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Morris v. Colvin

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

May 26, 2015

CAROLYN COLVIN[1], Acting Commissioner of Social Security Administration, Defendant.


IAIN D. JOHNSTON, Magistrate Judge.

Plaintiff Charlotte Marie Morris appeals the administrative denial of her application for disability benefits. For the reasons given below, the case is remanded for further administrative proceedings consistent with this order.

Procedural Background

Ms. Morris applied for disability benefits under Titles II and XVI on May 5, 2009, alleging an onset date of September 1, 2007. Her claims were denied initially on July 20, 2009, and upon reconsideration on December 17, 2009. On April 19, 2010, she requested a hearing before an Administrative Law Judge, which occurred exactly one year later on April 19, 2011, by video. Ms. Morris was represented at the hearing by a non-attorney representative.

On April 29, 2011, the ALJ determined that Ms. Morris was not disabled. On June 3, 2011, she sought review before the Appeals Council, and on June 15, 2011, filed a subsequent application for benefits under both Titles II and XVI. On September 23, 2011, her subsequent application for benefits was granted and she was found disabled as of March 21, 2011. As a result, the Appeals Council issued a partially favorable decision in her appeal of the ALJ's April 29, 2011, decision. In the partially favorable decision, the Appeals Council found her disabled as of March 21, 2011, consistent with the finding on her subsequent application, but adopted the ALJ's findings that she was not disabled before March 21, 2011. The Appeals Council's decision is the final decision of the Commissioner, and Ms. Morris timely appealed to this Court its adoption of the ALJ's determination that she was not disabled during the period April 22, 2010, through March 20, 2011.

Hearing Testimony

During the hearing on April 19, 2011, Ms. Morris testified that she cannot work because her knees cause her pain day and night, and even with pain pills she is miserable. R. 28-29. She testified that an injection she received to relieve her knee pain wore off after a couple of days, and doctors have told her the only relief they can offer is a knee replacement, but that she would not qualify for one until she reached the age of 50 (she was 42 at the time). R. 29-30.

Although she had alleged on onset date of September 1, 2007, she admitted she continued to work as a cashier and stock clerk until April 16, 2010, when her "bone popped" after work. R. 26. She testified that after that incident, she cannot stand more than five to ten minutes, and can walk no more than one-half a block. R. 38. She cannot sit for more than ten minutes, cannot lift more than ten pounds, and occasionally her knee continues to pop out of place "and I will have to hit my leg to beat the bone back in." R. 39. She elevates her legs to reduce swelling in her knees, and uses a cane to keep her balance while walking and to get off the toilet stool, even though her doctor did not prescribe a cane. R. 36-37. She gets her youngest son ready for school each morning, washes dishes, vacuums, and occasionally cooks, but must take a break after about five to ten minutes to rest for half an hour. R. 39, 43. She shops once in a while in a motorized chair, but mostly has others shop for her, and her older son cuts the lawn. R. 40.

Ms. Morris testified that she also suffers from sleep apnea and uses a CPAP machine, but still cannot sleep more than a couple hours at a time. R. 32. She has thyroid and goiter conditions that have been stabilized with medication. R. 33-34. She also takes hydrocortisone and Vicodin, but they leave her drowsy and offer little relief. R. 38. Despite a history of alcohol abuse and liver test results that led her doctor to advise her to stop, she continues to drink because "a beer ain't going to kill you." R. 34-35. She also continues to smoke one pack of cigarettes every two-and-a-half days because she is "stressed out and miserable." R. 35. She testified that the only exercise her doctor ever recommended was swimming, but that she does not know how to swim. R. 41-42. She also testified that her doctor recommended she lose weight, which she was attempting to do by eating baked lamb and chicken rather than pork. R. 33.

According to Ms. Morris, she previously worked as a cashier and dishwasher at McDonald's, as a personal assistant to her mother, and as a mail processor for the U.S. Post Office. R. 27-28. She admitted that she was receiving unemployment insurance by certifying that she was looking for jobs even though she was not looking for jobs because "I have to pay my phone bill and that's the only income I've got coming in." R. 24.

A vocational expert also testified at Ms. Morris' hearing and offered his opinions on the types of work a person Ms. Morris' age with her work experience and education could perform based on hypothetical restrictions presented by the ALJ. The vocational expert testified that a person who could sit, stand and walk at least six hours out of an eight hour day, could lift and carry frequently up to 25 pounds and occasionally 50 pounds and with no other restrictions could perform all of Ms. Morris' prior work. R. 46. He testified that a person limited to sedentary work, who could sit, stand and walk no more than two hours a day, and could lift and carry no more than ten pounds would be precluded from all of Ms. Morris' prior work, but could work other jobs that exist in significant numbers including as a receptionist, general office clerk, and order clerk. Id. The expert's opinion was unchanged even if the person with those same restrictions also needed to elevate one leg periodically throughout the day and needed to alternate between standing, sitting, and walking every ten minutes. R. 47. But all work would be precluded if the person was off task 25% of the day or were absent twice a month. Id.

Documentary Evidence

Ms. Morris sought treatment for knee pain since at least June 2005. R. 267-69. On April 9, 2009, Dr. Xerxes Colah performed arthroscopic surgery to remove a torn meniscus in her left knee. R. 286-88. Ms. Morris continued to suffer pain in both knees into 2010 and sought relief from Dr. Carol Sword on February 8, 2010, R. 391, with follow-up visits on April 1, 2010, R. 390, and again on April 12, 2010, after feeling her right knee pop on April 9, 2010[2], R. 389. Dr. Sword referred Ms. Morris for an MRI, R. 389, which revealed a torn meniscus in her right knee and mild to moderate sized effusion, R. 495. Dr. Sword then referred Ms. Morris to Dr. Kevin Draxinger, who scheduled her for an arthroscopy of her right knee. R. 365. Dr. Draxinger performed the arthroscopy on April 28, 2010, which revealed medial femoral condyle osteoarthritis ranging from grade 2 to grade 4 (severe) in some areas. R. 367. In notes from a follow-up visit on May 4, 2010, Dr. Draxinger expressed hope Ms. Morris could resume work by the end of the month, recommended wearing an off-loading brace, and noted his discussion with Ms. Morris about either a unicondylar or total knee replacement, but that her morbid obesity might rule her out as a candidate for the surgery. R. 367.

On July 22, 2010, Dr. Draxinger completed an activity limitations form restricting her to four hours' work each day through September 15, 2010. R. 377. In notes from an examination on September 9, 2010, Dr. Draxinger noted that Ms. Morris was not improving and "cannot really work anymore." R. 376. He also noted that he "suggested she also try to get re-educated so she does not have to stand on her leg all day long as she currently" does. Id. On March 21, 2011, Ms. Morris saw Dr. Daniel Woods, who noted Ms. Morris' reports that Vicodin and steroid injections did not control her pain, and that she had been told she was not a candidate for knee replacement surgery because she was too young. Dkt. 382. Dr. Woods stated that he "wrote her ...

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