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Musso v. Colvin

United States District Court, N.D. Illinois, Eastern Division

May 22, 2014

ANTONIO B. MUSSO, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

ARLANDER KEYS, District Judge.

This case is before the Court on Antonio Musso's motion for summary judgment. Mr. Musso seeks a remand or reversal of the Commissioner's decision to deny his application for Disability Insurance Benefits and Supplemental Security Income. The Commissioner seeks summary judgment affirming the decision to deny benefits. For the reasons set forth below, Mr. Musso's motion [21] is denied and the case is affirmed.

BACKGROUND

Mr. Musso previously applied for disability benefits and was denied after a hearing before Administrative Law Judge (ALJ) Denise Martin on March 12, 2010.[1] On April 27, 2010, Mr. Musso applied a second time for disability benefits under Title II and Title XVI of the Social Security Act, alleging that he became disabled as of July 8, 2008 due to a seizure disorder, left and right broken femurs, and head trauma. (R.227, 234).

The Social Security Administration denied his second application initially and on reconsideration. (R.142). Thereafter, Mr. Musso requested a hearing before an ALJ, and the case was assigned to ALJ Patricia Supergan, who held a hearing on Mr. Musso's case on September 28, 2011 in Chicago. (R.37-70). At the hearing, Mr. Musso appeared and was represented by counsel.

I. Plaintiff's Hearing Testimony

At the March 12, 2010 hearing, Mr. Musso testified to the following[2]: He was born on July 16, 1969, he is 5'11", and around 160 pounds. (R.74). He is single and lives with his parents, Concetta Musso and Masario Musso, and his 18 year old nephew, Nicky. (R.74-75). He completed the twelfth grade and is not currently working. (R.75). The last time he was employed was at Tony's Fire Foods for about two weeks in June of 2009. (R.75-76). His last long-term job was at Home Depot, where for approximately three years he worked part-time stocking supplies and assisting customers. (R.76-77). Home Depot tried to work with him, as a "couple months would pass and I'd have a seizure, then go a few months...have [another] seizure." (R.77). Over the past 15 years, he has worked for Cintas clothing (one month); Family Craft Builders (one month before he had an accident); Synergy Service Merchandise (one month until seizure); Fed Ex ("wasn't there long"). (R.77-78).

He feels unable to continue working due to his continuous seizures that have taken a toll on his body, both physically and mentally. His cognitive functioning is impaired and he is unable to multi-task on the job. (R.79). Until he began taking Keppra in September of 2007, he regularly had about two seizures every four to five months. Id. He now has seizures less frequently, over the past six months he had two, but he also forgot to take his medication. (R.80).

At the second hearing on September 28, 2011, Mr. Musso testified to the following: his last seizure occurred in September. (R.44). He felt it coming a little bit, then it came on real quick, the rest is a blank. Id. He remembers waking up and realizing something happened, but does not remember his parents bringing him upstairs to the couch. (R.51). He had no energy and just sat in front of the TV for two hours trying to recuperate, until he forced himself to get up to take a shower. Id. He then relapsed and had a second seizure (R.52). He bruised the area under his eye brows when he had the seizure and fell (R.50). He currently has bruising on his body from previous seizures. (R.52). He had a concussion and went to the doctor for it in 2009. Id. He got into an automobile accident and broke his left femur. (R.53). He had to have his leg pinned, which creates pain when he sits. Id. He has to get up and walk off the pain; he cannot sit longer than half an hour without pain. Id.

He does not always have a total episode, sometimes he is able to control the outcome. (R.57). His last seizure occurred in February, but he was able to "fight it off." Id. He felt something coming on; his knees started to buckle, but he was able to stop it. Id. He took one Dilantin and after 15 minutes, he was able to walk normal. When the ALJ stated that his brother claimed in a letter that Mr. Musso will sometimes just drift off while he is having a conversation with him, he confirmed that he will easily lose attention. He said it is more of a timing thing, where he is delayed and is not able to process and respond right after he hears something. (R.58). In a work setting, other people might find this problematic. (R.58-59). He fears letting people see this side of him, as well as having an episode in front of others. (R.60-61).

With regard to his daily life, he takes out the garbage and cleans some dishes (R.45). He has a Facebook account he uses occasionally, and he looks up information on the lap top he shares with his nieces. Id. He does not play the computer or video games, but he occasionally reads magazines. His parents cook (R.47). Sometimes he does the laundry, but usually it is his mother. He has a couple friends he talks to on his cell phone. He goes out walking by himself to nearby places including 7-Eleven and Walgreens when he gets hungry. (R.53). He quit smoking roughly two years ago and has not had any alcohol since that time either. (R.46).

As to his physical issues, his left hip hurts when he sits and he has to walk off the pain. Walking is not that difficult, but he does need to sit down frequently. (R.53). When he had his concussion, he injured his neck as well. (R.54). He has had seizures at work. He kept working until he was no longer feeling well. He did not have the motivation and was depressed (R.55). He has seizures when he forgets his medication, or does something that has an adverse reaction to the medication, such as drinking alcohol (R.55-56).

II. Vocational Expert

A vocational expert ("VE"), Grace Gianforte, testified at the hearing on September 28, 2011. (R.63). The VE testified that she had not discussed the case with the plaintiff, that her testimony was consistent with the Dictionary of Occupational Titles, and that the job descriptions were consistent with the national economy. (R.63-64). The VE testified to hearing the relevant testimony, reviewing the exhibits and consulting the U.S. Bureau of Labor and Statistics. (R.64).

The VE testified that Mr. Musso "worked in retail sales, like department stores, grocery stores, DOT code 290.477-014, light, SVP: 3, semi-skilled." Id. She also testified that he worked as a "sales attendant at a home improvement store, associated with building materials, DOT code 299.677-014, SVP: 3, semi-skilled and heavy in exertion. There's been some temporary work with a staffing agency." Id. Additionally, the VE testified that Mr. Musso's exhibits showed "there was construction laborer, ding cleanup for three months in '00, 2000, DOT code 869.687-026, SVP: 2, unskilled and heavy in exertion." (R.65).

During the testimony, the ALJ asked the VE to hypothetically assume an individual of Mr. Musso's age, education and work experience, however, the individual had no exertional limitations, except that he is unable to climb ladders, ropes, or scaffolds and would need to avoid concentrated exposure to hazards such as moving machinery or unprotected heights. The ALJ then asked the VE would such an individual be able to perform any of Mr. Musso's past relevant work, to which the VE responded that the cleaner/packer and general retail sales jobs are still viable, but the construction laborer and sales attendant at Home Depot job would be eliminated, as he would have to climb ladders. (R.65).

The ALJ then altered the hypothetical slightly by asking the VE to now assume that the same individual had the residual functional capacity to perform light work, except that he should not stand or walk for more than two to four hours in an eight-hour workday; the individual would be unable to climb ladders, ropes or scaffolds and occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl; he would need to avoid extreme temperatures, and hazards; avoid driving motor vehicles, and the individual could further perform unskilled work tasks that could be learned in 30 days or by a demonstration. The VE responded that this individual would not be able to perform any of Mr. Musso's past relevant work. (R.65-66).

However, the VE testified that at the light level of exertion with sedentary work, where the individual can stand for up to two to four hours and can walk or sit the rest of the time, there is the occupation of office helper, DOT code 239.567-010, SVP: 2, with about 30, 000 positions in this region of the economy. (R.66). Additionally, the VE testified that there would be sedentary work as an order clerk, in the food and beverage industry, 209.567-014, SVP:2 (2, 000 jobs in the region/3000, 000 nationally); and the occupation of addresser, 209.587-010, SVP: 2 (1, 200 jobs in this region/12, 000 nationally). Id.

The ALJ then asked if the VE were to further limit this individual to unskilled work tasks that would involve occasional decision-making, occasional changes in the work setting and jobs that would not be fast paced or as having strict production quotas, would there be work available. The VE responded that the same jobs would still be available, as the addresser, order-clerk, and office helper jobs are unskilled and they are not fast paced. (R.67). The VE further expounded, however, that if this individual were likely to be off task, due to symptoms associated with seizure disorder, for 25% of an eight-hour workday, there would be no employment options. Id. Mr. Musso's attorney then asked the VE what amount of time could an individual, as detailed above, be off task and still gainfully employed. The VE responded that individuals performing unskilled work are expected to always be on task outside of their normal breaks. Id.

III. Medical Record

In addition to the testimony of Mr. Musso, and the testimony of the VE, the record before the ALJ also included medical records from his past filing as well as his recent medical history.

Issues relating to his head and body injuries include:

-May 2007 seizure at home, fell to the floor, striking his head. The next day he was stumbling and complaining of headaches. (R.587, 851, 853, 905, 907). CT of the head May 21, 2007. Impression was bilateral subfrontal hemorrhagic contusions and a non-displaced left suboccipital calvarial fracture extending into the left skull base (R.422-423). The hemorrhage was not advancing. CT performed the next day re-demonstrated the left occipital fracture, and stated the bifrontal hemorrhagic contusions were unchanged and no new hemorrhages were seen (R.424, 856). May 23, 2007, he still had a severe headache. (R.605). Cervical CT revealed degenerative changes at C6-C7 (R. 421).

-June 30, 2007, Mr. Musso had a motor vehicle collision resulting in a left femoral neck fracture (R.430). Dr. Michael Sturgill stated he presented with a total loss of consciousness, and a cervical spine fracture, but was stabled and cleared for surgery. (R. 492). Cervical CT June 30, 2007 due to neck pain revealed an hemongioma in the anterior left lateral aspect of C7 with a cortical interruption highly suspicious of an acute fracture, and degenerative changes. (R.437, 484).

-An X-ray June 30, 2007 due to leg pain post the motor vehicle accident revealed a mildly impacted, angulated left femoral neck fracture. (R.453, 481). The fracture was comminuted at the neck. Internal fixation was performed, using three screws (R.461, 475).

-An EEG performed July 5, 2007 was interpreted as moderately abnormal because of intermittent bitemporal delta slow waves and sharp waves. Impression also stated the record was consistent with an interictal or postictal state (R.450, 471).

-October 30, 2007, Dr. Franco Campanella of Neurological Associates wrote about his May 2007 assessment of Mr. Musso to Dr. Stevia. (R.990) Dr. Campanella opined that a perinatal injury may have been the etiology of his seizures. He noted that he presented to him after a fall from a seizure which resulted in a suboccipital fracture and bifrontal hemorraghic contusions. He also explained to Dr. Stevia that Mr. Musso is "very noncompliant with his medication." Id. He noted that Mr. Musso did not have surgery after the fall, yet seemed to be getting much better. His physical examination revealed him to be "awake, ...


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