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Daniel T. Mullen v. Michael J. Astrue

March 28, 2013

DANIEL T. MULLEN, PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

PLAINTIFF DANIEL T. MULLEN'S MOTION AND MEMORANDUM FOR SUMMARY REVERSAL OF COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION'S DENIAL OF DISABILITY OR ALTERNATIVELY FOR REVERSAL AND REMAND TO A DIFFERENT ADMINISTRATIVE LAW JUDGE

NOW COMES Plaintiff, Daniel T. Mullen, by his attorney, Michael Patrick Mullen of the law firm of Mullen & Foster, and seeks Summary Reversal of Commissioner's denial of disability benefits or alternatively for reversal and remand to a different Administrative Law Judge ("ALJ"), and in furtherance states as follows:

Appeal is made of the unfavorable Decision of Office of Disability Adjudication and Review dated September 21, 2010. (Record - Court Transcript Index p. 8). ("Decision"). The Decision held Claimant has not been under a disability and is capable of performing past relevant work as an accountant. That determination and Decision misconstrues the evidence, is against the weight of the evidence and ignores more recent evidence and misapplies the law. Claimant requests a determination of disability and eligibility for disability benefits, or alternatively that the case be returned to another ALJ for a new decision.

INTRODUCTION

Daniel Timothy Mullen ("Daniel"), age 43 at time of hearing, now age 45, suffers from moderately advanced early onset Parkinsons Disease ("PD"), an incurable progressive disease which is progressing rapidly causing worsening symptoms, significant deterioration and increased disability. He is not able to perform work or work as an accountant because of his PD symptoms including deteriorated ability to use a computer and keyboard which is seriously hampered, an inability to write adequately and cognitive symptom deterioration. Hearing Tr. pp. 39-40.

Daniel also has had two total hip replacements, in 2002 and 2005. He suffered complications in 2006 after his last hip replacement surgery in 2005. The hip replacements are a secondary medical disability condition which aggravate the effect of the PD symptoms. Hearing Tr. pp. 27-28. The ALJ relied upon early medical records including several not related to PD. But these references to medical evidence of 2005 and 2006 are separate from PD or its intensity, persistence or functionally limiting effects.

Daniel's debilitating PD symptoms are tremors in both left and right extremities, legs and arms, as well as neck and torso tremors; significant muscle rigidity; bradykinesia (slow movement); dyskinesa (involuntary movements); facial masking; limited hand dexterity and postural instability. Hearing Tr. Pp. 29-31, 33-39.

In addition, Daniel has suffered cognitive deterioration because of PD and his required medication. He suffers from inability to concentrate, lack of ability to think clearly, fuzzy thinking, inability to focus on and complete tasks, deteriorating memory and deteriorated ability to communicate clearly and effectively. Hearing Tr. pp. 39-40.

Daniel takes extensive PD medication*fn1 daily which produce only partial relief, the length and onset of which is unpredictable. The time between prescribed doses is four hours. The time and sequence of dosing is restricted by the need to pace the medication because its effectiveness will lessen with sustained prolonged use over time. The medication provides about 75% relief while effective. The onset of the effectiveness of the medication is now about 60 to 75 minutes after taking it, up from 30 to 45 minutes previously. That results in a effective medicated window of about 2 and 3/4 hours for every 4 hours where he is about 75% relieved of his symptoms. The exact onset of effectiveness is unpredictable. He is always subject to his symptoms at about 25% intensity even while his medication is effective. Hearing Tr. pp. 35, 37-40.

CLAIMANT MEETS THE REQUIREMENT OF MEDICAL LISTING 11.06 FOR PARKINSONIAN SYNDROME

It is uncontestable that Daniel meets all of the requirements of Regulation 20 C.F.R. Part 404, Subpart P Appendix 1 11.06 Parkinsonian Syndrome consisting of significant muscle rigidity, bradykenesia (slow movement) or tremors in two extremities (here both his legs and arms), dyskinesa (involuntary movements) limited hand dexterity and postural instability. Hearing Tr. pp. 30, 33-35, 37-40. Therefore he clearly is disabled contrary to the initial determination rejecting the claim, the 09-21-10 Decision of the ALJ and the rejected review of appeal of that ALJ decision by the Appeals Council.

The ALJ (Decision, p.4) found that claimant does not meet Medical Listing 11.06 for Parkinsonian Syndrome. That determination ignores the record including medical records submitted and Claimants testimony. That finding is inaccurate and clearly erroneous. See Exhibit 11-F and 12-F*fn2 , especially the most recent 07-24-10 evaluation by Dr. Dexter, one of his treating physician for Parkinson Disease, diagnosing moderately advanced Parkinson Disease.

The medical evidence submitted clearly shows the relevant symptoms establishing qualification under Medical Listing 11.06. In addition, Claimant testified to these symptoms which result in sustained disturbance of gross and dexterous movements or gait and station. Hearing Tr. pp. 33-34, 37-40.

Indeed even at the hearing, the ALJ noted he observed tremors in Claimants left arm and hand despite medication. Hearing Tr. pp. 37-38.

A claimant who establishes that he suffers from one of the impairments listed at 20 CFR pt 404 Subpt P App 1 is considered disabled without further inquiry. Regulations recognize that certain impairments are so severe that they prevent a person from pursuing any gainful work. Heckler v. Campbell, 461 US 458 (1983). If claimant is not currently employed, has severe impairment and that impairment meets or equals listed impairment, he will automatically be found disabled. Knight v. Chater, 55 F.3d 309 (7th Cir. 1995).

If an error of law is committed by the Commissioner then the "Court must reverse the decision regardless of the volume of evidence supporting the factual finding. Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997), Talmo v. Astrue, 2012 WL 1952575 (N.D. Il.). The failure to apply Medical Listing 11.06 for Parkinsonian Syndrome is an error of law.

The ALJ merely made a boilerplate recital in his decision that "the Claimant does not meet or equal Medical Listing 11.06 for Parkinsonian Syndrome because the record does not contain signs of significant rigidity, bradykenesia or tremors in two extremities which singly or in combination result in sustained disturbance of gross or dexterous movements or gait and station." The Seventh Circuit has made clear such boilerplate recital is not enough to fulfill SSR96-7p. McClesky v. Astrue, 606 F3d. 351, 352 (7th Cir. 2010).

This ALJ determination contradicts what the ALJ said at the hearing. The ALJ stated that claimant submitted evidence that he fits within the Medical Listing 11:06. (Hearing Tr. p. 41). The ALJ also stated that putting aside the age issue, he would qualify under the Parkinsons Syndrome listing. (Hearing Tr. pp. 33-34).

THE DECISION SHOULD BE REVERSED

The Decision is incorrect and should be set aside. The Decision misconstrues the facts, is against the weight of the evidence ...


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