Moore v. Astrue

• Decision Date: 03 April 2012
• Docket Number: No. 10 C 7972.,10 C 7972.
• Citation: 182 Soc.Sec.Rep.Serv. 77,851 F.Supp.2d 1131
• Parties: Nellie MOORE, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Illinois

851 F.Supp.2d 1131

182 Soc.Sec.Rep.Serv. 77

Nellie MOORE, Plaintiff,

v.Michael J. ASTRUE, Commissioner of Social Security, Defendant.

No. 10 C 7972.

United States District Court,

N.D. Illinois,

Eastern Division.

April 3, 2012.

Barry Alan Schultz, Law Offices of Barry Schultz, Evanston, IL, for Plaintiff.

Donald R. Lorenzen, AUSA–SSA, United States Attorney's Office, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

JEFFREY COLE, United States Magistrate Judge.

The plaintiff, Nellie Moore, seeks review of the final decision of the Commissioner (“Commissioner”) of the Social Security Administration (“Agency”) denying her application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. § 423(d)(2). Ms. Mueller asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.

I.PROCEDURAL HISTORY

Ms. Moore applied for DIB on December 26, 2007, alleging that she has been disabled since January 1, 2001, due to hereditary hemolytic anemias—or sickle cell anemia—and discogenic and degenerative disorders of the back (Administrative Record (“R”) 45, 80). Her application was denied initially and upon reconsideration. (R. 51, 58). Ms. Moore then filed a timely request for hearing in pursuit of her claim on August 5, 2008. (R. 60).

An administrative law judge (“ALJ”) convened a hearing on August 5, 2009, at which Ms. Moore, not represented by counsel, appeared and testified. (R. 24–44). At this hearing, James Radke testified as a vocational expert. (R. 40–43). On January 4, 2010, the ALJ issued an unfavorable decision, denying Ms. Moore's application for DIB because she retained the capacity to perform her past sedentary work as a general office clerk. (R. 15–20). The ALJ's decision became the Commissioner's final decision on October 18, 2010, when the Appeals Council denied Ms. Moore's request for review. (R. 1–3). See 20 C.F.R. §§ 404.955; 404.981. Ms. Moore appealed that decision by filing suit in this Court under 42 U.S.C. § 405(g), and both parties consented to jurisdiction here pursuant to 28 U.S.C. § 636(c).

II.THE RECORD EVIDENCE

A.The Vocational Evidence

Ms. Moore was born on April 18, 1961, making her forty-nine years old at the time of the ALJ's decision. (R. 45). She finished a semester of college, but has no other vocational or specialized training. (R. 29). Ms. Moore is 5'2? tall and weighs 217 pounds. (R. 28). She has work experience in a commercial bakery, in data entry, and general office work. (R. 41). For the purpose of receiving DIB, Ms. Moore's insured status expired September 30, 2003. (R. 45). She has to prove she was disabled prior to that time. 42 U.S.C. § 423(c); Martinez v. Astrue, 630 F.3d 693, 699 (7th Cir.2011).

B.The Medical Evidence

Ms. Moore contends that she is eligible for DIB due to her sickle cell anemia. ( Plaintiff's Brief, at 2).¹ Additionally, she contends that she is obese and has hypertension, which should be taken into account as well. ( Plaintiff's Brief, at 10–13)

As it stands now, the record, although voluminous, contains precious little evidence to demonstrate what Ms. Moore's condition was prior to September 30, 2003. In fact, in her brief, Ms. Moore is able to unearth just three pages of medical notes pertaining to that time from the 600–page medical record. ( Plaintiff's Brief, at 3, 11). On March 12, 2001, Ms. Moore was suffering from a bout of bronchitis. (R. 587–88). Her doctor noted that her blood pressure was stable and that she had sickle cell disease. (R. 587–88). By April 3rd, Ms. Moore's bronchitis had resolved and she was in no pain; her blood pressure was again within normal limits. (R. 588). On April 25th, Ms. Moore had a follow-up examination for her sickle cell disease. At the time, the doctor noted that his “pt feels fine [no] complaints,” but said her typical crisis pain occurred in all joints. (R. 589). Ms. Moore had a normal echocardiogram on May 4th. (R. 603). On August 31st, Ms. Moore had a check up for her blood pressure, which was 132/94. She denied any problems with dizziness or vision; she had no edema. (R. 594). On September 14th, her blood pressure was 128/76 and, again, she was asymptomatic. (R. 594). Also in September, Ms. Moore was diagnosed with a cataract in her right eye. (R. 616). Vision was normal in her left eye but 20/50 in her right. (R. 608). With a small myopic shift, she was able to see 20/30. (R. 608). It was determined that she would be treated conservatively. (R. 616).

That appears to be all the medical evidence from the time prior to September 2003. It's certainly all the evidence—actually more—that Ms. Moore cites in her brief. After 2001, there is no record of any treatment until 2005. In January of that year, Ms. Moore had an appointment for a check up with a new doctor. She related how she worked out of her home scheduling appointments for her husband's carpet cleaning business. (R. 226). She had no pain or distress; blood pressure was 120/84 and “well controlled on current medications.” (R. 226–27). In November of 2005, Ms. Moore sought treatment for right wrist pain that she thought was due to sickle cell crisis. Hematology revealed it was unrelated. (R. 222). She had a full range of motion in her wrist and some mild tenderness. Blood pressure was normal and it was noted that her hypertension was benign. (R. 222–223). She was diagnosed with DeQuervain's tenosynovitis—an inflammation of the thumb tendons—and given a splint. (R. 223). About a month later, she had a steroid injection. (R. 449). At that time, she still had full range of motion and mild tenderness. (R. 449). Ms. Moore points to no other evidence in her brief. ( Plaintiff's Brief, at 14, n. 10). She cites no record of any treatment for a sickle cell crisis at any time. Although she claims there is evidence in the record that her blood pressure and obesity exacerbate her condition, the evidence she cites says nothing of the kind. ( Plaintiff's Brief, at 3–4, citing R. 164, 166, 589, 592–94). Hypertension is invariably referred to as benign. And, although Ms. Moore is clearly obese at about 200 pounds, no doctor appears to have referred to it as an issue—certainly not in any of the records Ms. Moore cites.

The only mentions of any treatment for sickle cell crisis—and indeed, any reference to a specific incident whether treatment was sought or not or whether sickle cell crisis was confirmed or not—comes from the Commissioner's brief. In August of 2006, Ms. Moore had right hip pain caused by a trip to St. Louis where the heat was extreme. (R. 369). There was no weakness or numbness, or pain with rotation of the hip. (R. 372–73).

Ms. Moore complained of sickle cell crisis manifesting as right shoulder pain in January 2007. (R. 299). At the time, it was said she had infrequent admissions for crises, but that they had become more common in the previous year. (R. 297, 209). In August of 2007, Ms. Moore sought treatment for a sickle cell crisis. It was precipitated by an upper respiratory infection and manifested as pain in her right hip. She had a full range of motion in her hip without discomfort. (R. 216). She was hospitalized for three days until the pain was tolerable on over the counter analgesics. (R. 214–15). Again, her hypertension was characterized as “benign” at that time. (R. 216). In October of 2007, the treating physician opined that Ms. Moore was ambulatory and able to carry out light or sedentary work. (R. 512–14). She denied any recent sickle cell crises. (R. 514). She was again said to be capable of sedentary or light work in November 2005. (R. 519). In December of 2007, Ms. Moore complained of tingling in her arms and legs, and felt she was having a sickle cell crisis. Her pain was 6 or 7 out of 10, and she refused pain medication because it was not significant enough. (R. 273). She had normal range of motion in her extremities and normal gait, strength, and sensation. (R. 275). There was no clear lateralization of symptoms and the treating physician felt she was not in pain crisis. (R. 275).

At the end of September 2007, Ms. Moore was admitted to the hospital due to a pulmonary emboli, causing shortness of breath and chest pain. (R. 305). The Agency arranged for Ms. Moore's medical evidence to be reviewed by Dr. Virgilio Pilapil on February 20, 2008, but he determined that there was insufficient evidence from the period before Ms. Moore's insured status expired to determine the severity of her impairments during that time. (R. 554–556). In December 2008, Ms. Moore was diagnosed with pneumonia, and medication was prescribed. (R. 268).

C.The Administrative Hearing Testimony

1.The Plaintiff's Testimony

At the outset of Ms. Moore's hearing, the ALJ explained to Ms. Moore that, because she was applying for DIB and her insured status expired September 30, 2003, she would have to prove she was disabled before that date in order to receive benefits. (R. 26). The ALJ then spoke to Ms. Moore about her right to representation. (R. 27). Specifically, she informed Ms. Moore that it may be to her benefit to obtain representation because it could help her present a case that was most favorable to her. (R. 27). The ALJ said a representative could “help [Ms. Moore] obtain information regarding [her] claim, explain medical terms and explain the proceedings that occur before [the ALJ].” (R. 27). The ALJ explained that a representative can only charge a fee if it is authorized by the SSA, and that there may be certain legal organizations that could help Ms. Moore for free if she met their requirements. (R. 27). The ALJ then asked if Ms. Moore would like her hearing postponed so she could talk with a representative, and took care to tell Ms. Moore that “[i]f after the hearing [she wasn't] happy or [she was] not 100 percent satisfied with the decision that's not the time to say, gee, I wish I had talked to somebody about my case.” (R. 28). Ms....