Welsh v. Halter

170 F. Supp. 2d 807, 2001 WL 428164
CourtDistrict Court, N.D. Illinois
DecidedApril 25, 2001
Docket99 C 8049
StatusPublished

This text of 170 F. Supp. 2d 807 (Welsh v. Halter) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Welsh v. Halter, 170 F. Supp. 2d 807, 2001 WL 428164 (N.D. Ill. 2001).

Opinion

MEMORANDUM OPINION AND ORDER

GOTTSCHALL, District Judge.

Plaintiff Vicki A. Welsh seeks judicial review of the Commissioner’s final decision to deny her request for Disability Insurance Benefits under the Social Security Act, 42 U.S.C. §§ 416(i), 423(d). This matter was referred to Judge Rosemond, who issued a Report and Recommendation (“Report”) on March 7, 2001. Judge Rose-mond recommended that the court enter summary judgment in favor of the Commissioner. For the reasons set forth below, Judge Rosemond’s Report is adopted in part and rejected in part.

I. Background

A. Facts of the Case

The following facts are taken from Judge Rosemond’s Report. The Report accurately sets forth the facts supported by the administrative record, and those facts are not in dispute.

Hearing Testimony

Plaintiff was 48 years old at the time of the hearing. She graduated from high school, where she was in special education and the EMH program for the mentally handicapped. Her previous jobs included serving as a cook in a children’s home for fifteen years; then as a merchandise pri-cer at a Sears outlet store; then as an assembly worker at a factory for six months; and then as a fast food cook for a short time. Plaintiff also participated in a Department of Rehabilitation Services (“DORS”) training program for ten months (also known as the Jewish Vocational Service (“JVS”)), but has had no employment thereafter (from January 1995).

During the 10 months in the DORS program, Plaintiff worked for an Environmental Protection Agency building, where she assisted employees with office supplies. In this capacity, Plaintiff filled out forms and got the office supplies. However, Plaintiff testified that she could not do the *810 job after a while because there was too much standing and walking involved.

Plaintiff testified that she gets pain in several places, mainly the neck, shoulders, back, knees, backs of her legs and toes. She explained that if she were to work all day, she would be in constant pain; even writing a letter would cause her pain the next day. Plaintiff is right-handed, and testified that her fingers hurt when she tries to write, or type, or do housework such as scrubbing counters. The pain is localized in the fingertips and top joints of the fingers, along with the wrist, the right hand being worse than her left in this regard. Plaintiff maintains that she has difficulty grasping heavy items, such as coffee cups and glasses, and picking up small items from a tabletop.

The ALJ inquired about Plaintiffs attempts at weight loss, to which Plaintiff responded that it was difficult to maintain a diet program due to her stomach condition. She stated that she has an ulcer and a “nervous” colon, which can be aggravated by several factors, including nervousness, certain foods, the heat, and dairy products. (R. at 297). Occasionally, her ulcer flares up requiring her to use the .bathroom about three times every 10 minutes at the onset of the flare-up, after which she is usually able to control the situation with Pepto-Bismol.

Currently, Plaintiff takes three different medications to treat her ulcer, fibromyal-gia and sinus pressure and related dizziness. She has tried a number of pain medications over the years, but her current medicine, Arthrotec, is the strongest and most effective. In addition, Plaintiff has glaucoma and a tumor in her right eye that she has been treating with antibiotic drops.

Plaintiff attributes her nervousness to her hearing difficulty. Plaintiff is deaf in her right ear, and uses a hearing aid in her left ear. She reads lips to supplement her hearing, and has difficulty understanding what people are saying when they are looking away from her.

Plaintiff states that she can walk about forty-five minutes to an hour to the store and back. She testified that she can lift 10 pounds, but gets out of breach at this exertion. She cannot sit for more than 30 minutes without getting stiff, and she can sometimes remain standing for about 30 minutes to do housework. Plaintiff experiences shoulder pain and dizziness when she reaches up over her head to a shelf.

Plaintiff testified that usually three or four days out of the week are “bad days” for her, wherein she experiences one or more of her ailments. (R. at 317). On these bad days, which usually occur if she has done some work on the previous day, Plaintiff devotes the entire day to rest, usually sitting or lying down. In her own judgment, Plaintiff states that her joint and muscular pain is the impairment that most prevents her from working an eight-hour day.

Plaintiff testified that she prepares the evening meal every night at her home for her family. She can sew, go to church, walk to the store and back, and reads with the aid of glasses. Plaintiff spends “a good deal of time” reading, and visits the library every couple of weeks to check out new books. (R. at 305, 318).

Testimony of the Vocational Expert.

Dr. Richard Hamersma, a vocational expert, testified at Plaintiffs hearing. The ALJ gave Dr. Hamersma a hypothetical individual with approximately the same age, education level and medical diagnoses as Plaintiff. The residual functional capacity of this individual was limited by the ALJ as follows: lifting not more than 20 pounds occasionally and 10 pounds fre *811 quently; standing no more than two hours in an eight-hour workday; sitting for no more than six hours of an eight-hour workday; only occasional climbing, stooping, crouching or crawling; no work around heights or dangerous moving machinery; only one-to-one communication with coworkers and supervisors; and no work requiring acute bilateral hearing.

According to Dr. Hamersma, this individual could perform work at the sedentary to light unskilled level in a sit/stand position. Specifically, the vocational expert testified that such an individual would be able to perform jobs such as an assembler, hand packager and inspector. Dr. Hamersma stated, however, that this individual would not be able to perform Plaintiffs past jobs as a cook and a merchandise pricer.

The ALJ’s other hypothetical assumed an individual at the sedentary level with an added limitation of difficulty grasping and manipulating objects, or using her hands frequently. Dr. Hamersma found in this situation that there would be no work available for such an individual. Plaintiffs counsel questioned the vocational expert about the impact that Plaintiffs need to lie down during the course of an eight hour workday would have on the availability of work. Dr. Hamersma replied that it would depend on the length of time and the frequency with which such extended breaks would take place. He also stated that the customary tolerance in the workplace would not allow an individual to take three or four days of absence per month. Although one hypothetical posed by Plaintiffs attorney included a daily nap, none of the hypotheticals posed to the vocational expert included Plaintiffs alleged fatigue, sleep apnea, and daytime somnolence.

Medical Evidence

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170 F. Supp. 2d 807, 2001 WL 428164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/welsh-v-halter-ilnd-2001.