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TAYLOR v. APFEL

May 9, 2003

STANLEY TAYLOR, APPELLANT-PLAINTIFF,
v.
KENNETH APFEL, COMMISSIONER OF SOCIAL SECURITY, APPELLEE-DEFENDANT.



The opinion of the court was delivered by: Wayne R. Andersen, United States District Judge

MEMORANDUMS OPINION AND ORDER

This case is before the Court on the cross motions for summary judgment filed by Plaintiff Stanley Taylor and Defendant Kenneth Apfel, Commissioner of Social Security. For the reasons stated below, plaintiffs motion is granted in part and denied in part and defendant's motion is denied.

BACKGROUND

Plaintiff applied for supplemental security income ("SSI") on February 1, 1988, alleging that he became disabled on August 3, 1984, due to "bad feet, back problems and enlarged sinuses." The application was denied initially. However, on July 19, 1991, Administrative Law Judge (ALJ) Richard Sprague found that plaintiff had the following severe impairments: alcohol addiction, depression and organic brain syndrome. He found that plaintiff's alcoholism and depression met the requirements of Section 12.04 of the Listings of Impairments (Listings), 20 C.F.R. Part 404, Subpart P, Appendix 1 (1991) and entitled him to disability benefits. Accordingly, the ALJ found that plaintiff had been under a disability since February 1, 1988 and further found that alcoholism and/or drug addiction was a contributing factor material to the determination of disability. The ALJ recommended that plaintiff undergo treatment and that his compliance with treatment be monitored.

On March 29, 1996, Public Law 104-121 was enacted. Public Law 104-121 precludes an award of Disability Insurance Benefits under Title II or SSI under Title XVI of the Social Security Act, "if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner's determination that the individual is disabled," Pub.L. 104-121 § 105(a), 105(b).

After Public Law 104-121 was passed, the Social Security Administration informed Mr. Taylor that his benefits would cease on January 1, 1997, the effective date of the Act, since alcoholism was found to be a contributing factor material to the finding of disability. Plaintiff then filed an appeal of the decision. A disability hearing officer determined on reconsideration that alcoholism was a contributing factor material to the finding of plaintiffs disability and that his benefits would cease on January 1, 1997. Plaintiff then filed a request for a hearing.

Plaintiff's first administrative hearing concerning the termination of his benefits was scheduled for April 7, 1997. Plaintiff appeared without an attorney and complained that he had a back impairment. ALJ Canton Bailey, Jr. supplied plaintiff with a list of attorneys, rescheduled the hearing for June 5, 1997 and ordered a consultative examination with an internist. On June 5, 1997 plaintiff again appeared without an attorney. When asked if he had tried to get an attorney for this hearing, plaintiff responded that he had not tried, but that he needed one. The ALJ referred plaintiff again to the list of attorneys and suggested that since he was downtown, he could talk to people at Kent College of Law, the Chicago Bar Association, or the Legal Assistance Foundation to find an attorney. Plaintiff stated that he would find an attorney that day.

Plaintiff appeared for his hearing on November 26, 1997 without counsel. He stated that "they told me they wouldn't be here. They couldn't make it today." Plaintiff said the Legal Aid lawyer had told him to ask for a continuance, but Taylor could not produce the name of the lawyer. At this point the ALJ proceeded with the hearing, and plaintiff was not represented by counsel at the hearing.

Plaintiff's testimony revealed that he was 50 years old and had graduated from high school. He last worked doing maintenance and cleaning at a factory in 1985 and had not worked since 1985 except for "odd jobs" such as painting. When asked whether he could read, plaintiff replied "pretty good." However, at a different point in the hearing, the ALJ asked plaintiff whether he had Some difficulty in reading, to which he responded, "yes." Plaintiff further stated that he had no difficulty making change when he went to the store. Plaintiffs daily activities began at about 6:00 or 7:00 in the morning. He cares for his personal needs and does chores around the apartment. Although he claims that he is incapable of cooking, he sometimes shops for groceries with his brother. He walks for exercise, watches television and takes public transportation.

Plaintiff testified that he was "not really" still drinking, although he had a beer with his brother the night before. When questioned about his various physical complaints, he stated that he last had a seizure one week earlier, and that it was characterized by weakness in his legs, falling down and shaking. He complained of "bad feet" due to an episode of frostbite, discomfort in his "backside," spinal pain, breathing problems and enlarged sinuses. He nevertheless admitted that these problems did not prevent him from working. He stated that he took Nitroglycerin to relieve chest pain. Plaintiff claims that he has problems with his memory, concentration, sleep, appetite disturbances, low energy and depression.

Dr. Irving Zitman, an internal medicine specialist, testified as a medical expert at the November 1997 hearing. After extensive testing, Dr. Zitman attributed plaintiffs seizures to alcohol withdrawal. The doctor stated that, at the time, the plaintiff had "extensive and severe alcoholism." When the ALJ asked about plaintiffs claim of enlarged sinuses, the doctor stated that there was no evidence of this condition in the record. He opined that plaintiffs scoliosis was not an impairment unless it was associated with musculoskeletal or pulmonary disturbances, and none were present. Dr. Zitman concluded that plaintiff did not meet or equal any of the Medical Vocational Guideline Listings.

Psychiatrist, Dr. Gerson Kaplan also testified at the November 1997 administrative hearing. He testified that plaintiff had a history of alcoholism "going back many, many years." Noting plaintiffs testimony that he had reduced his drinking and currently drank very little, Dr. Kaplan stated that "other than his alcoholism, I don't see any significant psychological or mental problem." The doctor further stated that he was unaware of any work-related activities the plaintiff was unable to perform.

Grace Gianforte testified as a vocational expert at the November 1997 administrative hearing. When asked about the plaintiffs educational level, Ms. Gianforte stated that psychological testing indicated that plaintiffs reading level might be below sixth grade. The vocational expert stated that there might be illiteracy and that the tests of record did not establish plaintiffs reading level. The ALJ then asked the vocational expert whether plaintiff could work in the economy. Taking into account plaintiffs age, education and work experience, a Residual Functional Capacity ("REC") for light work that was not performed at heights or around moving machinery, marked changes of temperature or humidity, dust, fumes or gas; did not involve climbing; and involved only occasional bending, squatting and crawling, the vocational expert stated that plaintiff could perform the following "simple, repetitive, short type of work: approximately 1,510 jobs as a packer; 10,000 jobs as an assembler; and 800 jobs as a painting and decorating hand in the Chicago metropolitan area."

On January 12, 1998, ALJ Bailey found that, under the legislation enacted in March 1996, disability could not be found if substance abuse was a contributing factor material to disability. The ALJ further found that, because plaintiffs alcoholism had been a contributing factor material to his disability in 1991, his disability on the basis of substance abuse necessarily ceased as of January 1, 1997, the effective date of the legislation. The ALJ found that plaintiffs severe impairments included: severe seizures due to alcoholism; alcohol abuse in early remission and back pain that did not, alone or in combination, meet or equal a condition set forth in the Listing of Impairments (Listings), 20 C.F.R. Part 404, Subpart P, Appendix 1 (1988). The ALJ found that plaintiff had the residual functional capacity (REC) to perform light work and that plaintiff ...


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