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Audrey Burton v. Michael J. Astrue

July 13, 2012


The opinion of the court was delivered by: Richard Mills, U.S. District Judge:


Monday, 16 July, 2012 09:54:04 AM Clerk, U.S. District Court, ILCD


This is an action for judicial review of the final decision of the Commissioner of Social Security (the Commissioner), finding that Plaintiff was not entitled to Disability Insurance Benefits (DIB) or Supplemental Security Income (SSI) under Titles II or XVI of the Social Security Act. Pending before the Court are the Plaintiff's Motion for Summary Judgment and the Commissioner's Motion for Summary Affirmance.


The Plaintiff, Audrey Burton, applied for DIB and SSI in January of 2007, alleging that she became disabled on August 24, 2006. Her onset date was later amended to April 1, 2007. The Plaintiff's applications were denied initially and upon reconsideration. Following a hearing before an administrative law judge (ALJ), on October 9, 2009, the ALJ found that Plaintiff was not disabled and denied her claim because she could perform a significant number of jobs in the national economy. For purposes of judicial review, the ALJ's decision became the Commissioner's final decision on April 11, 2011, when the Appeals Council denied her request for review. Pursuant to 42 U.S.C. §§ 405(g) and 1383(c), the Plaintiff seeks review.


A. Plaintiff's history

The Plaintiff was born on November 10, 1957. She has a tenth grade education. The Plaintiff has work experience as a cashier, nurse aid, floor supervisor and photographic technician.

The Plaintiff alleges she became disabled because of osteoarthritis, knee problems, depression, high blood pressure, diabetes, and asthma. The Plaintiff's depression was controlled with medication. Her problems resulted in difficulty with sitting, standing, walking, lifting, climbing and carrying. The Plaintiff testified that she uses a cane to walk. Moreover, she could stand for only a few minutes, sit for thirty to forty minutes, and walk for about 20 to 30 feet. She could alternate between sitting and standing for one hour, and then had to lie down. The Plaintiff testified that her knee would sometimes swell late during the day. She alternated between icing and heating the knee. In a typical day at home, she kept her legs elevated on a pillow for most of the day.

When she applied for DIB and SSI, the Plaintiff listed her height as 5'2" and weight as 302 pounds. James Bohan, M.D., was the Plaintiff's primary care physician. The office notes prepared in conjunction with the Plaintiff's appointments with Dr. Bohan sometimes provided that Plaintiff was "obese" or "morbidly obese."

The Plaintiff alleges that her A1C*fn1 showed consistent problems effectively controlling her diabetes. In February 2006, it was 8. Four months later, it was 8.1 and her blood sugar around the same time was 230.

In July 2007, her A1C level was 8.1. It was 8.3 in January 2008 and was 9.0 in September 2008. In February 2009, the Plaintiff's A1C level was 7.6. At the time, her blood sugar level was 181. In August 2009, her blood sugar level was 229. There is no A1C test in the record with a level at or below that which is (usually 7 or less) deemed "good control" for a diabetic.

In February 2010, the Plaintiff was diagnosed as having joint effusion and subcutaneous swelling in her knee. A September 2006 MRI revealed moderate degeneration and torn ligaments. A contemporaneous x-ray showed degeneration of the knees, particularly the right knee. In October 2006, the Plaintiff was told by Harvey Scott, M.D., that she should limit work to five 1/2 days per week--half days, five days per week. In March 2007, after she had been off work, the Plaintiff was released by Dr. Bohan to return to work two days per week for no more than six hours per day and primarily in a seated position.

After the Plaintiff's alleged onset of disability, on May 7, 2007, Marion Panepinto, M.D., a State agency physician, examined the record and opined that Plaintiff could perform light work that did not involve climbing ladders, ropes, or scaffolds; only occasionally climbing ramps and stairs, kneeling, crouching and crawling; and she should avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. Dr. Panepinto specifically noted the Plaintiff's allegations of disability due to osteoarthritis, knee problems, high blood pressure, diabetes, and breathing problems. Moreover, he was aware of the Plaintiff's history of knee pain, obesity, and recent treatment with Dr. Scott.

On August 2, 2007, four months after the Plaintiff's alleged onset date, Dr. Bohan released her to return to work. On September 4, 2007, Ernst Bone, M.D., reviewed the record and affirmed Dr. Panepinto's opinion. As previously noted, Dr. Bohan treated the Plaintiff for a number of medical problems. On May 14, 2008, Dr. Bohan again referred the Plaintiff to Dr. Scott due to Plaintiff's history of knee pain complicated by obesity. On June 25, 2008, the Plaintiff told Dr. Bohan that she felt better and was able to be more active. Her respiration was even and un-labored. The Plaintiff had some pedal edema, but an otherwise unremarkable examination.

By March 2008, the Plaintiff's knees had clinically observed crepitance. She was referred to an orthopedic specialist. Barry Werries, M.D., examined the Plaintiff on July 21, 2008. Dr. Werries noted that two years earlier, the Plaintiff had fallen and injured her knee and had experienced pain off and on, and in the past six months had recurrent pain. The Plaintiff complained of feeling popping and catching in her knee and described her pain as moderate, rating it as a five on a ten-point scale. She had limited motion in her knees, but no ligamentous instability. Dr. Werries observed that Plaintiff walked with an antalgic gait. Dr. Werries determined that Plaintiff had osteoarthritis and an x-ray revealed spurring and narrowing of the joint space.

The Plaintiff also had gout, which affected her right great toe. She saw a specialist for sleep apnea, who advised the Plaintiff regarding better compliance, the importance of weight loss and not to drive when tired. She repeatedly complained of knee pain to Dr. Bohan. In 2008, she developed clinically observed edema of her feet and ankles. In February 2009, the Plaintiff fell and injured her right knee. She injured her left knee when she fell in December 2009. An MRI revealed osteochondral lesions and a joint effusion. There were also irregularities of the joint space, tricompartmental degeneration, and a focal chondral defect. Dr. Bohan's records indicate that he prescribed vicodin for pain, in addition to anti-inflammatories.

In February 2009, the Plaintiff advised Dr. Bohan that her blood sugars were 125 to 150 in the morning and 77 to 160 in the afternoon. She noted her blood sugars were better and that she was trying to exercise.

On August 27, 2009, the Plaintiff was seen in the emergency room for congestion. She was assessed with an upper respiratory injection, given medication, and discharged in stable condition.

The Plaintiff had positive tinel's and Phalen's signs in her right wrist. The Commissioner alleges that although the Plaintiff reported having arthritis and carpal tunnel syndrome in her hands, she did not have much trouble using kitchen tools, opening twist lids on jars or food packages, turning pages of a book or newspaper, dialing a phone, picking up a coin, or using a pencil.

B. Hearing testimony

In a report to the agency, the Plaintiff stated that she was able to clean, vacuum, dust, do laundry, and do yard work. The Plaintiff testified that she was able to drive, though she has difficulty getting into the car and is unable to do much driving. Although it is difficult for her to get out of the bath tub, the Plaintiff is able to care for her personal hygiene. Moreover, it takes longer for the Plaintiff to dress herself. She says she is out of breath by the time she finishes. The Plaintiff has difficulty with grocery shopping and uses a scooter. In terms of household chores, she has to sit when mopping or sweeping. The Plaintiff testified that she vacuums rarely--once or twice a month--because of problems standing for long periods of time. The Plaintiff makes the bed by "yank[ing] the covers up."

At the hearing, the Plaintiff testified that she was 51 years old, 5'2" tall and weighed 298 pounds. She stopped working altogether in May 2008. During the last year of her job, the Plaintiff requested that her hours be reduced, stopped working as a photo processor, and was assigned to overnight cashiering so that she could sit when not assisting customers. She had difficulty working as a cashier when she had to stand because she needed her cane, which slowed her down. The Plaintiff complained that using her hands became increasingly difficult because of problems with arthritis and carpal tunnel syndrome. The swelling in her extremities increased as the day progressed. As a result, the Plaintiff spent much of the time on the couch with her legs elevated. To deal with her swelling, the Plaintiff took furosemide, which she said caused very frequent urination--sometimes every five minutes. The Plaintiff testified that her pain affected her ability to concentrate.

A vocational expert, Ron Malik, testified that if a person of Plaintiff's age, education and past work was limited to sedentary work with a sit/stand option, she could not perform any of her past relevant work. However, he stated that her cashier work "had skills that transfer to sedentary cashier positions." There are two such positions, which are described in the Dictionary of Occupational Titles as 211.482-010 and 211.482-014. Malik testified there are over 19,000 such positions in Illinois and over 450,000 in the national economy. ...

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