Armstrong v. Barnhart, 02 C 7572.

• Decision Date: 15 October 2003
• Docket Number: No. 02 C 7572.,02 C 7572.
• Parties: Floyd ARMSTRONG, Plaintiff, v. Jo Anne BARNHART, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Illinois

287 F.Supp.2d 881

Floyd ARMSTRONG, Plaintiff, v. Jo Anne BARNHART, Commissioner of Social Security, Defendant.

No. 02 C 7572.

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

October 15, 2003.

Timothy R. White, Chicago, IL, for Plaintiff.

Kathryn A. Beverly, Chicago, IL, for Defendant.

MEMORANDUM ORDER

BOBRICK, United States Magistrate Judge.

Plaintiff Floyd Armstrong brings this action pursuant to 42 U.S.C. § 405(g) to review a final decision of the Commissioner of Social Security ("Commissioner") denying him Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act.

I. BACKGROUND

The plaintiff filed an application for DIB and SSI on December 13, 2000, alleging he was disabled since October 6, 1995, as a result of asthma and arthritis. (Administrative Record ("R.") at 60-62, 156-157). His application was denied at the initial levels of administrative review (R. 131-134, 32-35), and he requested an administrative hearing. (R. 36). On May 2, 2002, an administrative law judge ("ALJ") conducted a hearing at which the plaintiff appeared, represented by counsel, and testified. (R.168-221). Thomas Dunleavy also appeared at the hearing and testified as a vocational expert. ("VE"). (R. 216-221). After considering all the evidence of record, in a decision dated May 30, 2002, the ALJ found that plaintiff was not disabled because he retained the capacity to do light work, and could perform a significant number of jobs in the national economy. (R. 18-24). This became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review of the decision on August 30, 2002. (R. 10-11).

A. Evidence of Record

The plaintiff was fifty-one years old at the time of the ALJ's decision in this case, and fifty years old when his insured status expired on June 30, 2001. (R. 19). He testified that he completed the eleventh grade. (R. 175-176). The plaintiff worked as a welder from 1974 until 1995. (R. 66). According to the VE, this was medium, unskilled work, as plaintiff described it. (R. 217). This job ended when the company was sold and, thereafter, went out of business. (R. 190).

On July 26, 1999, plaintiff went to the Cook County Hospital emergency room, complaining of left hip pain. (R. 121). The physician's notes are mostly illegible, but it would appear plaintiff did not have a limp. (R. 121). X-rays revealed some mild sclerosis that could have represented early degenerative joint disease. (R. 123). He was diagnosed with degenerative joint disease, and given prescriptions for Extra Strength Tylenol and Ibuprofen. (R. 122).

Plaintiff returned to the emergency room with complaints of left hip pain on September 20, 1999. (R. 119). He also complained of occasional right hip pain and mild back pain. (R. 122). He said he had the left hip pain for two years, and the mild back pain for five or six years. (R. 122). Upon examination, there was no spine tenderness and full range of motion. (R. 119). Reflexes were normal. (R. 119). There was, however, a patch of decreased sensation in the left leg. (R. 119). The diagnosis was osteoarthritis of the left hip, and plaintiff was given a prescription for Naprosyn. (R. 120).

Dr. Shital Shah performed a consultative examination on plaintiff at the request of the state disability agency on January 11, 2001. (R. 124-127). Plaintiff claimed he had suffered low back and left hip pain since 1984. (R. 124). He claimed to use a cane, but was not using it that day. (R. 124). He also claimed to have experienced left wrist pain for seven years. (R. 124). Plaintiff also stated he had a history of asthma. (R. 125). Plaintiff was limping on the left side. (R. 126). Examination of the left wrist revealed full range of motion, normal muscle and grip strength, and no tenderness. (R. 126). Range of motion of the lower back was normal at 90 degrees flexion, and 30 degrees extension. (R. 126). Plaintiff complained of left hip pain when squatting. (R. 126). Left hip range of motion was limited at 50 degrees flexion, and 10 degrees abduction, internal and external rotations. (R. 126). Muscle strength was slightly decreased in the left leg. (R. 126). Sensation was normal, as were deep tendon reflexes. (R. 126). An x-ray of the left hip was negative; osseous and joint structures were normal, joint spaces were well-maintained, and there was no evidence of major joint pathology. (R. 129).

On February 16, 2001, a state agency physician reviewed plaintiff's medical records. (R. 130-137). The doctor felt plaintiff could essentially perform medium work¹. with the additional limitations of being able to stoop only occasionally, and not being able to work around fumes, dusts, or poor ventilation. (R. 131-134). Plaintiff underwent x-rays of his lumbar spine and left hip on February 4, 2002. (R. 155). The left hip study was normal, while the lumbar spine x-ray revealed evidence of severe degenerative disc disease at L4-5 and L5-S1, with marked narrowing of the disc spaces and marginal spurs. (R. 155).

At the administrative hearing, plaintiff testified that he suffered from pain in his back, left hip and left wrist. He stated that he used a cane to walk, but had not brought it to the hearing. (R. 176-177). He estimated he could walk just thirty feet without his cane, and perhaps a block with it, before having to stop. (R. 204-205). He thought he could sit for thirty minutes before he had to get up. (R. 205). Plaintiff said he could probably lift fifteen pounds. (R. 206). Plaintiff has attempted to worked twice since his welding job ended. He had a job as a garbage sorter in 1997, but was "off ill too much" (R. 82, 157). He worked as a janitor at a nursing home in 2000, but could not tolerate being on his feet that much. (R. 186). Plaintiff testified that while he sometimes cooked, his friend usually did the cooking. (R. 191). He stated that he was "not really" able to do any household chores like vacuuming, mopping, sweeping, or taking out garbage. (R. 192). His friend's grandson "volunteered" to perform these tasks. (R. 192). Plaintiff said he did not grocery shop because the cold air from the freezers bothered his leg. (R. 194). According to plaintiff, he does not sleep well due to his leg bothering him. (R. 195). Plaintiff testified that he takes medication for his blood pressure and uses an inhaler for his asthma. (R. 197-198). He takes aspirin for his back and hip pain. (R. 203).

The VE testified that plaintiff's work as a welder was medium work. (R. 217). The ALJ asked the VE to consider a worker with an eleventh-grade education; with the capacity to lift twenty pounds occasionally and ten pounds frequently; sit and walk consistent with light work; occasionally climb stairs, stoop, crouch, or kneel; with the inability to climb ladders, work around heights, crawl, or work around respiratory irritants. (R. 219). The VE felt that such an individual could not perform plaintiff's past work as a welder, but could perform other jobs existing in significant numbers in the region. (R. 219). Specifically, the VE cited small parts assembler (15,000 jobs), inspector/packager (10,000 jobs); and unskilled cashier (15,000 jobs). (R. 219).

B. ALJ's Decision

After considering all the evidence of record, the ALJ determined that the plaintiff did not have an impairment, or combination of impairments, that met or equaled an impairment listed as disabling in the Commissioner's regulations. (R. 23). The ALJ also found that the plaintiff's subjective complaints were not totally credible. (R. 23). According to the ALJ, the plaintiff retained the capacity to perform less than a full range of light work. (R. 23). Under the Commissioner's regulations, light work:

involves occasionally lifting no more than twenty pounds with frequent lifting or carrying of objects weighing up to ten pounds, or it may involve infrequent lifting but require substantial walking or standing or sitting with the pushing or pulling of arm or leg controls.

20 C.F.R. §§ 404.1567(b); 416.967(b). The ALJ found the plaintiff was limited in his ability to climb, work around heights, work around respiratory irritants, and crawl. (R. 23). Considering the plaintiff's vocational factors—age, education, and transferable skills—the ALJ noted that, without the additional limitations, the Medical-Vocational Guidelines would provide a framework for determining that plaintiff was not disabled.² (R. 23). Relying on the VE's testimony, the ALJ noted that, even with the additional limitations, there were a significant number of jobs in the economy which plaintiff could perform. (R. 23). As a result, the ALJ found plaintiff not disabled under the Act. (R. 23). This stands as the Commissioner's decision and is presently before this court for review. 42 U.S.C. § 405(g).

II. ANALYSIS

The applicable standard of review of the Commissioner's decision is a familiar one. The Social Security Regulations provide a five-step inquiry to determine whether a plaintiff is disabled:

1) whether the plaintiff is currently employed;

2) whether the plaintiff has a severe impairment;

3) whether the plaintiff has an impairment that meets or equals one of the impairments listed as disabling in the Commissioner's regulations;

4) whether the plaintiff can perform his past relevant work; and

5) whether the plaintiff is capable of performing work in the national economy.

20 C.F.R. §§ 404.1520; 416.920; Knight v. Chater, 55 F.3d 309, 313 (7th Cir.1995). The burden of proof is the plaintiff's through step four; if it is met, the burden shifts to the Commissioner at step five. Id. In this case, the ALJ determined, at step five, that plaintiff was capable of performing jobs that exist in significant numbers in the regional economy. The plaintiff argues that the ALJ's decision is not supported by substantial evidence because he failed to fully develop the record and "played doctor" in his assessment...