pain in her left shoulder rating "between a five and a six," out of ten, even when she is not using that shoulder. R. 61. When she takes her medication, that pain decreases to "about a three or four." Id. Claimant testified that she takes a Tylenol and muscle relaxer every four to six hours. R. 62.

Claimant asserted that her activity is limited by both shoulder pain and the side effects of prescription drugs used to quell that pain. While she can drive and go to the store Claimant alleges that she gets "a sharp pain" when she elevates her arm. R. 49-50. As a result, her ability to perform household chores, such as cooking, cleaning, and laundry, is "very limited." R. 49-50, 52. When asked if she "ever lift[s her arm] above [her] shoulder level," Claimant answered "No." R. 60. Claimant confirmed that she can lift a gallon of milk with her right hand. R. 54.

Claimant stated that, due to her shoulder pain, she can stand for only "about a half hour" before needing to sit down, and she can sit for "at least 30 minutes" before needing to stand up. R. 54, 66. Claimant does not take walks or exercise. R. 53. She can walk approximately one block before having to rest due to shortness of breath. R. 53-54.

Claimant's medications, the muscle relaxer in particular, make her drowsy. R. 50. She testified that she sleeps up to four hours after each dose. R. 45, 52, 61-63. When she wakes up, she eats something, takes another dose, and goes back to sleep. R. 63. Claimant confirmed that she did not visit her doctor between April 2008 and August 2009. R. 55.

2. Michelle Peters -- Vocational Expert ("VE")

Michelle Peters testified as a vocational expert. The VE described Claimant's past relevant work of home care, characterized as a home health care provider, as low end, semi-skilled work performed at the medium demand level. R. 67. Claimant's warehouse auditor position would be similar to a shipping and receiving clerk, which is categorized as a semi-skilled occupation performed at both the medium and heavy levels of physical demand. Id.

The ALJ first described an individual of Claimant's age, educational background, and work experience with the following limitations: "to lift and carry no more than 10 pounds, to sit up to six hours; stand and walk up to six hours; occasional pushing and pulling with the left upper; no reaching with the left above the shoulders, the left is the non-dominant; occasional stooping, crouching, and kneeling; no crawling; no ladders." R. 68. The VE replied that the hypothetical individual could not perform Claimant's past work but the following positions are available in the national economy: order clerk, of which there are 1800; cashier, of which there are 1200; and inspection positions, of which there are 1800. The VE testified that the first hypothetical described a limited range of light work. R. 68-69.

In the second hypothetical, the ALJ further limited the same hypothetical individual to only be able to sit for thirty minutes and to stand for one hour at a time. R. 69. The VE testified that this would describe sedentary work. Id. This hypothetical person could perform the following jobs: assembly worker, of which there are 1500 available positions; inspection worker of which there are 1200 available positions, and information clerk, of which there are 950 available positions. Id.

The ALJ then added an additional limitation, that of only occasional use of the left, non-dominant upper extremity for fine and gross manipulations. R. 70. The VE testified that when this limitation is added to the first hypothetical-light work-the order clerk, cashier, and inspection positions would be eliminated, but information clerk, of which there are 2000 positions, and hostess, of which there are 2500 positions, would be available. Id. The VE explained that she did not originally cite these positions with regard to the first hypothetical because the additional limitations changed the dynamic of the question. R.72-74. When the same left upper extremity limitation was added to the second hypothetical-sedentary work-the VE testified that only 950 information clerk positions would be available. Id. The ALJ inquired, and the VE confirmed, that her testimony was consistent with the Dictionary of Occupational Titles (DOT). R. 74. The sit/stand option included in the second hypothetical was the only limitation not defined in the DOT and therefore based on the VE's experience. Id.

After reviewing Dr. Hanna's RFC Questionnaire, the ALJ inquired about how much time an individual could be off task while performing these jobs. For the relevant positions, a person would be required to be on task 85-90% of the time. R. 79. The average tolerated amount of absence from work is one and three quarter days per month. Id.

Claimant's counsel posed an additional hypothetical, based largely on Dr. Hanna's RFC Questionnaire. Claimant's counsel described a hypothetical person of Claimant's age, education, and work experience who could sit or stand for forty-five minutes before needing to change positions, stand for a total of two hours in an eight-hour work day, take unscheduled breaks of approximately fifteen minutes, lift less than ten pounds frequently, use the right hand, fingers, or arm for no more than seventy percent of the day and use the left hand, fingers, and arm for no more than fifty percent of the day. R. 80. The VE testified that this person would not be able to sustain employment. Id. When the fifteen-minute breaks were replaced by the condition that the person could be absent for more than four days per month, the VE indicated that positions would not be available. R. 82.

C. Medical Evidence

1. Dr. John D. Sonnenberg, M.D. -- Midland Orthopedic Associates

Claimant's medical records date back to July 21, 2003, when she sought medical treatment at Midland Orthopedic Associates after tripping over a carpet roll at work, falling on her left wrist, and suffering a hyperextension injury to that wrist. R. 246. X-rays and arthrograms ruled out fractures and dislocations, effectively narrowing the likely source of her pain to "ulnar abutment syndrome secondary to fall." Id. Claimant tried steroid injections, oral medication, and therapy to subdue the pain, "all to no avail." R. 247. On August 26, 2003, Dr. John D. Sonnenberg, M.D. ("Dr. Sonnenberg"), recommended and performed outpatient ulnar shortening ("osteotomy") of the left wrist. R. 283. On September 11, 2003, he removed the sutures and put her in a short arm cast. R. 247.

Dr. Sonnenberg continued to monitor Claimant's recovery for nearly one year after the surgery. R. 248-53. Healing and initial progress in a prescribed work hardening program were good until Claimant began having pain in both of her shoulders in early February 2004.

R. 248-49. X-rays showed subacromial spurs on both shoulders, the one on the right larger than the one on the left. R. 249. At that point, Dr. Sonnenberg opined that Claimant had "maxed out in her work hardening program," and could lift forty pounds occasionally. R. 250.

Due to Claimant's lack of progress, Dr. Sonnenberg ordered an MRI in April 2004 which showed shoulder impingement syndrome. R. 250-51. Claimant had some initial success in reducing the impairment with oral medication and steroid injection. Id. Dr. Sonnenberg's notes in July 2004 reflect a discharge summary from the Case Manager at Mercy Work Capacity Program which indicates that Claimant had reached a "plateau" of lifting between thirty-five and forty pounds. R. 252, 424. The Case Manager recommended, and Dr. Sonnenberg agreed, that Claimant be discharged and attempt to work with accommodation. Id.

2. Dr. Pietro Tonino, M.D. -- Loyola University Medical Center

In September 2004, Claimant decided to discontinue treatment with Dr. Sonnenberg and continue under Dr. Pietro Tonino, M.D. ("Dr. Tonino"), who Claimant had already seen twice. R. 253, 359-63. Following a visit on August 2, 2004, Dr. Tonino recommended restrictions of ten pounds lifting and no overhead or repetitive use of the left upper extremity without subacromial decompression surgery. R. 360. On November 4, 2004, Dr. Tonino performed Claimant's second surgery, a left shoulder decompression surgery with rotator cuff repair. R. 385.

After the surgery, Dr. Tonino routinely described Claimant as doing either well or extremely well and noted that she felt better than she did prior to surgery. R. 365-70. In April 2005, Claimant had "some restrictions with ten pounds lifting overhead with the left arm" but was progressing well. R. 370. Claimant then began another work hardening program under the same Case Manager at Mercy. R. 426-28. As of June 16, 2005, Claimant was "at maximal medical improvement" and had returned to work without restrictions. R. 385. According to the Case Manager, Claimant was able to lift eighty pounds from floor to waist. R. 427.

Claimant injured her left hand in October 2005. R. 384. In mid-January 2006, Claimant further "aggravated her left shoulder at work . . . when she hit some metal object with her arm." R. 383. A February 13, 2006 MRI showed a "possible recurrent rotator cuff tear and a small fenestrated tear" that indicated arthroscopic intervention. Id. By March 7, 2006, Claimant was receiving workers compensation, and was cleared for surgery on her left shoulder. R. 456. Claimant underwent her third and final surgery-arthroscopic ...


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