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Kisha D. Adams v. Michael J. Astrue

July 20, 2012

KISHA D. ADAMS, PLAINTIFF,
v.
MICHAEL J. ASTRUE,COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Kisha Adams seeks review of the final decision of the Commissioner of the Social Security Administration, denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 423(d)(2), and Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). Ms. Adams asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming it.

I.

THE PROCEDURAL HISTORY OF THE CASE

Ms. Adams applied for Disability Insurance Benefits and Supplemental Security Income on July 8, 2008, alleging that she had been disabled since July 11, 2007. (Administrative Record ("R.") 51). Her claims were initially denied on September 15, 2008, and again, upon reconsideration, November 24, 2008. (R. 51). Ms. Adams then requested an administrative hearing. (R. 51). An Administrative Law Judge ("ALJ") presided over the hearing at which Ms. Adams, represented by counsel, appeared and testified. (R. 51). On October 29, 2009, the ALJ issued a decision that denied Ms. Adams' claims. (R. 48). Ms. Adams then requested review by the Appeals Council, which was denied on October 29, 2010. (R. 1). Ms. Adams has appealed that decision to the federal district court under 42 U.S.C § 405(g), and the parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).

II.

THE EVIDENCE

A.

The Vocational Evidence

Ms. Adams was born on October 18, 1981, and was twenty-eight at the time of the decision by the ALJ. (R. 46). She lives with her four children, aged 8, 4, 3, and 1, for whom she is the sole caretaker. (R. 21). She has completed high school, and also received a certificate in the security field. (R. 22). Ms. Adams was laid off from her last position as a security guard in 2007, after her request to stand less often was denied. (R. 22-23). She has not worked since 2007. (R. 150).

B.

The Medical Evidence

In July 2008, Ms. Adams appeared for an examination related to a cough, and Anand Karsan, M.D., observed a normal range of motion in the extremities and no neurological symptoms. (R. 242). Later in July, Garrett Yam, M.D. examined Ms. Adams and observed muscle spasm of the lumbar spine as well as a positive straight leg raising test. (R. 237). A subsequent lumbar spine MRI revealed mild degenerative changes, causing a mild degree of canal stenosis with no significant foraminal stenosis. (R. 244). Shortly afterward, Ms. Adams participated in a Physical Work Performance Evaluation which showed that she is able to perform physical work at the sedentary level, as defined by the U.S. Department of Labor in the Dictionary of Occupational Titles ("DOT"). (R. 231). Ms. Adams' level of participation was noted as "reluctant" and "submaximal." (R. 231-33). The evaluation also notes that she did not see herself ever working again. It was suggested that Ms. Adams would benefit from vocational counseling. (R. 233).

In September 2008, Frank Jimenez, M.D. performed a Physical Residual Functional Capacity Assessment and evaluated Ms. Adams' limitations: occasionally lifting and carrying twenty pounds; frequently lifting and carrying ten pounds; standing and/or walking, and sitting each for about six hours in an eight-hour work day; frequently climbing ramps, stairs, ladders, ropes, and scaffolds; frequently kneeling, crouching, and crawling; and occasionally stooping.

(R. 273-80). Dr. Jimenez further noted that, in his judgment, Ms. Adams' symptoms were "disproportionate to medical evidence in file" and not wholly credible. (R. 278). Dr. Jimenez's assessment was later affirmed by state reviewing board physician Richard Bilinsky, M.D. in November 2008. (R. 285-87).

Ms. Adams also had a consultative mental status evaluation in September 2008, performed by Gregory Rudolph, Ph.D. (R 254-58). He noted that her mood level reflected some mild depression secondary to her medical condition. (R. 256). Ms. Adams also presented some vegetative symptoms. (R. 256). Dr. Rudolph observed that Ms. Adams was oriented to reality in all phases, her memory for recent as well as more distant events was intact, she had good knowledge of general information, and was able to perform arithmetical calculations, use good judgment, and use reasoning skills. (R. 254). It was also noted that Ms. Adams was able to take care of her basic needs, but experienced some limitations performing daily chores due to physical limitations. (R. 254). Dr. Rudolph concluded that Ms. Adams is capable of managing her own financial resources and that her prognosis and insight were fair. (R. 254).

In that same month, state reviewing physician Howard Tin, Psy. D., found the following limitations: mild restriction of activities of daily living; mild difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. (R. 269). Ms. Adams then underwent a Mental Residual Functional Capacity Assessment with Dr. Tin, in which he noted that she was moderately limited in abilities: the ability to understand, remember, and carry out detailed instructions, the ability to maintain attention and concentration for extended periods, and the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances.

(R. 281). All other abilities -- including abilities to understand, remember, and carry out short and simple instructions, to get along with co-workers and work in concert with them, and to complete a normal work-day and workweek without psychological interruptions -- were found to be not significantly limited or not limited at all. (R. 281-84). In November 2008, these findings were affirmed by state agency reviewing physician Jerrold Heinrich, Ph.D. (R. 285-87).

In November 2008, Ms. Adams appeared at an appointment with Dr. Yam. (R. 299-303). During the examination, Dr. Yam noted that she had a coordinated and smooth gait, with hips and knees having a full range of motion and no muscle atrophy. (R. 301). Dr. Yam observed good strength in all extremities and intact sensation. (R. 301). In December 2008, the various treatment notes reflect diagnostic impressions including obesity, herniated disc with back pain, lumbar spondylosis, and snoring. (R. 312-15, 347-51, 357-70). During these appointments, Ms. Adams asked Dr. Yam to sign papers for an exemption from public housing community service and for a disability parking placard. (R. 347-49). Dr. Yam refused to sign the disability parking placard because he did not see it necessary, given the Residual Functional Capacity Assessment performed in July. (R. 349). In addition, Dr. Yam refused to sign the papers for complete exemption from community service given the Residual Functional Capacity Assessment and because the papers did not note the type of work to be performed -- he opined that Ms. Adams could perform clerical tasks or light duty. (R. 349). A form was completed stipulating that Ms. Adams should not do any heavy lifting over ten to fifteen pounds. (R. 349). Dr. Yam also observed that after he refused to sign the initial documents or prescribe narcotics, Ms. Adams became somewhat hostile. (R. 349). Dr. Yam noted the main issue seemed to be that she did not want to try and see if there was suitable light duty -- similar to the submaximal effort noted in the Residual Functional Capacity Assessment. (R. 349).

Konstantin Slavin, M.D., examined Ms. Adams in late December and concluded that she has lumbar spondylosis and pain most likely related to spine problems, but that the symptoms and testing are not severe enough to justify surgery. (R. 363). Instead, Dr. Slavin recommended physical therapy, treatment in a pain clinic if the pain continues, and weight loss through increased activity. (R. 363-64).

In January 2009, Ms. Adams complained of depression on evaluation for physical therapy, and antidepressant therapy and psychiatric counseling were considered. (R. 346). In May 2009, Ms. Adams saw Nathan Bolden, M.D., and Leslie Jabine, M.D., complaining of a depressed mood and back pain. (R. 339-42). Specifically, she mentioned that she was always feeling tired, sleeping, having less interest in daily activities, low energy, unable to concentrate, and sporadic appetite without suicidal or homicidal thoughts. (R. 339). Ms. Adams explained that she did not continue with previous physical therapy due to distance and claimed financial concerns, and that she would attempt to find a therapist closer to her home. (R. 340). Concerned that her depression might be contributing to her chronic pain symptoms and her non-compliance with previous medications, weight loss, and physical therapy, they prescribed anti-depressant medication. (R. 341-42). At that time, Ms. Adams was 5'6" and weighed 236 pounds. (R. 340).

C.

The Administrative Hearing Testimony

1.

Ms. Adams' Testimony

Ms. Adams testified that she suffered from chronic back pain, which shot down her legs and arms and into her hands. (R. 24, 30). She said her pain had increased due to straining in her past employment and because she had gained weight. (R. 24). She testified that she takes pain medication, but that it makes her sleepy and only eases her pain. (R. 30). However, she later inconsistently stated that she does not experience any side effects from her current medication.

(R. 32). She said that the pain affects her sleeping, causing her to toss and turn and wake up in the middle of the night. (R. 37-38). This causes her vision to be blurry as she wakes up and also results in drowsiness the next day. (R. 38). Due to her lack of sleep, she frequently takes naps during the day. (R. 38).

Ms. Adams also stated that due to her chronic pain she has trouble concentrating or focusing on things and has trouble following television shows or books. (R. 38-39). She said that she cooks meals for her family, cleans the dishes, does the laundry, bathes and dresses herself, shops for groceries, and does stretching exercises. (R. 34-36). Under further questioning by her attorney, she testified that she often had to take breaks and pace herself through these tasks. (R. 37). She is the sole caretaker for her four children, with two at school for half the day, and one at school the whole day. (R. 32). She also said that she cleans the house with the help of her oldest daughter. (R. 34). Ms. Adams attends a two-hour Church service on Sundays, although sometimes she has to leave early. (R. 36). Sometimes she will take her children to the library or the beach. (R. 34).

When asked if she could walk three or four blocks without stopping, she could not answer with certainty, saying only that it depends. (R. 32). She testified she could only stand for fifteen to twenty minutes without leaning or resting, and can sit for thirty to forty minutes without adjusting or moving. (R. 33). She also testified that Dr. Bowden had told her not to sit down for more than fifteen minutes. (R. 24). Ms. Adams said she "can't pick up too much, maybe a sack of potatoes, or a.gallon of milk." (R. 33). She has crying spells almost every day. (R. 31). Ms. Adams also testified that due to her pain, "I ain't going to be able to work no more." (R. 25). Ms. Adams stated that she has trouble getting along or trusting people, and that she spends a lot of time in the house. (R. 31).

When asked why she did not follow up for therapy after being evaluated, Ms. Adams replied that due to baby-sitting, transportation, and money she is unable to go to the therapist. (R. 26). She claimed that she did not attend the new therapy prescription closer to her home because no one responded when she followed up with a phone call. (R. 26). She testified that she has not seen an orthopedist or a neurosurgeon for her back, and that no one has recommended surgery for her back. (R. 26). Ms. Adams stated that she is currently taking Amitriptyline, as her previous prescription of Tramadol was not strong enough. (R. 27). Under questioning about why she has not pursued any mental health treatment in the form of a psychiatrist, counselor, or therapist, she replied that it was not offered and that she has not looked into such services. (R. 27). Ms. Adams also testified that she has been encouraged to lose weight and has lost ten pounds through changes in her diet. (R. 27). When asked if felt any improvement, she replied that she has more energy but her back pain is "the same." (R. 27-28). Although her doctors also recommended walking to improve her back symptoms, she testified that she does not because it is too hard to walk far and that she would need a babysitter for her children. (R. 36-37).

2.

The Vocational Expert's Testimony

Mr. Johnston then testified as a vocational expert. In response to the ALJ's hypothetical, he testified that a person who is twenty-seven years old, has the work experience and education of Ms. Adams, could sit for six to eight hours a day, could stand and walk at least six hours out of a day, could lift and carry frequently up to ten pounds and occasionally twenty pounds, could occasionally stoop, and was limited to unskilled jobs could not perform claimant's past work.

(R. 41). However, Mr. Johnston was able to identify 27,000 jobs in the Chicago Metropolitan area that such a hypothetical person would be able to perform including surveillance system monitor (5,000), assembler (19,000), and parts inspector/tester (3,000). (R. 41). The ALJ then asked whether those jobs would exist if the hypothetical person were limited to sedentary work, could lift and carry no more than ten pounds, and could stand and walk no more than two hours out of the day. (R. 41). Mr. Johnston replied that the person could still perform all of the surveillance monitoring positions (5,000), some of the assembly jobs (4,000), some of the parts inspection jobs (2,000), and some of the sorting positions (2,000). (R. 42)

Ms. Adams' attorney then asked Mr. Johnston if being absent on average two days per week due to flare-ups in back pain would prevent an individual's ability to sustain work, which Mr. Johnston answered in the affirmative. (R. 42). Ms. Adams' attorney also asked if an individual's ability to work would be affected if instead of the opportunity to sit and stand every forty-five minutes, the individual was required to take a break every forty-five minutes to an hour. (R. 42). Mr. Johnston said that such a restriction would affect an individual's ability to work and would eliminate jobs. (R. 42). Finally, Ms. Adams' attorney asked if an individual's ability to work would be affected if the individual were off task twenty percent of the day due to ...


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