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Ana M. Miocic v. Michael J. Astrue

September 5, 2012

ANA M. MIOCIC, 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 Ana M. Miocic ("Plaintiff" or "Claimant") brings this action under 42 U.S.C. 405(g), seeking reversal and/or remand of the final decision by 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 asks the Court to reverse the decision of the ALJ and remand to the Commissioner for an award of benefits or, in the alternative, reverse and remand for further proceedings. The Commissioner asks the Court to affirm the Commissioner's final decision. For the following reasons, the Court grants Claimant's summary judgment motion to reverse the decision of the Commissioner, denies the Commissioner's summary judgment motion to affirm the same, and remands the case to the Commissioner for further proceedings consistent with this opinion.

I. BACKGROUND FACTS

A. Procedural History

Claimant first filed an application for DIB on April 2, 2008 alleging a disability onset date of December 31, 2007. R. 154-62. The Social Security Administration ("SSA") denied her DIB application on June 12, 2008 and denied her request for reconsideration on September 5, 2008. R. 115-16.*fn1 Shortly thereafter Claimant filed a timely request for a hearing and on September 11, 2009 Administrative Law Judge ("ALJ") Jose Anglada presided over a hearing at which Claimant appeared with her attorney. R. 445-89. On September 28, 2009, the ALJ rendered a decision unfavorable to Claimant, finding that she was not under a disability at any time between January 26, 2008 (the date she last worked) and June 30, 2008 (her date last insured). R. 12-21. The Appeals Council denied Claimant's request for review and the ALJ's decision became the final order of the Commissioner. R. 1-3. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g). The parties have consented to this Court's jurisdiction pursuant to 28 U.S.C. § 636(c). Dkt. 18. An oral argument was held on August 28, 2012.

B. Hearing Testimony - September 11, 2009

1. Ana Miocic - Claimant

At the time of the hearing, Claimant was thirty-six years old. R. 450. She is divorced and has two daughters who live with her ex-husband. R.450, 461. She has earned her GED. R. 450.

In 1990, Claimant was diagnosed with Systemic Lupus Erythematous ("SLE" or "Lupus"). R. 40.*fn2 Despite this diagnosis, she continued to work at a grocery store from March 1990 to October 1999. R. 182. This work involved stocking shelves, ordering merchandise, and cashiering. R. 454. Claimant was fired from that job after quarreling with a co-worker. R. 40. She next held a series of part-time and seasonal jobs from February 2005 to January 2006, working variously as a janitor, bartender, and retail worker. R. 182.

Claimant's most recent employment was from July 2006 to January 26, 2008 during which time she worked approximately 24 hours a week as a cashier at a casino. R. 193. Because Claimant earned $2,519 at the casino in January 2008 her date last insured was modified from December 31, 2008 to June 30, 2008. R. 14.*fn3

Claimant reported that this employment ended because she often missed work or left early because of lupus-related pain and fatigue. There is some confusion in the record as to whether Claimant quit the casino job or was fired. When the ALJ asked why Claimant left her casino job, she stated that the casino "found their way you know, out" of employing her after having "issues with [her]. . . calling in sick quite a bit and going home early." R. 456. Explaining why she was calling in sick, Claimant explained that her pain had "finally caught up to [her]" and "there was just way too much pain. I couldn't do it." R. 457.

Claimant testified that she has not worked since leaving the casino, though she searches online for work that she could perform from her home. R. 452-53; 469-70. She did not specify whether she was searching for full-time or part-time employment, and neither the ALJ nor her attorney asked her to elaborate on that aspect of her search. From January 2008 until July 2009, Claimant received state unemployment benefits of approximately $700 per month. R. 452.

Claimant stated that she takes Imuran, Prednisone, Amitriptyline, Phenobarbital, and other drugs to manage her symptoms. R. 85. She also testified that she treats with her rheumatologist, Dr. Sarah Everakes, every two months. Id. She sometimes skips appointments because her symptoms are too painful or she doesn't wish to travel to Dr. Everakes's office. Id.

Claimant lives alone though stays with her parents when she is not feeling well. R. 461. Regarding her daily activities, she cooks simple meals for herself, but her mother often brings her food. R. 462. She goes grocery shopping about twice a month and tries to do laundry at least once a week. Id. She cleans her house a little at a time, often over several days, but has particular difficulty with sweeping and vacuuming. R. 87). Claimant spends most of the day watching television and uses the computer for about five hours each week.

R.463, 470. Although she used to love crocheting, she can no longer do it because of hand difficulties. R. 463. She has problems opening bottles and cans because her hands stiffen and fingers swell. 470-71.

As for her physical abilities, Claimant can lift a gallon of milk, but sometimes it takes two hands. R. 464. She can walk about a block without resting, stand for five to ten minutes, and sit for about one hour before needing to stand up. R. 466. Sitting causes discomfort in her lower back. Id. Claimant takes Tylenol 3 (with codeine) and over-the-counter Tylenol to manage this back pain, though she finds neither drug effective. R. 468-69.

In response to questioning by her attorney, Claimant testified that she does not believe that she could work a part-time job for twenty hours per week, nor could she reach repetitively over the course of a day. R. 470-71. She testified that she is "physically exhausted 24/7," and that her constant pain and stress affect her ability to concentrate and remember things. R. 474. When asked whether there are any days during which she is symptom free, Claimant replied "absolutely not," though some days are better than others.

R. 477.

2. Thomas Dunleavy - Vocational Expert

Thomas Dunleavy testified as a vocational expert ("VE"). R. 479. Claimant's previous relevant work experience included her work as a cashier and sales clerk. R. 480-81.

The ALJ presented the VE with a detailed hypothetical person of Claimant's age, education, and work experience who is limited to light work but can only stand and walk for two hours in an eight-hour workday and who can not frequently bend, climb, or do work that requires "frequent and rapid handling and manipulation for prolonged periods." R. 482. The VE testified that such a person could not perform Claimant's past relevant work. Id.

After clarifying that jobs which require fast paced, ongoing handling or rapid manipulation would not be available, the VE testified that the hypothetical person could perform the work of an unskilled cashier, of which there are 2500 jobs in Chicago. R. 482-83. The hypothetical person would also be able to perform the work of a visual inspector, of which there are 2000.*fn4 R. 483. The VE clarified that the cashier occupation he identified was more sedentary than Claimant's previous cashier position and did not require rapid handling. R. 482-83. As examples of these unskilled cashier jobs, the VE listed parking lot and theater ticket booth cashiers. Id.

The VE testified that a person with the foregoing limitations would be unable to work if she also had any of the following limitations:: (1) was unable to get out of bed at least one day a week; (2) had concentration limited to two hours; or (3) had handling and manipulation limited only to "occasionally." R. 484-488. Finally, the ALJ asked the VE to examine the RFC assessments prepared by Dr. Everakes on November 10, 2008. R. 488-89. The VE concluded that a person with such limitations described in those opinions, individually or in combination, would be unable to work. Id.

C. Medical Evidence

1. Medical Evidence Between the Day Claimant Last Worked, January 26, 2008, and Claimant's Date Last Insured, June 30, 2008.

On March 9, 2008, forty-two days after Claimant stopped working at the casino, she went to the emergency room at Provena St. Joseph Medical Center (the "ER") for shortness of breath and hand pain caused by a lupus flare-up. R. 263. Claimant stated that she had "just got over a URI [upper respiratory]/sinus infection." Id. Dr. Peter Stockmal, the ER physician, diagnosed her symptoms as caused by lupus but reported an otherwise unremarkable physical examination and normal x-ray and EKG findings. R. 263-64. Claimant declined oral medication for home, stating that she already had steroidal medication and would restart Elavil for her pain. Id. Dr. Stockmal recommended that Claimant increase her Prednisone for the next three days. R. 264.

On April 2, 2008, Claimant returned to the ER for left wrist pain and pain and swelling in two fingers that began that day. R. 260. The ER physician, Dr. Claude Sadvosky, reported that Claimant had no specific trauma that might have caused the pain, though he noted her history of lupus. Id. Aside from some "slight" tenderness and swelling in her fingers, Dr. Sadovsky found an otherwise normal physical examination, with full and normal ranges of motion in her wrist, fingers, and elbow. Id. Once again, Claimant was diagnosed with lupus. Id. Dr. Sadovsky called a ...


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