Mullen v. Astrue

Filing 28

MOTION by Plaintiff Daniel T Mullen for judgment (Mullen, Michael)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Daniel T. Mullen,
Plaintiff,
v.
Michael J. Astrue,
Commissioner of Social Security,
Defendant.

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Case No. 12 CV 3751

Magistrate Judge Mason

PLAINTIFF DANIEL T. MULLEN'S MOTION AND MEMORANDUM FOR
SUMMARY REVERSAL OF COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION'S DENIAL OF DISABILITY OR ALTERNATIVELY FOR
REVERSAL AND REMAND TO A DIFFERENT ADMINISTRATIVE LAW JUDGE
NOW COMES Plaintiff, Daniel T. Mullen, by his attorney, Michael Patrick Mullen of
the law firm of Mullen & Foster, and seeks Summary Reversal of Commissioner's denial of
disability benefits or alternatively for reversal and remand to a different Administrative Law
Judge ("ALJ"), and in furtherance states as follows:
Appeal is made of the unfavorable Decision of Office of Disability Adjudication and
Review dated September 21, 2010. (Record - Court Transcript Index p. 8). ("Decision"). The
Decision held Claimant has not been under a disability and is capable of performing past relevant
work as an accountant. That determination and Decision misconstrues the evidence, is against
the weight of the evidence and ignores more recent evidence and misapplies the law. Claimant
requests a determination of disability and eligibility for disability benefits, or alternatively that
the case be returned to another ALJ for a new decision.
INTRODUCTION

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Daniel Timothy Mullen ("Daniel"), age 43 at time of hearing, now age 45, suffers from
moderately advanced early onset Parkinsons Disease ("PD"), an incurable progressive disease
which is progressing rapidly causing worsening symptoms, significant deterioration and
increased disability. He is not able to perform work or work as an accountant because of his PD
symptoms including deteriorated ability to use a computer and keyboard which is seriously
hampered, an inability to write adequately and cognitive symptom deterioration. Hearing Tr. pp.
39-40.
Daniel also has had two total hip replacements, in 2002 and 2005. He suffered
complications in 2006 after his last hip replacement surgery in 2005. The hip replacements are a
secondary medical disability condition which aggravate the effect of the PD symptoms. Hearing
Tr. pp. 27-28. The ALJ relied upon early medical records including several not related to PD.
But these references to medical evidence of 2005 and 2006 are separate from PD or its intensity,
persistence or functionally limiting effects.
Daniel's debilitating PD symptoms are tremors in both left and right extremities, legs and
arms, as well as neck and torso tremors; significant muscle rigidity; bradykinesia (slow
movement); dyskinesa (involuntary movements); facial masking; limited hand dexterity and
postural instability. Hearing Tr. Pp. 29-31, 33-39.
In addition, Daniel has suffered cognitive deterioration because of PD and his required
medication. He suffers from inability to concentrate, lack of ability to think clearly, fuzzy
thinking, inability to focus on and complete tasks, deteriorating memory and deteriorated ability
to communicate clearly and effectively. Hearing Tr. pp. 39-40.

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Daniel takes extensive PD medication1 daily which produce only partial relief, the length
and onset of which is unpredictable. The time between prescribed doses is four hours. The time
and sequence of dosing is restricted by the need to pace the medication because its effectiveness
will lessen with sustained prolonged use over time. The medication provides about 75% relief
while effective. The onset of the effectiveness of the medication is now about 60 to 75 minutes
after taking it, up from 30 to 45 minutes previously. That results in a effective medicated
window of about 2 and 3/4 hours for every 4 hours where he is about 75% relieved of his
symptoms. The exact onset of effectiveness is unpredictable. He is always subject to his
symptoms at about 25% intensity even while his medication is effective. Hearing Tr. pp. 35, 3740.
CLAIMANT MEETS THE REQUIREMENT OF MEDICAL LISTING 11.06 FOR
PARKINSONIAN SYNDROME
It is uncontestable that Daniel meets all of the requirements of Regulation 20 C.F.R. Part
404, Subpart P Appendix 1 11.06 Parkinsonian Syndrome consisting of significant muscle
rigidity, bradykenesia (slow movement) or tremors in two extremities (here both his legs and
arms), dyskinesa (involuntary movements) limited hand dexterity and postural instability.
Hearing Tr. pp. 30, 33-35, 37-40. Therefore he clearly is disabled contrary to the initial
determination rejecting the claim, the 09-21-10 Decision of the ALJ and the rejected review of
appeal of that ALJ decision by the Appeals Council.
The ALJ (Decision, p.4) found that claimant does not meet Medical Listing 11.06 for
Parkinsonian Syndrome. That determination ignores the record including medical records
submitted and Claimants testimony. That finding is inaccurate and clearly erroneous. See

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Sinemet 4 times a day, Azilect 1 time a day and Mirapex 3 times a day.

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Exhibit 11-F and 12-F2, especially the most recent 07-24-10 evaluation by Dr. Dexter, one of his
treating physician for Parkinson Disease, diagnosing moderately advanced Parkinson Disease.
The medical evidence submitted clearly shows the relevant symptoms establishing
qualification under Medical Listing 11.06. In addition, Claimant testified to these symptoms
which result in sustained disturbance of gross and dexterous movements or gait and station.
Hearing Tr. pp. 33-34, 37-40.
Indeed even at the hearing, the ALJ noted he observed tremors in Claimants left arm and
hand despite medication. Hearing Tr. pp. 37-38.
A claimant who establishes that he suffers from one of the impairments listed at 20 CFR
pt 404 Subpt P App 1 is considered disabled without further inquiry. Regulations recognize that
certain impairments are so severe that they prevent a person from pursuing any gainful work.
Heckler v. Campbell, 461 US 458 (1983). If claimant is not currently employed, has severe
impairment and that impairment meets or equals listed impairment, he will automatically be
found disabled. Knight v. Chater, 55 F.3d 309 (7th Cir. 1995).
If an error of law is committed by the Commissioner then the "Court must reverse the
decision regardless of the volume of evidence supporting the factual finding. Binion v. Chater,
108 F.3d 780, 782 (7th Cir. 1997), Talmo v. Astrue, 2012 WL 1952575 (N.D. Il.). The failure to
apply Medical Listing 11.06 for Parkinsonian Syndrome is an error of law.
The ALJ merely made a boilerplate recital in his decision that "the Claimant does not
meet or equal Medical Listing 11.06 for Parkinsonian Syndrome because the record does not

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That evidence was submitted by fax on 08-12-10 after Social Security informed the undersigned that would be
timely and the material would be associated for the 8-17-10 hearing. However upon learning just prior to the
hearing that the ALJ did not have the material it was resubmitted to the ALJ. The ALJ was visibly upset and
expressed anger at Claimant and his counsel stating he didn't appreciate not getting the evidence before hand and cut
off counsel from then explaining the circumstances although he later allowed counsel to explain and apologize.
(Hearing Tr. pp. 24, 30).

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contain signs of significant rigidity, bradykenesia or tremors in two extremities which singly or
in combination result in sustained disturbance of gross or dexterous movements or gait and
station." The Seventh Circuit has made clear such boilerplate recital is not enough to fulfill
SSR96-7p. McClesky v. Astrue, 606 F3d. 351, 352 (7th Cir. 2010).
This ALJ determination contradicts what the ALJ said at the hearing. The ALJ stated that
claimant submitted evidence that he fits within the Medical Listing 11:06. (Hearing Tr. p. 41).
The ALJ also stated that putting aside the age issue, he would qualify under the Parkinsons
Syndrome listing. (Hearing Tr. pp. 33-34).
THE DECISION SHOULD BE REVERSED
The Decision is incorrect and should be set aside. The Decision misconstrues the facts, is
against the weight of the evidence and ignores and misapplies the law.
One significant error in this case is the failure of Social Security to recognize that
Daniel's condition is deteriorating while the case continues. The original claim was made on 0912-08, the appeal filed on 06-10-09, medical evidence was updated through 07-29-10 and the
hearing occurred on 08-17-10. The operative date is the hearing date. His symptoms have
clearly gotten worse as established by the medical evidence. (See Exhibits 11-F and 12-F.)
The ALJ seems to have confused the sequence of Daniel's PD treatment and the role of
the Doctors involved. Daniel was first diagnosed with PD on 06-06-08 by Dr. Dexter who
placed him on PD medication and remains his treating physician seeing him regularly since.
Daniel later went to Dr. Sa referred to extensively by the ALJ who confused Dr. Sa as his
treating doctor for PD which he was not. Dr. Sa was only seen for a second opinion regarding
PD on 09-09-08. Dr. Dexter was the treating physician. Dr. Sa was confused in his report
relating a "four year history" when Daniel had only been diagnosed with PD three months earlier

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by Dr. Dexter. He diagnosed Parkinsons Disease. Dr. Sa prescribed medication for Daniel that
was deleterious which Daniel did not use and Daniel did not return to Dr. Sa. Dr. Sa's opinion
has been proven wrong by prior and subsequent Doctors' opinions. On March 10, 2009 upon
Social Security inquiring, Dr. Sa wrote "currently his disease is mild and not interfering with his
activities of daily living." (Underlining supplied)(Exhibit 7F/10). However, Dr. Sa had not seen
Daniel for six months and there was no basis for this 03-10-09 statement. He was not currently
treating Daniel or seeing him. More current Doctors' opinions describe Daniel's condition as
moderately severe. That 03-10-09 Dr. Sa statement was quoted and highlighted by the ALJ and
in the initial rejection of disability report as significant. It should not be. It is inaccurate. Even
the ALJ finds the PD symptoms "albeit severe", certain and credible and established by medical
reports. (Decision, p. 5,7). Dr. Sa's statement should be rejected and disregarded. More
importantly it is outdated. Focus should be on recent medical evidence reflected in Ex.'s11-F
and 12-F and the overall evidence showing disease and symptom progression as well as
lessening effectiveness of medication.
Dr. Dexter's reports consistently noted PD, rigidity, tremors, bradykenesia and other PD
symptoms and document the progression of the disease thru 07-29-10.
Dr. Bower, a specialist from Mayo Clinic examined Daniel on 03-16-10 noting PD,
tremors, rigidity, stiffness, slow movement and difficulty walking and documents the progression
of the PD and lessening effectiveness of the medication and increasing gaps in effectiveness.
The ALJ improperly held Daniel's testimony regarding PD symptoms is not credible as
inconsistent with the RFC. The Decision, p.5, states "the [ALJ] finds that the claimants
medically determinable impairments could reasonably be expected to cause the alleged
symptoms, however, the claimants statements concerning the intensity persistence and limiting

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effects of these symptoms are not credible to the extent they are inconsistent with the above
residual functional capacity assessment." (underlining supplied). Claimant disputes that the
testimony is inconsistent with anything reflected in 5-F residual function assessment.
The ALJ states he gave "great weight to the State agency medical opinion" (Decision,
p.7) but does not cite any specific document. The undersigned is unable to locate any State
agency medical opinion labeled as such in the record. Instead the Physical Residual Functional
Capacity Assessment ("RFC") appears to be the referenced document at Exhibit 5-F by Syd
Foster O.D. dated 01-08-09 almost 18 months before the hearing. It does not reflect Daniel's
current deteriorated status at the hearing. The assessment does not indicate its source. Dr. Foster
never examined Daniel so it must be based upon unspecified secondary sources. (Daniel has
submitted three Functional Reports. The first dated 11-24-08 is Exhibit 3-E. The second dated
06-10-09 is part of the appeal request and an updated Report dated 07-28-10 is part of Exhibits
12-F and 13-F. The 07-28-10 Report is the most relevant which shows the current state of the
progression of the disease at the hearing).
The Foster RFC assessment, Exh. 5-F, relied upon by the ALJ to support the ability to
work is dated 01-08-2009, is woefully incomplete and does not cover work related functions.
RFC Exhibit 5-F does not cover physical limitations, manipulative limitations or communicative
limitations, leaving those sections blank, stating "none established", when all are covered in the
medical records as well as Daniel's functional reports and testimony. Dr. Foster stated there
were no medical source statements regarding physical capacities in file. P.7. Dr. Foster ignored
the medical record evidence regarding physical capacities in the record. The Foster report is
contradictory in that it states there are no postural limitations established (p.4), yet on p. 8
additional comments it recognizes claimants "some postural instability, trouble standing for

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extended periods, trouble getting around/ moving around." There is no reference whatsoever to
the gaps in effectiveness of the medication. All of the functional reports submissions by Daniel
and the supporting medical records are consistent and establish the increasing severity and the
gaps in medical control of symptoms supporting disability and inability to work as an
accountant.
For exertion limitations, Foster stated Daniel can life 20 pounds occasionally, stand or
walk about 6 hours in an 8 hour workday, sit 6 hours in 8 hours and is unlimited to push or pull
including operation of hand and/or feet controls. None of which are accurate or supported by the
record. All are contradicted by the medical evidence.
Dr. Foster's statement regarding "medication have adequate control" is completely
unsupported by the record and is incorrect. He cites no specifics nor does the ALJ.
Dr. Foster's RFC assessment completed on 01-08-2009 was Defendant's final medical
portion of the disability determination. At that time Daniel had only been diagnosed with PD in
June 2008 by Dr. Dexter, who tested him on 06-06-2008, Ex. 11F and 08-07-2008 Ex. 12F
neither of which are referenced in the RFC.
Dr. Dexter's examinations, opinions and medical evidence of 06-17-2009, 12-18-2009
and 07-29-2010, where obviously not considered in the RFC. Nor was Dr. Bower's evidence of
03-16-2010. Although the evidence was available to the ALJ it was not part of what the RFC
relied upon yet given "great weight" by the ALJ. The ALJ must access the RFC based upon all
the relevant evidence of record. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004) 20 CFR
404 1545(a). Reversal is required based upon this defect alone.
The ALJ stated "whenever statements about the intensity, persistence or functionally
limiting effects of pain or symptoms are not substantiated by objective medical evidence, the

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undersigned must make a finding on the credibility of the statements based on a consideration of
the entire case record." This is another insufficient boilerplate recitation that must be rejected.
McClesky at 352.
The ALJ is incorrect that Daniel's testimony of symptoms of rigidity, tremors in two
extremities and bradykinesia, is not substantial and not substantiated by objective medical
evidence. (Hearing Tr. pp. 30, 33-35, 37-40). It is substantiated by treating physicians Dr.
Dexter and Dr. Bower. Dr. Dexter on 07-29-2010, Ex. 12F, p. 307, reported his moderately
advanced Parkinsons is progressing and noted dyskinesia and significant bradykinesia and
increased tone.
Dr. Bower, a Parkinson's subspecialist, on 03-16-2010, Ex. 12F, p. 310, reported "he has
a left greater than right leg tremor and a left arm tremor at rest" and significant gait problems.
Dr. Dexter also on 12-18-2009, Ex. 12F, p. 312, reported "Daniel's Parkinsons disease
advancing" with marked facial masking, tone increased bilaterally left more than right, slowed
motion rates, difficulty rising from chair and forward flexed gait and decreased arm swing.
Daniel reported his Parkinsons worsening with more symptoms on left side as well as right side,
less steady when walks, more slowed in movements and more impaired.
Dr. Dexter also on 06-17-2009, Ex. 12F, p. 313, reported Parkinson tremor over left
upper and lower extremity, severe facial masking, bilateral tone increased with cog wheeling, left
more prominent than right, and gait short stepped and shuffling.
Dr. Dexter also on 08-07-2008, Ex. 12F, p. 315, reported patient struggling with
significant Parkisonian features which persist.
Dr. Dexter also on 06-06-2008, Ex. 12F, p. 316, reported Parkinsons with facial masking,
tremor left more than right, increased tone, forward flexed gait and decreased arm swing.

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Dr. Dexter is Daniel's primary treating physician and Dr. Bower is also a treating
physician. Dr. Dexter is not referred to or quoted by name by ALJ who appears to have not
adequately considered his medical evidence.
The ALJ must confront the evidence that does not support his conclusion and explain
why it is rejected. Indorato v . Barnhart, 374 F.3d 470, 474 (7th Cir. 2004), Talmo at *8. Here
ALJ did not do so nor is there any basis to reject the evidence.
Dr. Sa quoted extensively by the ALJ is not a treating physician. Dr. Sa was seen only
once by Daniel for a second opinion on Parkinsons on 09-09-2008. In his report dated 09-092008, Dr. Sa confirmed Daniel had Parkinsons syndrome. The report did not state Daniel's PD
did not interfere with his activities of daily living. Daniel did not like Dr. Sa and never went
back to him because Dr. Sa gave him a medicine which was deleterious.
Nevertheless Dr. Sa on March 10, 2009, Exh. 7F/10, was contacted by SSA and wrote
that "currently [claimants] disease is mild and not interfering with his activities of daily living."
Dr. Sa was not treating Daniel at the time of that letter and had not seen him since 09-09-08. He
was not then his treating physician. (Exh. 7F/7).
The ALJ makes inconsistent and contradicting findings and statements in his Decision.
At pg. 7 he states, "the undersigned does not deny the certainty of the objective medical evidence
and credibility of the subjective testimony suggesting the extent of Parkinsons symptoms restrict
the claimant in his daily activities. Yet at pg. 3, the ALJ states "In the functional area of
activities of daily living, the claimant has no limitation."
Although the ALJ above does not "deny the certainty of objective medical evidence and
credibility of the subjective testimony suggesting the extent of Parkinsons symptoms restrict the
claimant in his daily activities." He emphasizes Dr. Sa's negative comment of 03-10-2009 of

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Daniel's Parkinsons "not interfering with his activities of daily living" And the above ALJ quote
contradicts the ALJ finding and statement "the claimants statements regarding the intensity,
persistence and limiting effects of these symptoms are not credible." Decision pg. 5.
The treating physician's opinion regarding nature and severity of claimant's injuries is
entitled to controlling weight as it is well supported by medically acceptable techniques and not
inconsistent with other substantial evidence. Larson v. Astrue, 615 F.3d 744, 749 (7th Cir.
2010), quoting 20 CFR 404.1527(d)(2). Thus Dr. Dexter and Dr. Bowers medical opinions are
controlling, not Dr. Sa.
The ALJ (Decision, p.5) also inaccurately stated Daniel's 11-24-08 Function Report Ex.
3E states his postural instability, bradykenesia and tremors affect his memory and concentration.
This is inaccurate. The Function Report, p.6-20 states those symptoms affect all of his physical
movements and separately states memory and concentration level are deteriorating without
attributing any specific cause.
The ALJ did not consider all the evidence particularly that favorable to Daniel in his
evaluation of the case. The failure to consider and discuss the evidence both pro and con
amounts to a lack of sufficient reasoning and is reversible error. McClesky, 606 F.3d at 352,
Windus v. Barnhard, 345 F.Supp.2d 928, 946 (E.D. Wisc. 2004), Talmo v. Astrue at *7.
The ALJ recitation of the medical reports was selective and not balanced. For instance,
he reports Daniel reported "no falls" in the July 2010 Dr. Dexter (Exhibit 11-F 2/3 and 12-F 1/2)
examination but fails to note a fall reported in the Dr. Bower examination of 03-16-2010.
(Exhibit 12-F /3).
Perhaps the ALJ's selectivity and contradiction are attributable to his attitude and bias
regarding Daniel's disability. In the hearing, the ALJ impliedly accused Daniel of wanting to "sit

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around for the rest of your life picking up a government handout." (Hearing Tr. p. 40). That is
not a statement of a fair and impartial ALJ and certainly not an attitude of the SSA to assist
disabled people as they are obligated to do. A Social Security disability claim is not a
"Government handout." It is part of an insurance type benefit paid for and earned by taxes paid
by the claimant, not a handout. That comment and the attitude reflected is demeaning and not a
fair adjudication.
DANIEL UNABLE TO WORK
The Decision focused on older medical evidence from 2005, 2006 and early 2007 before
he was diagnosed with PD in 2008. The ALJ downplayed or ignored more recent PD medical
evidence in 2008, 2009 and 2010 which is most relevant. While his PD symptoms began in
December 2005 they progressed but were not diagnosed or treated until 2008. It also ignored
evidence of inability to perform work as an accountant without any record evidence that Daniel
can perform work as an accountant currently. Indeed all evidence regarding ability to currently
work as an accountant is contrary. Yet the ALJ concludes Daniel is not disabled and can
perform a full time job as an accountant because it "requires lifting less than 10 pounds, walking
no more than 1 hour and sitting no more than 5 hours in a 8 hour workday." (Decision p. 7).
The most immediate past relevant work was in sales and marketing in a family owned
business marketing authentic Native American arts, crafts and jewelry. (Hearing Tr. p. 27). The
job required strong physical ability and required extensive travel, which Daniel cannot now
perform. In addition, that job is not now available. Any sales and marketing job would require
extensive travel and physical demands which Daniel clearly would physically be unable to
perform.

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The segmented factor analysis for disability factor 5, (can the claimant perform other
work), places the burden of proof on the defendant. Knight v. Chater, 55 F.3d 309, 313 (7th Cir.
1995). The defendant must provide evidence showing that claimant is able to do the work and
that it is available. Here the defendant did not do so, the record is devoid of any such evidence.
Here the claimant meets the PD Syndrome Medical Listing 11.06 so he is disabled and the
inquiry ends. But even if it did not, the Defendant has not met it's burden and disability should
be found or at minimum the case should be remanded.
Daniel has not done accounting work since before 2005. That determination that Daniel
can work full time as an accountant ignores the limited time window of effectiveness of Daniel
medical regime of about 2 and 3/4 hours at 75% effectiveness every 4 hours. The medication is
not effective for about 1 1/4 hours every 4 hours. Thus Daniel suffers from the symptoms of
tremors in extremities, neck and torso, significant rigidity, bradykinesia, dyskinesa postural
instability and limited hand dexterity. The determination also ignores record evidence of
cognitive deterioration consisting of inability to concentrate, fuzzy thinking, inability to think
clearly, inability to focus on and complete tasks, deteriorating memory and ability to
communicate clearly and effectively. Accountants must be able to utilize computers, computer
keyboards and other equipment well which Daniel cannot do. The record evidence and
testimony is that Daniel can no longer perform satisfactorily and successfully as an accountant
(Hearing Tr. pp. 29-31, 33-39) and there is no contrary evidence, only the ALJ's unsupported
speculation.
The ALJ states he "does not deny the certainty of the objective medical evidence and
credibility of the subjective testimony suggesting the extent Parkinsons symptoms restrict the
claimant in his daily activities. Nevertheless records as noted above demonstrate medications are

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controlling the symptoms at an acceptable level for the claimant to work" (Decision p.7) as an
accountant. The ALJ does not cite any specific record that medication controls symptoms at an
acceptable level for claimant to work as an accountant. The medical evidence by treating
physician Dr. Dexter and Dr. Bower do not establish that medicine control symptoms enough for
Daniel to work. The ALJ improperly depreciated the medical evidence and Daniel's testimony
by concluding his symptoms were controlled by medication. This requires reversal. Steele v.
Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). It is only the ALJ's speculation unsupported by
evidence. An ALJ must not succumb to the temptation to play doctor and make their own
medical findings. Rohan v. Chater, 98 F.3d 966, at 970 (7th Cir. 1996). (At the hearing, the
ALJ stated he forgotten more medicine than most doctors will know. Hearing Tr. p. 28.) At the
hearing, the ALJ said there was no question that Daniel's symptoms would make work difficult.
(Hearing Tr. p. 39). The ALJ must build an accurate and logical bridge from the evidence to the
conclusion. Dixor v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001); Steele v. Barnhart, 290
F.3d 936, 941 (7th Cir. 2002). ALJ failed to do so as there is no supporting evidence.
It is unclear and undescribed how the ALR recognizes the certainty of the objective
medical evidence and credibility of the subjective testimony that the extent of Parkinson's
symptoms restrict Claimant in his daily activities, yet reject that evidence regarding disability to
work productively as an accountant.
That statement that medications provide acceptable control to work ignores that there are
significant gaps in effectiveness of the medication. The medications do not control the
symptoms for a sufficient time to allow for work as an accountant. They only provide for 75%
relief even when fully effective. There is no relief for one to 1 1/4 hours each four hours and
only 75% relief for 2 and 3/4 hours each four hours.

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That would mean that an employer would have to accept claimant at 75% medicated for 2
and 3/4 hours for every 4 hours or 5 1/2 hours for eight hours. Daniel would be unmedicated for
about 2 and 1/2 hours each 8 hours suffering from tremors, rigidity, involuntary movements,
slowness, postural instability and limited hand dexterity. An employer would also have to accept
an employee lacking in ability to successfully operate a computer, computer keyboard and other
equipment. The employer would also have to accept an employee with cognitive problems
unable to concentrate, unable to focus and complete tasks, suffering from unclear fuzzy thinking,
deteriorating memory and inability to communicate clearly and effectively. This employee
would be expected to perform the highly skilled requirements and tasks of an accountant. That is
unrealistic and wrong.
The ALJ makes much of Daniel trying to leave his house to get fresh air, that he prepares
his meals, does his laundry and cleans his house. The ALJ fails to recognize that these are tasks
with short time requirements which he does when his medication is at its most effective.
Nevertheless, Daniel consistently testified these tasks take longer because of his PD even
when his medication is at its most effective. Further he is slow in doing these tasks. (See
remarks in Exhibit 3-E.) He does them in the environment of his home where he has no
deadlines or time constraints, unlike a job as an accountant where time deadlines and strict time
guidelines would apply. The ability to perform some short daily activities while medicated does
not indicate that he can perform as a skilled accountant.
The ALJ stated "the undersigned does not deny the certainty of the objective medical
evidence and credibility of the subjective testimony suggesting the extent of Parkinson's
symptoms restrict the claimant in his daily activities. Nevertheless records as noted above
demonstrate medications are controlling the symptoms at an acceptable level for the claimant to

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work at the residual functional capacity." (Decision, p. 7). But the ALJ does not specify any
records and no records exist which demonstrate medications are controlling symptoms at an
acceptable level for Daniel to work. Not even Foster's unsupported noncurrent RFC.
The records do not demonstrate medications are controlling symptoms at an acceptable
level for claimant to work. To the contrary, the evidence establishes wide lengthy gaps in the
effectiveness of the medication including being unmedicated for 2 1/2 hours of a 8 hour workday
span and only 75% effectiveness for the rest of the 8 hour workday.
The ALJ also misapplied the law and applied a mistaken legal requirement that Daniel
had to show heightened legal standard or test because of his age of 43. The ALJ stated it would
be more difficult for Daniel to establish a claim because he was under age 50. (Hearing Tr. pp.
24-25, 33). The ALJ applied a higher legal standard to Daniel's case because of his age as well
as not fairly crediting the evidence and not applying the law. The undersigned knows of no law,
rule or regulation that requires a PD claimant to be over 50 or 55 in order to establish a disability
claim. While PD normally affects older people, Daniel has early onset PD which while less
frequent is not rare. In any event, there is no higher standard or legal test for PD disability
because this is early onset PD which struck him at an age under 50. To apply a heightened more
difficult test because Daniel is under 50 misapplies the law and is a violation of due process and
equal protection.
The Court should find that disability is established under Medical Listing 11:06 and enter
a finding for disability benefits. All essential factual issues have been resolved and the record
overwhelmingly supports a finding of disability. Windus, 354 F.Supp at 951. Further
proceedings are unnecessary because the ALJ did not provide a legally sufficient basis for
rejecting Daniel's testimony corroborated by medical evidence meeting Medical Listing 11:06

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which alone establishes he is entitled to benefits. Lingenfeiter v. Astrue, 504 F.3d 1028, 1041
and ft.12.
Alternatively the Court should reverse and remand before a different ALJ. The hearing
was seriously flawed, unfair and a different ALJ is necessary. Gulembiewski v. Barnhart, 322
F.3d 912, 918 (7th Cir. 2003); Rohan v Chater, 98 F.3d 966, 971.
It should be noted that according to the ALJ, Daniel must establish disability on or before
12-31-10 in order to be entitled to a period of disability insurance benefits. (Decision, p.1).
Therefor, Daniel must be granted his disability in this case as he may not qualify in the future.
CONCLUSION
WHEREFOR, Claimant Daniel Timothy Mullen respectfully requests that his Disability Claim
be granted, or alternatively, that his claim be returned to another administrative law judge for a
new decision.
Respectfully submitted,
/s/ Michael P. Mullen
Attorney for Daniel Timothy Mullen
S.S.N. 357-54-7080

Michael P. Mullen
MULLEN & FOSTER
333 North Michigan Avenue, Suite 1230
Chicago, IL 60601
312-750-16000

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