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FRANKLIN v. SHALALA

February 2, 1995

EMANUEL FRANKLIN, Plaintiff,
v.
DONNA SHALALA, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: MILTON I. SHADUR

 Emanuel Franklin ("Franklin") appeals the final decision of Department of Health and Human Services Secretary Donna Shalala ("Secretary") denying Franklin's claims for disability insurance benefits and social security income under the Social Security Act ("Act"), 42 U.S.C. §§ 416(i), 423, 1382 and 1382c. *fn1" As usual in such cases, Franklin and Secretary have filed cross-motions for summary judgment under Fed. R. Civ. P. ("Rule") 56, with Franklin alternatively moving for a remand. For the reasons stated in this memorandum opinion and order, Franklin's motions are denied and Secretary's motion is granted.

 Franklin, a 42-year old man, suffers a number of physical and mental impairments arising in large part from his destructive relationship with the bottle. *fn3" For current purposes it is unnecessary to chronicle the events contributing to Franklin's physical decline. Suffice it to say that Franklin's body has weathered a storm of abuse and yet retains enough of its natural strength and resiliency so that from a physical perspective alone Franklin is capable of substantial gainful activity so as not to be disabled in that respect under the Act. *fn4"

 What is at issue instead is Franklin's mind. Franklin claims that in determining that he was not disabled the ALJ failed to properly account for Franklin's mental impairment. Franklin has personality and abuse disorders resulting in depression and other features that affect his ability to relate to others in a work setting. To assess the functional limitations flowing from those disorders, the ALJ filled out the standard form called for by Reg. § 404.1520a (R.18-20). Dr. John L. Peggau, a licensed psychologist who examined Franklin at his lawyer's request, filled out a slightly different version of the same form (Ex. 20 at R. 151-71 is Dr. Peggau's written report, including that form). What follows reflects ALJ Welsch's and Dr. Peggau's different views (respectively indicated by "W" and "P") as to the extent to which Franklin's mental impairment affects his abilities in four key areas related to work: 1. Restriction of Activities of Daily Living: None Slight Moderate Marked Extreme [ ] [W] [P] [ ] [ ] 2. Difficulties in Maintaining Social Functioning: None Slight Moderate Marked Extreme [ ] [ ] [W/P] [ ] [ ] 3. Deficiencies of Concentration, Persistence or Pace: Never Seldom Often Frequently Constantly [ ] [ ] [W/P] [ ] [ ] 4. Episodes of Deterioration or Decompensation: Never Once/Twice Repeated Continual [ ] [W] [P] [ ]

 ALJ Welsch's opinion said "this form has been prepared in a fashion consistent with the assessment of Dr. John L. Peggau, as well as the record as a whole" (R.14) and then explained each of her own marks (R.15):

 
The undersigned notes that the claimant does live independently. He provides for his daily needs, including maintaining his own household, grocery shopping, doing his laundry, and washing dishes. He also is active hustling and attempting to get money for drug and alcohol abuse. As a result, the undersigned finds there is nothing in the record to show that claimant has more than slight difficulties with daily activities.
 
The claimant said he has been arrested at least ten times and gets into fights when he has been drinking. He describes himself as a loner. He does, however, maintain relationships with a fiance. He also has a friend that he drinks with. He has contact with his mother and sister. Although the claimant may have difficulties in social functioning, the undersigned cannot find that he has more than moderate impairment.
 
The claimant alleges difficulty with concentration, persistence and pace. Testing by Dr. Peggau indicated that the claimant may, indeed, have such difficulties. The claimant does, however, live independently. He is able to engage in hustling and in acquiring odd jobs. The undersigned finds that the claimant at most would often have deficiencies of concentration, persistence and pace.
 
The claimant told the doctor that he had been fired from a job; however, he did not indicate that this problem was due to his drinking or drug use. He said he was fired because he was tardy and he blamed his tardiness on his daughter. He said, however, that he has been in fights because of his drinking. He admitted that he had been arrested ten times. The undersigned can find at most that the claimant has had one or two episodes of deterioration or decompensation in the workplace.

 After finding that Franklin failed to qualify for any listed impairment, the ALJ proceeded with the familiar five-step process used to evaluate disability claims (Reg. § 404.1520; Young v. Secretary of HHS, 957 F.2d 386, 389 (7th Cir.1992)). At steps 4 and 5 she performed a residual functional capacity ("RFC") analysis to determine whether Franklin's combined physical and mental impairments rendered him incapable of returning to his past relevant work as a forklift and brake press operator *fn5" or of finding other work in the economy. To assist in that determination the ALJ asked Vocational Expert ("VE") William Fischer (R.57):

 
Q: All right, Dr. Fischer, I'm going to ask you a hypothetical question, and I ask that you please disregard any information you may have gathered from reading the file or listening to the testimony, other than that which I give you specifically in the hypothetical. I would like you to assume an individual who is 42 years old with an 11th grade education, who has past relevant work the same as Mr. Franklin, who has an exertional capacity limited to the full range of medium work with the following exceptions. Individual who has an IQ as stated in the file, let's see, it was full scale IQ of 81, performance 85 and verbal of 78. And an individual who would also be limited in that they would have, an individual who could not have constant interaction with others. Can frequently interact with others, but work would be fairly independent. Tasks would be assigned and the individual could do that without constantly interacting with others. And by others I mean coworkers, supervisors and the general public. How would these restrictions effect [sic] the performance of past relevant work?

 In response the VE said that such an individual could operate both a forklift and a brake press (R.57-58). Next the ALJ asked what light or sedentary unskilled entry level work such a person could perform in the economy generally (R.58), and the VE estimated that there were approximately 33,000 jobs in the immediate area (10,000 cleaning, 8,000 laundry, 15,000 assembly) suitable for a person with physical and mental restrictions as described (R.58-60).

 Franklin's lawyer then sought to pose a different hypothetical question. After several permutations, the question was recast most clearly by the ALJ ...


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