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Wanda Brent v. Michael J. Astrue

July 17, 2012


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


Claimant Wanda Brent ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal and remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant" or "Commissioner"), denying Claimant's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Claimant raises the following issues: (1) whether the ALJ properly considered the opinions of Claimant's treating psychiatrists; (2) whether the ALJ erred in discounting the opinion of the state agency consulting psychologist and giving significant weight to the state agency reviewing psychologist ; (3) whether the ALJ made a proper credibility finding; (4) whether the ALJ properly evaluated Claimant's post traumatic stress disorder and its vocational impact; and (5) whether the ALJ reasonably found that Claimant could perform a significant number of other jobs given Claimant's limitations in maintaining concentration, persistence, or pace. For the following reasons the Court grants Claimant's motion to reverse or remand the decision of the Commissioner, denies the Commissioner's motion to affirm the Commissioner's decision, and remands the case to the Commissioner for further proceedings consistent with this opinion.


A. Procedural History

Claimant initially applied for DIB and SSI on December 1, 2005, alleging disability onset dates of March 6, 2002 and May 5, 2003, respectively. R. 164-68; 169-71. The Social Security Administration ("SSA") denied her applications on April 5, 2006. R. 122-23, 129-34. Claimant then filed a request for reconsideration, which the SSA denied on May 31, 2006. R. 124-25; 136-45. Thereafter, Claimant requested a hearing before an ALJ. R. 146.

On January 14, 2008, Administrative Law Judge Michael G. Logan ("ALJ") presided over a hearing at which Claimant appeared with her attorney, Rachael King. R. 58-121. Claimant, Frank Mendrick, a vocational expert ("VE"), and Dr. Hugh Savage, M.D., a medical expert ("ME"), testified at the hearing. R. 59. On November 4, 2008, the ALJ issued a decision finding Claimant not disabled under the Social Security Act. R. 15-31. Specifically, the ALJ found Claimant had the residual functional capacity to: lift/carry twenty pounds occasionally and ten pounds frequently; occasionally bend, stoop, crouch, crawl, climb ramps and stairs; never climb ladders, ropes, or scaffolds, or work at unprotected heights; work with a moderate limitation in concentration, persistence, and pace; work with a moderate limitation in social interaction with limited contact with supervisors and minimal contact with co-workers and no public contact; and perform unskilled, simple, repetitive tasks.

R.19-29. The ALJ determined that "there are jobs that exist in significant numbers in the national economy that the claimant can perform." R. 29-30.

Claimant then filed for review of the ALJ's decision to the Appeals Council, which denied Claimant's request on December 10, 2010. R. 1-3. Therefore, the ALJ's decision became the final decision of the Commissioner. Claimant subsequently filed this action for judicial review pursuant to 42 U.S.C. § 405(g).The parties consented to this Court's jurisdiction pursuant to 28 U.S.C. § 636(c) on August 25, 2011. Dkt. 16. An oral argument was held on July 10, 2012.

B. Hearing Testimony - January 14, 2008

1. Wanda Brent - Claimant

At the time of the hearing, Claimant was fifty-two years old and had completed education through the eleventh grade. R. 66. Claimant has past relevant work experience as a loader for UPS. R. 67. In addition to loading trucks, Claimant's prior work experience includes beauty product home sales. R. 69, 72-73. Claimant has not worked as a loader since 2002 when she suffered from a work-related injury. R. 67.

Claimant explained that she suffers from lower back pain that limits her standing, bending, and walking abilities and prevents her from sitting in one position for extended periods, or requires her to change positions or lie down. R. 73-74. At the time of the hearing, Claimant was alternating between taking Tramadol and Darvocet for the pain. R. 75. Claimant testified that the medications make her dizzy, sleepy, and forgetful. R. 80. Claimant alleged that she could stand for twenty minutes at a time for no more than an hour a day and that she could only sit for about thirty minutes in an eight-hour day. R. 81-82.

Claimant further testified that she suffers from depression after witnessing her brother's murder and her son's arrest. R. 74. Claimant explained that she sees a psychiatrist for her depression and takes medication. R. 82. Claimant stated that she is not happy, is forgetful, feels frustrated around people, has a tendency to become angry, and cries every other day. R. 83-84, 94-95. Claimant testified that she saw Dr. Buch every week to two weeks for over a year. R. 91.

Claimant testified that in a typical day her daughter fixes her meals and prepares her medication. R. 85. For some time, Claimant and her sixteen-year old daughter sold Avon products from her home. R. 69. Claimant would take orders and her daughter would prepare the orders for delivery. R. 70. Claimant stopped selling Avon products from her home the year before the hearing. R. 86. Claimant testified that she can't stay focused when she tries to read, bathes herself but does not bother with her hair, and naps during the day but has trouble sleeping at night. R. 86-88. She does not perform household chores or shopping.

R. 89. Claimant was last in contact with her friends more than five years before the hearing, though has contact with family members. R. 88-89.

2. Dr. Hugh Savage - Medical Expert

Dr. Hugh Savage testified as a medical expert. R. 99-115. The majority of Dr. Savage's testimony related to Claimant's physical impairments. Dr. Savage opined that Claimant could perform light work. R. 110.Regarding the side effects of Claimant's medications, Dr. Savage testified that Claimant's pain medications were very unlikely to cause significant drowsiness and that Claimant's antidepressant medication was specifically designed to have the least effect on drowsiness. R. 111. Dr. Savage made clear that he is not a psychiatrist or a psychologist and was not able to render an opinion as to how Claimant's post traumatic stress disorder would affect her performance. R. 113-14. Dr. Savage opined that Claimant would not have a problem with performing simple routine tasks. R. 115.

3. Frank Mendrick - Vocational Expert

Frank Mendrick testified as a vocational expert. R. 72-73, 116-19. The VE classified Claimant's work experience in beauty product home sales as semi-skilled, light work and Claimant's prior work experience as a shipping company loader as unskilled, medium or heavy work. R. 73.

The ALJ presented the VE with a detailed hypothetical person who was younger with Claimant's education and work experience. This person could: lift twenty pounds occasionally, ten pounds frequently; occasionally bend, stoop, crouch, crawl; climb ramps and stairs occasionally; never climb ladders, ropes, or scaffolds; and never work at unprotected heights. This hypothetical person could work with: a moderate limitation in concentration, persistence, and pace, which the ALJ "peg[ged] at eighty-five percent"; a moderate limitation in social interaction; minimal contact with supervisors and co-workers; and no public contact. R. 116-17. The VE testified that this hypothetical person could not perform Claimant's past relevant work. R. 117. The VE further testified that this hypothetical person could perform other unskilled, simple, repetitive, and light jobs that existed in the six-county Chicago area: general assembly (1500 jobs); inspection (800 jobs); and hand packaging (2000 jobs). R. 117-18.

The ALJ then modified the hypothetical to limit the individual to standing and walking only two hours and sitting for a maximum of two hours in an eight-hour day. R. 118. With these modifications, the VE testified that the hypothetical person could only perform part-time work and not engage in full-time competitive employment. Id. The VE further noted that if the hypothetical person in the first hypothetical could not maintain concentration, persistence, and pace for at least eighty percent of the workday, then that would preclude the hypothetical person from all work. Id. Finally, in response to questioning by the Claimant's attorney, the VE testified that no job would allow a person to take regular breaks beyond two rest breaks and one lunch break a day or to lie down at will.

R. 119.

C. Medical Evidence

1. Claimant's Physical Impairments

Claimant does not challenge the physical RFC assessment. Therefore, the Court provides a brief synopsis of Claimant's medical history as it relates to her physical impairments but focuses in more detail on the medical evidence regarding her mental impairments.

Claimant sought treatment from Dr. Jesse Wardlow, M.D. ("Dr. Wardlow"), from August 2000 to September 2005 for facial pain, sinus pain, dizziness, and nasal obstruction.

R. 284-323. Dr. Wardlow observed that despite treatment for Claimant's imbalance, dizziness, and facial pain with comprehensive medical therapy, her ...

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