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Brenda J. Harris v. Michael J. Astrue

August 14, 2012


The opinion of the court was delivered by: U.S. Magistrate Judge Hon. P. Michael Mahoney


I. Introduction

Brenda J. Harris seeks judicial review of the Social Security Administration Commissioner's decision to deny her application for Disability Insurance Benefits ("DIB") pursuant to Title II of the Social Security Act, 42 U.S.C. § 416, 423; and Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, See 42 U.S.C. § 405(g). This matter is before the Magistrate Judge pursuant to the consent of both parties, filed on January 18, 2011. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

Claimant first filed for DIB on April 23, 2008; and SSI on March 24, 2008 (Tr. 17.) She alleges a disability onset date of October 22, 2007 (Id.) Her claims were denied initially and on reconsideration (Tr. 1, 14.) The Administrative Law Judge ("ALJ") conducted a hearing into Claimant's application for benefits on August 10, 2009. (Tr. 17.) At the hearing, Claimant was represented by counsel and testified. (Id.) Mr. Dunleavy, a Vocational Expert (hereinafter referred to as "VE") was also present and testified (Id.) The ALJ issued a written decision denying Claimant's application on September 15, 2009, finding that Claimant was able to perform past relevant work as a general clerk. (Tr. 14, 23.) Because the Appeals Council denied Claimant's Request for Review regarding the ALJ's decision, that decision constitutes the final decision of the Commissioner. (Tr. 1.)

III. Background

Claimant testified to the following:

She was 50 years old and married (separated). (Tr. 34.) She lived in a house with a family friend, and paid rent until she lost her job in October of 2007. (Tr. 34-35.) She was five feet and seven inches tall, weighed 165 pounds, and graduated from high school (Tr. 34, 168.)

Claimant had no income, received no worker's compensation benefits or long term disability, nor unemployment benefits or government benefits, including food stamps. (Tr. 34-35.) The Claimant did receive short-term disability benefits from October of 2007 until the end of 2007 from her last employer, Filtration Group Inc. (Tr. 35-36, 158.)

Claimant worked at Filtration Group as a hand packager from April 2007 until her release in October 2007. (Tr. 42, 170.) At Filtration Group, Claimant did light assembly work that required her to lift big rolls of material weighing up to fifty pounds, and then proceed to re-roll it on a machine. (Tr. 38.) Claimant's disability report indicates that prior to Filtration Group, Claimant worked for Clean-Tech of Illinois from 2006 to 2007. (Tr. 158, 170.) At Clean Tech Claimant served as a housekeeper, which required her to vacuum, sweep, dust, move furniture, clean windows, and lift up to twenty pounds at a time. (Tr. 38-39.)

Claimant also worked for Expert Optics as a general clerk during 2005. (Tr. 41, 170.) At Expert Optics, Claimant was required to read paperwork on a tray containing lenses, decide its appropriate place, then either slide or carry the tray of less than ten pounds from one countertop to another roughly five feet away, and do so while standing the entire time. (Tr. 40-41, 60.)

Before working at Expert Optics, Claimant was a machine operator for Dow Chemical Company and Insta-Foam Products. (Tr. 40, 160.) Claimant's disability report indicates that she worked at Dow from 2000 to 2004, and was required to lift and fill cylinders with chemicals, then to bring them to a conveyor belt up to 100 to 200 times a day. (Tr. 160, 180.) Her disability report also indicates that she worked at Insta-Foam from 1989 to 2002. (Tr. 160, 170.) At Insta-Foam, Claimant used machines to fill chemicals into 55 gallon drums, and kept records of those drums filled. (Tr. 181.) Claimant's work at both Dow and Insta-Foam consisted of routine lifting up to twenty pounds. (Tr. 41.)

Since her dismissal from Filtration Group in October 2007, Claimant's daily activities consist of making herself breakfast, washing the dishes, and then going back to bed for a couple of hours. (Tr. 45.) Claimant can do small things around the house like light dusting and the laundry, but she cannot carry the laundry basket. (Tr. 45-46.) Claimant does not sweep or vacuum her home, leaving this to either her roommate or her daughter when she comes over to visit. (Tr. 46.) Claimant eats three times a day, making herself mainly sandwiches and not cooking big meals. (Tr. 45.) Claimant does not do major grocery shopping for herself, but will drive to the store to buy small things like a loaf of bread. (Tr. 47.) Claimant reads and watches television for recreation, and can follow the information therein. (Tr. 46.)

Claimant stated that she could lift small piles of clothes, but no more than a couple of pounds. (Tr. 47-48.) She could sit no longer than a half hour before feeling pain in her back, and stand only ten to fifteen minutes, enough to allow her to wash the dishes. (Tr. 48.) Claimant said she could not bend down to pick things off the floor, but could lean over a table. (Id.)

Additionally, Claimant testified that she could only walk up to a half a block before feeling discomfort in her back and down her leg. (Tr. 63.) Claimant does all her own personal care and hygiene. (Tr. 48.)

Claimant testified about her numerous medical issues, including a collapsed lung, lumbago, and an injured wrist. (Tr. 52, 54.) Claimant stated that she collapsed her lungs, "spontaneous neumothorax," both in July and November of 2008. (Tr. 53.) Claimant noted that her lung was no longer collapsed, no doctor was currently treating her for it, and that her breathing was good. (Tr. 53-54.) She was instructed that if another collapse occurred, to return to the emergency room and have it re-inflated by a chest tube. (Tr. 53.) Additionally, the Claimant testified she had a wrist fusion surgery in 2003, and then re-injured the wrist in 2006. (Tr. 54-55.) The Claimant's wrist was affecting her at the time of the hearing, giving her cramps while performing repetitive motions like typing or squeezing things. (Tr. 55.)

In May 2006, Claimant injured herself at her home by lifting her ninety pound dog onto a couch, causing her to feel an immediate pop in her back. (Tr. 42, 169.) Following this injury to her back, the Claimant began taking prescription pain medication. (Tr. 42-43.) The prescribed medications were not controlling her pain, so she then obtained a series of three epidural steroid injections in her back. (Tr. 44.) Following the injections, the Claimant began taking Vicodin for the pain. (Id.)

Claimant stated that she was recommended for surgery on her back, but claims she had no means to pay for it. (Tr. 44.) Moreover, Claimant mentioned that she was worried about the potential back surgery because the doctor told her it did not work for everyone. (Id.) She continued to take Vicodin for quite a while, but at the time of the hearing she had been off Vicodin and was taking the generic form of Altram. (Tr. 45.)

Vocational Expert ("VE"), Thomas Dunleavy, was present at Claimant's hearing for questioning. (Tr. 56.) The VE described Claimant's past work as a housekeeper as light, and unskilled. (Tr. 58.) Additionally, the VE described Claimant's past work as a machine operator as heavy, and semi-skilled. (Tr. 58, 164.) Claimant's job as a general clerk was described by the VE as light, unskilled work. (Tr. 46.) Lastly, the VE described in his written records that Claimant's job as a hand packager was medium, and unskilled. (Tr. 58.)

The ALJ asked the VE if Claimant would be able to do work she's performed in the past, and to apply the following hypothetical fact pattern to the Claimant's previous jobs:

[L]ift and carry no more than twenty pounds occasionally and ten pounds frequently and can only occasionally bend, stoop, squat, crouch or kneel . not be exposed to working at heights or climbing ladders . able to negotiate stairs only occasionally and has a mild inability to maintain attention and concentration due to pain . a level of three on a scale of one to ten . [a]nd ten is the greatest degree of severity.

(Tr. 62.) The VE stated that Claimant would be able to perform her past work as a general clerk based on the above-mentioned hypothetical. (Tr. 62.) Then the ALJ asked the VE to consider a different scenario, and the following hypothetical was presented to him:

[A]ssuming that the claimant were unable to lift no more than -- let's say, less than ten pounds occasionally . sit no more than thirty minutes at a time . stand no more than ten to fifteen minutes at a time. She could do no bending.

(Tr. 63.) The VE stated that based on this hypothetical the Claimant would be precluded from performing the jobs she had done in the past. (Id.) Additionally, the VE opined that based on the Claimant's inability to bend at all, no type of work would be feasible for her. (Tr. 64.)

IV. Medical Evidence

Claimant's medical records relating to her alleged impairments begin on May 24, 2006 with a patient progress note from her primary care physician, Dr. Sumin Shah, D.O. (Tr. 344.) Dr. Shah's note indicated that Claimant had a low back strain. (Id.) Claimant returned to Dr. Shah on May 30, 2006 and June 12, 2006. (Tr. 341, 343.) On both dates Dr. Shah noted that Claimant's back continued to bother her, and on June 12 Dr. Shah ordered an MRI of Claimant's back. (Id.) On July 9, 2006, Dr. Robert A. Breit, M.D. of Joliet Open MRI administered the MRI of Claimant's back ordered by Dr. Shah. (Tr. 325, 341.) Dr. Breit found desiccation and minor disc bulging at L4-5, but no focal disc herniation. (Tr. 325.) On July 12, 2006, Dr. Shah reviewed Claimant's MRI, and found pain due to sciatica, small L4-5 disc bulge, and prescribed Vicodin. (Tr. 349.) Additionally, Dr. Shah issued Claimant a note indicating that she could not lift, push, or pull anything greater than fifteen pounds at work, could not work at heights, and should not operate heavy machinery. (Tr. 337.)

On June 7, 2006, Claimant began seeing Michael J. Condon, D.C. (Tr. 244.) Claimant saw Condon again on nine occasions between June 9, 2006 and June 22, 2006. (Id.) On June 12, 2006 Dr. Condon indicated that Claimant had a maximum cervical flexion angle of 54°, maximum cervical extension angle of 55°, cervical flexion impairment of 0%, cervical extension impairment of 2%, and a total cervical range of motion and ankylosis impairment of 2%. (Tr. 245.) Additionally, Dr. Condon's records show that Claimant had a maximum lumbar flexion angle of 59°, maximum lumbar extension angle of 17°, lumbar flexion impairment of 5%, lumbar extension impairment of 3%, and a total lumbar range of motion and ankylosis impairment of 8%. (Tr. 246.)

On July 1, 2006, Claimant had an EMG done by a neurologist, Dr. Bakul K. Pandya, M.D. (Tr. 323.) Dr. Pandya found that the EMG was "abnormal," and showed a mild to moderate L3-4 radiculopathy. (Id.)

On August 4, 2006 and August 10, 2006, Claimant saw nurse practitioner Lucinda Dewaele-Guzmnan. (Tr. 353.) Dewaele-Guzman diagnosed Claimant with essential hypertension, and generalized anxiety disorder. (Id.) On November 21, 2006 and complaining of right wrist pain, Claimant returned to Dewaele-Guzman. (Tr. 351.) Dewaele-Guzman told Claimant to take ibuprofen, wear a wrist support, and ordered an x-ray of her wrist. (Id.)

Claimant returned to Dr. Shah on August 11, 2006, and was diagnosed with lumbar radiculopathy. (Tr. 336.) On November 6, 2006, Claimant again saw Dr. Shah and he diagnosed her with lumbago. (Tr. 355.)

In a June 7, 2007 letter written by Dr. George DePhillips, M.D., S.C., a neurologist whom Dr. Shah referred Claimant to, Dr. DePhillips noted that Claimant had received lumbar epidural steroid injections, and that the physical therapy she had undergone for two months had aggravated her symptoms. (Tr. 384.) Additionally, Dr. DePhillips stated that Claimant's MRI revealed disc degeneration with desiccation at the L4-L5 level with disc protrusion, and that she failed to improve with conservative treatment. (Id.) Dr. DePhillips concluded that Claimant was suffering from mechanical low back pain and instability due to discogenic pain, and that Claimant was interested in surgery, her options being IntraDiscal Electrothermal Treatment or a spinal fusion. (Id.) Dr. DePhillips recommended Claimant undergo a lumbar discography at L4-L5 and L5-S1. (Id.)

On July 30, 2007 and upon referral by Dr. DePhillips, Claimant saw Dr. Mauricio Orbegozo, M.D. of the Pain Centers of Chicago. (Tr. 277.) Dr. Orbegozo diagnosed Claimant with lumbar discogenic back pain, and advised her to proceed with the lumbar discogenic provocative discogram. (Tr. 278.) On August 17, 2007, Dr. Orbegozo performed Claimant's provocative lumbar discogram at three levels of her back: L3-L4, L4-L5, and L5-S1. (Tr. 288.) Dr. Orbegozo found that Claimant had discogenic back pain with positive reproduction at L4-L5, and lumbar degenerative disc disease. (Tr. 288.) Additionally, and as reviewed by Dr. Brian M. Fagan, M.D., the discogram revealed disc bulges at L3-4, L4-5, L5-S1, and that there were small focal tears at L3-4 and L5-S1. (Tr. 295.) Dr. Fagan also noted that there was no greater than mild stenosis within the limits of the discogram at any level. (Id.)

On August 28, 2007, Claimant returned to the Pain Centers of Chicago to see Dr. Morales, M.D. (Tr. 285.) Dr. Morales opined that Claimant had a L4-L5 disc bulge and lumbar radiculopathy. (Id.) Additionally, Dr. Morales noted that Claimant's pain had increased for two days after her discogram before returning its previous level, and that the Vicodin was providing good pain control for her. (Id.)

On September 19, 2007 Dr. DePhillips recommended Claimant get a second opinion from Dr. Michel Malek, M.D. (Tr. 383.) On October 22, 2007, Dr. Malek opined that the Claimant suffered from lumbar radiculopathy, and specifically from the Claimant's MRI on July 9, 2006, desiccation at L4-L5. (Tr. 362.) Dr. Malek's review of Claimant's lumbar discogram done August 17, 2007, revealed to him that Claimant had positive concordant pain at the L4-L5 level; and that the post discogram CT done the same day showed a small left posterolateral annular tear at L5-S1, small focal left posterolateral tear at L3-L4, and no annular tear at L4-L5. (Tr. 362-633.) Additionally, Dr. Malek ...

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