Oyen v. Shalala, 94 C 6.

• Decision Date: 16 November 1994
• Docket Number: No. 94 C 6.,94 C 6.
• Citation: 865 F. Supp. 497
• Parties: Robin OYEN, SSN XXX-XX-XXXX, Plaintiff, v. Donna SHALALA, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of Illinois

865 F. Supp. 497

Robin OYEN, SSN XXX-XX-XXXX, Plaintiff, v. Donna SHALALA, Secretary of Health and Human Services, Defendant.

No. 94 C 6.

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

October 11, 1994.

As Amended November 16, 1994.

COPYRIGHT MATERIAL OMITTED

Frederick J. Daley, Chicago, IL, for plaintiff.

James G. Hoofnagle, Jr., Chicago, IL, for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, Senior District Judge.

Robin Oyen ("Oyen") appeals the final decision of Department of Health and Human Services ("HHS") Secretary Donna Shalala ("Secretary") denying Oyen's claim for supplemental security income ("SSI") and disability insurance benefits under the Social Security Act ("Act"), 42 U.S.C. §§ 416(i), 423, 1382 and 1382(c).¹ As is usual in these cases, both Oyen and Secretary have moved for summary judgment under Fed.R.Civ.P. ("Rule") 56,² with Oyen alternatively moving for the remand of Secretary's determination. For the reasons stated in this memorandum opinion and order, Oyen's motion for remand is granted (so that her motion for summary judgment is denied, and Secretary's cross-motion is of course denied as well).

Facts

Oyen, a 39-year-old high school graduate who has also completed a six-week course in airline ticketing and reservations (R. 43), claims that as a result of a broken vertebra suffered in a May 15, 1991 motorcycle accident she became disabled until April 1993. At that point she resumed the US Air baggage handling job that she had held before the accident, so that her claim is limited to a period of just under two years.

Oyen's Hearing Representative

Oyen attended the Hearing before ALJ Greene without legal counsel but accompanied by a friend, Alice Byrne ("Byrne"). After a bit of discussion between Oyen and Byrne they agreed that Byrne would be Oyen's representative at the Hearing (R. 36). ALJ Greene then questioned Byrne as to her "experience with Social Security matters," to which Byrne responded (1) that she had "experience with recipients" of Social Security Disability Insurance and (2) that as to Social Security law and regulations she had not taken any formal classes but had looked at library books (R. 36-37). That led to this exchange (R. 37):

ALJ: Okay. All I, all I'm trying to do, ma'am, is to show that you're qualified to represent the claimant.

Representative: If she thinks I'm qualified then that's — I feel —

ALJ: Okay. You, do you feel your representative is qualified, ma'am?

Claimant: Yes.

ALJ: Okay. I'll go on with your wishes then and I'll allow your representative to proceed in your behalf.

Oyen's Testimony³

On May 21, 1991 Oyen's broken vertebra was operated on, involving a bone graft from her hip and the insertion of metal rods (including metal screws) in her back (R. 60, 61, 134). For three months afterwards she wore a brace over her torso (R. 60). After the brace was removed, in an effort to improve sufficiently to return to her prior job as a baggage handler (R. 45-46) she went to a work hardening program until March or April 1992, when she broke a toe (R. 60, 62, 67, 73). Once that injury was healed she did not resume the program because she was "scared to go back" due to a $6,000 outstanding bill that her insurance had not paid and that she did not know how to pay (R. 67).

Oyen's treating physician Dr. Paul Meyer told her to swim to aid the recovery process, so for 12 hours a week (about an hour at a time) Oyen would go to a pool and "mostly hold on to the side and just paddle my legs" (R. 64, 73-74). Though Oyen had felt pain in her back ever since the accident, some time after May 1992 she noticed a "different" pain in the small of her back (R. 68-70, 73). X-rays taken on August 26, 1992 disclosed that two screws in her back had broken. That necessitated additional surgery to remove the screws, a procedure that had not been performed as of the date of the Hearing (R. 61, 72, 249).

Oyen did not know if the cause of her ongoing back pain was that she knew of the broken screws or "because I saw the x-rays" (R. 68). When she leans back in a hard back chair it feels "like something stabs me," causing a "very, very severe" pain (R. 68, 69). If she is standing "it feels like somebody's got strings pulling me down in the back," causing a sensation of "a lot of pressure" (R. 69). Her "back would hurt bad" whenever she sat, stood or walked "in excess" (R. 75). Oyen's pain limits her ability to bend, but she can squat to pick things up. Her pain causes no other problems, and the only medication she takes for it is "aspirin or an Advil" or Tylenol, but "not even once a week," which is no more than she took such medication before her accident (R. 71, 76).

Oyen can "probably walk for maybe two hours if I could sit for like a few minutes in between" and can also sit for "I'd say two hours. But I'm constantly like switching, switching sides" (R. 66). She did not know if she could work an entire eight-hour day even if able to sit and stand alternately, but she had gotten up to "four or five" hours at her work hardening program (R. 66-67). She could lift "without a problem maybe 10, 15 pounds," but could not do so over her head with the broken screws in her back (R. 66).

Oyen intended to return to her prior job with US Air once the broken screws were removed from her back and she had time to recuperate (R. 72). After she said that, ALJ Greene asked Oyen whether she could handle a job, if "today" US Air offered one, where "you don't have to lift any baggage, at most you might have to lift 20 pounds once in a while, you know, maybe you might have to lift 10 pounds at a more frequent level ... and you would be standing maybe 6 out of 8 hours a day" (R. 74). Oyen responded "I believe I could" (id.). But she then said she did not know if she could stand for six hours because of her back pain (R. 74-75). And later she testified that because of her back pain she could not return to her US Air job (R. 80) — a job that involved lifting 20 to 40 pounds frequently and 50 pounds occasionally, and standing most of the day (R. 46-48).

Testimony of the Vocational Expert ("VE")

VE Thomas Dunleavy ("Dunleavy") also testified at the Hearing (R. 83-91). ALJ Greene first posed a hypothetical question as to what jobs could be performed by a person with Oyen's age, education and work history who was able to do a full range of light work, but with only occasional stooping, kneeling, crouching and crawling (R. 86-87). Dunleavy responded that these are the relevant unskilled jobs in the "six county area of Chicago" (R. 87):

1. 8 to 10 thousand as assemblers in manufacturing,

2. 8 to 10 thousand in packing operations,

3. 10 to 15 thousand as cashiers and

4. 200 as reservation agents.

When next presented with the same hypothetical except for assuming a sedentary rather than a light work level (R. 87), the VE listed these relevant unskilled jobs (R. 88):

1. 6 to 7 thousand as assemblers,

2. 4 to 5 thousand as packagers,

3. 8 thousand as cashiers and

4. 6 to 7 thousand in customer service, sitting at a desk and answering questions.

If a sit-stand option were required, with the hypothetical person not having to change position more often than every 20 minutes, VE Dunleavy said that the same jobs other than those in customer service would still be available (R. 88-89).

Finally, the VE was asked how his testimony would be affected if he were to credit Oyen's testimony as to her pain and functional limitations (R. 89). On that score VE Dunleavy's testimony was somewhat fuzzy. First he focused on Oyen's need for additional surgery to remove the broken screws and stated that "if a person is medically unstable that would have vocational impact," (id.) "possibly interfering with her ability to work" (R. 90). Then on further questioning by the ALJ, the VE said that "if a person could perform a job on a short, short basis but in fact was considered by sic for whatever reasons to be medically unstable, ... then I would certainly not be too inclined to assist a person in finding a job" (R. 90).

Medical Evidence at Hearing⁴

After her surgery Oyen was under the care of Dr. Meyer, whose August 21, 1991 examination noted that the incision in her back "does not cause her discomfort," that she suffers from "No Pain" (R. 220), that "Spine fracture healed, Hardware intact" (R. 185), but that she was (R. 184):

Restricted from heavy lifting. Has not yet been medically released to work yet.

Just over a month later (on September 25, 1991) another examination by Dr. Meyer disclosed "satisfactory spinal healing and alignment with solid internal fixation" (R. 214). "Because a light duty position is not available" at US Air, Dr. Meyer then "recommended that she remain off work for an additional eight weeks" (id.). On December 2, 1991 Dr. Meyer observed that Oyen's x-rays continued to disclose "intact internal fixation" (R. 212), and he referred her to a work hardening program at STEPS Industrial Rehabilitation Clinic ("STEPS") (id., R. 207) so that she would be able to meet the physical demands of her baggage handler job.

STEPS' March 20, 1992 progress note (R. 200) said that Oyen "is tolerating up to 4 hours of work hardening daily," rated her pain at a level 5 or "moderate" ("she rates ... her back pain as better, (foot pain is worse)") and predicted that after two more weeks of the program she would be able to tolerate a full eight-hour day at the "medium work level" required by her prior job (id.).⁵ But the note went on to say that a possible hairline fracture in her left foot "has prevented client from participating fully in the program over the past week" (R. 200). One month later (on April 20, 1992) STEPS reported (R. 236) that Oyen had been "on hold from participating in the program" since March 20 due to a metatarsal fracture, so that the March 20 progress note only "indicates her level of work tolerated prior to her foot injury." Oyen was then discharged from the program because of...