Alexander v. Barnhart
| Decision Date | 30 September 2003 |
| Docket Number | No. 02-C-877.,02-C-877. |
| Citation | 287 F.Supp.2d 944 |
| Parties | Sharon ALEXANDER, Plaintiff, v. Jo Anne BARNHART, Commissioner of the Social Security Administration, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
David G. Dries, Milwaukee, WI, for Plaintiff.
Mora Sheehan Barry, Milwaukee, WI, for Defendant.
DECISION AND ORDER
Plaintiff Sharon Alexander ("plaintiff") brought this action under 42 U.S.C. § 405(g) seeking judicial review of the decision of defendant Jo Anne Barnhart, Commissioner of the Social Security Administration ("defendant or the Commissioner"), denying her application for disability benefits under the Social Security Act. The action was assigned to Magistrate Judge Patricia J. Gorence for pretrial proceedings. However, the parties did not consent to the exercise of jurisdiction by the magistrate judge. Accordingly, Judge Gorence could only make a recommendation on plaintiff's appeal.
On July 23, 2003, Judge Gorence issued a recommendation that the Commissioner's decision be reversed and the matter be remanded for further proceedings pursuant to § 405(g), sentence four. The Commissioner objects to the recommendation, and the matter is now before me for decision.1
In order to obtain benefits under the Social Security Act, plaintiff must be disabled, that is, she must be unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
Social Security regulations prescribe a sequential five-step test for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520; 416.920. Under this test, the Commissioner must determine: (1) whether the claimant is presently unemployed; (2) if so, whether the claimant has a severe impairment or combination of impairments; (3) if so, whether any of the claimant's impairments are listed by the Social Security Administration as being so severe as to preclude substantial gainful activity;2 (4) if not, whether the claimant possesses the residual functional capacity ("RFC") to perform her past work; and (5) if not, whether the claimant is able to perform any other work in the national economy in light of her age, education and work experience. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir.2000); Rucker v. Chater, 92 F.3d 492, 494 (7th Cir.1996).
The claimant will automatically be found disabled if she makes the requisite showing at steps one through three. See Henderson ex rel. Henderson v. Apfel, 179 F.3d 507, 512 n. 3 (7th Cir.1999). If the claimant is unable to satisfy step three, she must then demonstrate that she lacks the RFC to perform her past work. Id. If she makes this showing, the burden shifts to the Commissioner to establish that the claimant can engage in some other type of substantial gainful employment. Id. The Commissioner may carry this burden either by relying on the testimony of a vocational expert ("VE"), who evaluates the claimant's ability to perform work in the national economy in light of her limitations, or through the use of the "Medical-Vocational Guidelines," (a.k.a. "the Grid"), 20 C.F.R. Pt. 404, Subpt. P, App. 2. See Heckler v. Campbell, 461 U.S. 458, 461, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). The Grid is a chart that classifies a person as disabled or not disabled based on her physical ability, age, education, and work experience. See Walker v. Bowen, 834 F.2d 635, 640 (7th Cir.1987); see also Heckler, 461 U.S. at 461-62, 103 S.Ct. 1952; Caldarulo v. Bowen, 857 F.2d 410, 413 (7th Cir.1988).
However, the Commissioner may not rely on the Grid if the person's attributes do not correspond precisely to a particular rule, see Caldarulo, 857 F.2d at 413, or if non-exertional limitations (e.g., pain, or mental, sensory or skin impairments) might substantially reduce the claimant's range of work, see Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir.2001) (citing Luna v. Shalala, 22 F.3d 687, 691 (7th Cir.1994)). In such a case, the Commissioner must solicit the testimony of a VE, Herron v. Shalala, 19 F.3d 329, 337 (7th Cir.1994), although she may use the Grid as a "framework" for making a decision, see 20 C.F.R. § 404, Subpt. P, App. 2, § 200.00(e)(2).
Plaintiff applied for benefits on September 16, 1998,3 alleging that she was disabled due to fibromyalgia4 and seizures. (Tr. at 69.) Her application was denied initially and on reconsideration. (Tr. at 37-38.) Plaintiff then requested and was granted a hearing before an Administrative Law Judge (ALJ). A hearing was held on November 4, 1999,5 at which plaintiff and VE Beth Hoynik were the only witnesses. Plaintiff was represented by counsel.
Plaintiff testified that she was 43 years old, a high school graduate, and had studied accounting for two years at Milwaukee Area Technical College ("MATC"), although she did not receive a degree. (Tr. at 719.) Plaintiff stated that she was most recently employed as a certified nurse's assistant (CNA), a position which required her to bathe and dress patients, assist them to the dining room and therapy sessions, and clean their rooms. Her previous employment included factory jobs, a mail room position at MATC, and work in fast food restaurants. (Tr. at 720-22.)
Plaintiff testified that she could no longer work due to constant pain in her neck, back and legs. She stated that her fibromyalgia caused her muscles to tighten up, preventing her from getting out of bed. She indicated that she had trouble grasping objects due to numbness in her right thumb following surgery to her right hand and wrist. She stated that this also caused difficulty writing and grooming herself. (Tr. at 726-31.)
Plaintiff further testified that she experienced migraine headaches at least twice per week, which caused disabling pain. She indicated that she had problems with her knees, which had required two surgeries and the use of a brace on her right leg. She complained of a chronic sore throat due to a problem with her tonsils and a skin condition that affected her hands and feet. She indicated that she experienced occasional seizures, which caused ringing in her ears and headache. Plaintiff was taking six different medications due to her various conditions, with a side effect of drowsiness. (Tr. at 731-37.)
Plaintiff testified that she had good and bad days. On a good day, she might do some light cleaning; on a bad day she did nothing. She stated that her grand-nephew, who lived with her, did the cooking and heavy cleaning. She went grocery shopping with her grand-nephew and her boyfriend, and they carried the bags. (Tr. at 741-45.)
Plaintiff indicated that the longest she could sit or stand was one hour, and the farthest she could walk was two blocks. She testified that she could lift twenty-five pounds and had difficulty bending, stooping and squatting. (Tr. at 746-49.)
VE Hoynik testified that plaintiff's CNA job was classified as medium strength, semi-skilled work; the mail sorter job was sedentary, unskilled work; and the factory jobs were between light and medium, unskilled work. (Tr. at 755.) The ALJ then asked the VE whether there were jobs available for a person limited to unskilled, light work; who needed a sit-stand option;6 and could perform no overhead work, no prolonged repetitive flexion of the neck, no repetitive pushing, pulling, grasping or gripping, and no work around machinery or unprotected heights. The VE replied that approximately 2000 light assembly jobs, 500 mail room jobs, and 2000 cashier jobs would be available for such a person in the greater Milwaukee area. (Tr. at 755-57.) The VE later clarified her response—if the person could perform no repetitive pushing, pulling or grasping all of the jobs to which she had referred would be eliminated; if the person could occasionally push, pull or grasp the positions would be available. (Tr. at 761-62.)
On March 21, 2000, the ALJ issued a decision finding plaintiff not disabled. He concluded that she suffered from severe impairments—fibromyalgia and pseudoseizures, that neither impairment met the Listings, that plaintiff was unable to perform her past work, but that there were a significant number of other jobs she could perform. (Tr. at 320-27.)
Plaintiff sought review from the Appeals Council, and on March 27, 2001, the Council vacated the ALJ's decision and remanded for another hearing. The Council noted that the ALJ's decision indicated that "William Reynolds" was the VE at the hearing, but the voice on the hearing tape was female (apparently that of Ms. Hoynik).7 The Council concluded that the summary of VE testimony in the ALJ's decision was inaccurate and remanded for (1) further evaluation of plaintiff's subjective complaints; (2) further consideration of plaintiff's RFC, with specific references to the record; and (3) supplemental evidence from a VE. (Tr. at 329-30.)
Plaintiff appeared before the same ALJ on September 24, 2001. Plaintiff and VE Laura Koritsoglou were the only witnesses. Plaintiff was again represented by counsel.
Plaintiff testified that her fibromyalgia began to worsen in March 1998, and that she last worked in June 1998. She indicated that her muscles tightened up to the point where she could not use them. (Tr. at 773-75.) She testified that she was unable to obtain medical treatment in the latter half of 1998 because she had no insurance. She testified that in February 1999 she began seeing Dr. Arain, who gave her shots for the pain. (Tr. at 775-76.)
Plaintiff testified...
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...evidence to find the claimant was not disabled from fibromyalgia or any other condition. Id. at 642. In Alexander v. Barnhart , 287 F. Supp.2d 944 (E.D. Wis. 2003), the court first held that the ALJ III-183 ISSUE TOPICS § 1307 erred in concluding that the claimant did not suffer from fibrom......
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Issue Topics
...evidence to find the claimant was not disabled from fibromyalgia or any other condition. Id. at 642. In Alexander v. Barnhart , 287 F. Supp.2d 944 (E.D. Wis. 2003), the court first held that the ALJ erred in concluding that the claimant did not suffer from fibromyalgia as such a conclusion ......
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Table of cases
...§ 403.2 Alexander v. Apfel , 14 F. Supp.2d 839, 841 (W.D. Va. 1998), §§ 101.4, 203.1, 210.5, 210.8, 509.3 Alexander v. Barnhart , 287 F. Supp.2d 944 (E.D. Wis. Sept. 30, 2003), §§ 1307, 1508, 1603.5 Alexander v. Comm’r of Soc. Sec ., 85 F.3d 611 (Table), No. 95-5642 (3d Cir. Apr. 4, 1996), ......
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Issue topics
...evidence to find the claimant was not disabled from fibromyalgia or any other condition. Id. at 642. In Alexander v. Barnhart , 287 F. Supp.2d 944 (E.D. Wis. 2003), the court first held that the ALJ erred in concluding that the claimant did not suffer from fibromyalgia as such a conclusion ......