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ROHAN v. BARNHART

February 24, 2004.

DONALD ROHAN, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant



The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge

MEMORANDUM OPINION AND ORDER

After eleven years, it is time to bring this litigation to an end. This case comes before this Court on three motions. The first is a motion for summary judgment filed by Plaintiff Donald Rohan ("Plaintiff), seeking reversal of the Administrative Law Judge's ("AL.T") finding of not disabled for the period from Tune 30, 1989 to March 29, 1992. The second is a motion for remand filed by Defendant Jo Anne B. Barnhart, Commissioner of Social Security ("Commissioner"), seeking to give the A1J another opportunity to comply with the Seventh Circuit's and this Court's prior remand orders. The third is a request for fees, filed by Plaintiff, under the Equal Access to Justice Act ("EAJA"), 28 U.S.C, § 2412.

There are two primary issues. First, whether the onset date of Plaintiff's disability is March 30, 1992. Second, whether remand to the Commissioner for further proceedings is proper, considering the inordinate number of years Plaintiff's application for disability insurance benefits ("DIB") has been pending and the actions of the Social Security Page 2

  Administration ("SSA") during that time. For the following reasons, the Court enters judgment for Plaintiff, denies the Commissioner's motion for remand, and awards Plaintiff $5,802.50 in fees under the EAJA,
I. BACKGROUND
A. PROCEDURAL HISTORY

  1. The First Proceeding

  Plaintiff, who alleges low back pain secondary to a herniated disc and Major Depressive Disorder, filed an application for DIB on August 10, 1992, claiming a disability from June 30, 1989. R, 54-56. The application was denied initially and upon reconsideration. R. 67-76. Plaintiff filed a timely request for an administrative hearing, which ALJ James A. Horn held on February 2, 1994. R. 77-79, 268-3 15. On June 23, 1994, ALJ Horn issued an unfavorable decision, denying Plaintiff any benefits and finding no period of disability. R. 12-24, Plaintiff's request for review to the Appeals Council was denied on October 27, 1994, because, inter alia, the contentions raised by Plaintiff to the Appeals Council were repetitive of those previously submitted to the ALJ and addressed in the decision. R, 5-6,

  Plaintiff then filed a complaint in the district court requesting judicial review of the Commissioner's decision, and the parties filed cross-motions for summary judgment, which resulted in a decision against Plaintiff on January 16, 1996. Rohan v. Chater, No. 95 C0001, 1996 WL 19583 (N.D. Ill. Jan. 16, 1996). After the court denied Plaintiff's motion to alter Page 3 or amend (he judgment. Plaintiff appealed the decision to the Seventh Circuit Court of Appeals, which remanded the case for further proceedings consistent with its order, Rohan v. Chater, 98 F.3d 966 (7th Cir. 1996).

  The Seventh Circuit criticized the ALJ for committing a number of errors, id. at 970-71. For instance, the ALJ improperly disregarded the most current objective evidence of Plaintiff's limitations submitted by psychiatrist Dr. Michael S. Shapiro, Id. at 970. The ALJ also improperly substituted his judgment for that of Dr. Shapiro by indulging his own lay view of depression. Id. The court found that the ALJ impermissibly relied upon Plaintiff's efforts at engaging in a small machine repair/resale business as being inconsistent with a diagnosis of major depression and limited functional abilities. Id. Because of these errors, the court recommended that the case be assigned to a different ALJ on remand. Id. at 971.

  2. The Second Proceeding

  Pursuant to the Seventh Circuit's order, the Appeals Council remanded the case to ALJ John L, Mondi to give further consideration to treating sources. R. 445-48. ALJ Mondi held a new hearing on March 18, 1999. R. 359-444. At that hearing, the Medical Expert, Dr. Richard Zaloudek, testified that Plaintiff did have a severe mental impairment, but could not comment about whether the onset date was anytime between June 1989 and March 1992 because he had no notes pertaining to that period. R. 419, 421. Additionally, the Vocational Expert, Lee Knutson, testified that the combination of mental and physical impairments suffered by Plaintiff would prevent him from being employable. R. 430, 432. Based on this Page 4 record, the AIJ issued a partially favorable decision on June 28, 1999, awarding Plaintiff DIB from March 30, 1992 to October 31, 1997. R. 339-55. The ALJ set the onset date of Plaintiff's disability to reflect the date Plaintiff was first diagnosed by his psychiatrist. R. 352. Plaintiff appealed the unfavorable portion of the decision, contending that Plaintiff's onset date was June 30, 1989. R.337-38. He also submitted a memorandum of exceptions and requested the Appeals Council to lake jurisdiction over the case. R. 316-25.

  In the memorandum of exceptions, which was filed without the benefit of the hearing tapes that had been requested almost a year before, Plaintiff made the Appeals Council aware of several errors committed by the ALJ. R. 317, 320-25. Among the errors was that the ALJ arbitrarily chose the onset date as the date Plaintiff first saw his psychiatrist, that the AIJ ignored medical evidence explicitly contrary to his decision, and that the ALJ dissected reports to obtain minor snippets of evidence contrary to Plaintiff's position while ignoring the remainder of the evidence that supported Plaintiff's position. R. 321, 323. Nonetheless, the Appeals Council did not take jurisdiction over the case, and Plaintiff filed a Complaint with this Court on February 9, 2001.

  On January 7, 2002, pursuant to an agreed motion, this Court reversed the Commissioner's final decision and remanded the case for further administrative proceedings. This Court ordered the ALJ to conduct a de novo review and issue a new decision considering Plaintiff's impairments as a whole with respect to the period from Plaintiff's alleged onset date, June 30, 1989, through March 29, 1992. The ALJ also was directed to Page 5 consult a mental health professional to assist in determining Plaintiff's disability onset date and to consider all new and old evidence of record, specifically the opinion of Dr. Shapiro and the testimony of Plaintiff's wife, to determine whether Plaintiff's mental impairment might have become disabling prior to March 29, 1992.

  3. The Third Proceeding

  The Appeals Council remanded the case to ALJ Mondi for de novo review of the period from June 30, 1989 through March 29, 1992, R. 555-57, The ALJ held a hearing on October 2, 2002. R. 582-655, On February 27, 2003, the ALJ issued an unfavorable decision, finding that Plaintiff was not disabled prior to March 29, 1992, R, 544-54. The ALJ's decision became the final decision of the Commissioner, and Plaintiff filed a Complaint with this Court on May 6, 2003, requesting reversal of the Commissioner's decision, or alternatively remand, as well as an award of attorney's fees under the RAJA.

  On October 20, 2003, Plaintiff filled a motion for summary judgment. In response, the Commissioner filed a motion for remand. The Commissioner proposes that, on remand, the ALJ will reconsider Plaintiff's onset date of disability. In doing so, the ALJ will address the opinion of Dr. Shapiro and the testimony of Plaintiff's wife, and consult a medical expert, if necessary. Plaintiff objects, arguing that after eleven years the record is complete and nothing new can he achieved on remand because only one result, the award of benefits, is possible. Page 6

 B. HEARING TESTIMONY

  1. Plaintiff's Testimony

  Plaintiff was fifty-five years old at the time of the ALJ's decision, had completed high school, had served in the Army, and is married with three children. R, 54, 87, 97, 282-83, 370, He injured his back on June 17, 1989, while shoveling sand as part of his duties doing carpentry work. R. 101-06, 134, He immediately experienced pain in his back and right leg, but continued to work. R.134, 290, By June 30, 1989, the pain was so extreme that Plaintiff could not work. R. 128. He did not return to work again until 1996. R. 376,

  Plaintiff went to the emergency room on July 4, 1989, complaining of pain in his right leg and lower back. R. 128. Early degenerative changes in the lower lumbar spine were noted. R. 129. He was restricted to bed rest and stopped working. R. 83, 128, 272. At that time, Plaintiff did not go to a Veterans Administration hospital for treatment of his injuries because he had been told that the hospital would only treat war-related injuries. R. 280, 386. Additionally, at one point Plaintiff did not see a doctor for treatment of his back for a few years because he could not afford treatment until he began receiving public aid in 1993. R. 278, During that time, he continued to rest and to lake over-the-counter medicine, R. 277, 291. However, he could not do simple chores, such as washing the dishes, and he spent about four or five hours a day in a recliner, R. 287. He ceased repairing and building cars, as well as doing woodworking, and could not concentrate for more than fifteen to thirty minutes. R. 288-89, Since 1989, his back pain has been constant. R, 615, There was no Page 7 time when his back pain first started that the pain subsided, and the pain was so bad that his wife had to help him out of the bathtub because he could not lift his legs over the side of the tub. R. 114-17, 611, 613. In July 1989, he realized that he would never go back to his old lifestyle as a carpenter. R. 642, As a result, he gained about ninety pounds since his injury, currently weighing in at about 365 pounds. R. 640.

  By September 11, 1990, Plaintiff complained of extreme back pain that, prevented him from bending, lifting, sitting, and standing or walking for more than thirty to forty-five minutes at a time, R, 83, 86, 88. On February 5, 1991, Plaintiff reported that he experienced back pain twenty-four hours a day and that he could sit only for very short periods of time. R. 108, 110-11. The pain and depression made it difficult for Plaintiff to remember, to concentrate, and to sleep. R. 115-16, He became irritated when someone told him what to do or criticized him. R. 116 — His mood changed for the worse after the injury. R. 391, 614.

  In March 1992, Plaintiff went to sec a psychiatrist at his wife's urging. R. 298. Because he had become suicidal and so emotionally unstable., his wife told him that he needed to gel help or she would divorce him. Id. When he saw the psychiatrist for the first time, he had thoughts of guilt, worthlessness, and death. R, 644-45. The psychiatrist prescribed Prozac, which seemed to help Plaintiff stabilize his emotions. R. 295. Plaintiff claims that, as of 1989, his pain was severe enough to require psychiatric treatment, R. 644.

  At about the same time, in an attempt to keep himself occupied, Plaintiff began repairing small motors, R. 238, 375, 603-04. He either received or purchased lawn mowers Page 8 and a tractor to repair in May 1992, R. 603-04. Plaintiff asserts that he was not running a business and that he did. not do repairs on a daily basis because of his leg and back problems. R. 602, 607. He would sit or lay down to do the repairs, and often he would have to take breaks, R. 392-93, 605-07, Most of the machinery was scrapped because it would take him six hours with breaks to do one repair that an average mechanic could do in a third of the time. R. 606. He became frustrated that simple tasks took hours and that he could not pick items up off the floor. R, 607, 641,
2. Susan Roban — Plaintiff's Wile
  Susan Rohan ("Mrs. Rohan"), Plaintiff's wife, testified that Plaintiff's back condition gradually grew worse since his injury in 1989. R, 305. After his injury, Plaintiff often was irritable, depressed, and moody, had difficulty concentrating, sleeping, and relating to others, and could not lift or carry much weight, R. 305-09, 390-91, These problems began about three months after Plaintiff stopped working in June 1989. R. 622,

  Within three or four months of Plaintiff's injury, Plaintiff became depressed and irritable. R. 622. Plaintiff became paranoid and began talking about his experiences in Vietnam, which he had not mentioned in years. R. 309. Plaintiff did not undergo psychiatric treatment until after Mrs. Rohan gave him an ultimatum that if he did not see a psychiatrist she would move out. R, 622-23, She made the ultimatum because Plaintiff's condition had been building gradually for a longtime until the situation was desperate. Id. Friends stopped visiting because of Plaintiff's attitude. R. 623. Page 9

  Mrs. Rohan also testified that Plaintiff was physically exhausted by a work hardening program he underwent in 1990 and that the program made his pain worse. R, 624-27, After the sessions, Plaintiff would sleep for the rest of the day and could do no more than ten to thirty minutes of physical activity with many breaks. Id. He became more frustrated because he could not do simple tasks, R. 625. After the work hardening program ended, Plaintiff did not continue to receive treatment for his back because his doctor told him that nothing could be done for it, R, 308,

  Finally, Mrs. Rohan testified that Plaintiff could not accomplish anything, especially when he attempted to fix lawn mowers, R, 626, Plaintiff constantly would start and stop his attempts at repairs, becoming frustrated when things would not go his way and going to bed after about half-an-hour of work. Id.

  3. Irwin Feinberg, M.D. — Medical Expert

  Dr. Irwin Feinberg, an orthopaedic specialist, testified at the hearing as Plaintiff's medical expert. R. 628-46. He gave an opinion as to Plaintiff's residual functional capacity from 1989 to 1992, R. 63 5. Plaintiff occasionally could lift ten to fifteen pounds, frequently could lift less than ten pounds, experienced more pain the longer he stood on his feet or lifted with his back, could stand or walk less than two hours and sit less than six hours in an eight-hour workday, could pull or push with his legs, was limited on his postural positions, and could not climb. R. 635-36. He opined that Plaintiff had met Listing 1.04(c) since November 20, 1990, or earlier, R. 628-31, Dr. Feinberg also slated that Plaintiff's Page 10 complaints of pain during the 1990 work hardening program were consistent with his impairments, which were evidenced by doctors' reports and an MRI. R. 630-33, 635-37. Specifically, Plaintiff's lumbrosacral x-rays taken July 4, 1989, showed the first stages of disc degeneration that could cause pain. R, 632. Finally, because Plaintiff's obesity made surgery dangerous, Dr. Feinberg rejected the notion that Plaintiff's refusal to have back surgery in 1989 was unreasonable and an indication of a lack of severe pain. R. 634-35.

  4. Demetri Dres, Psy.D — Medical Expert

  Dr. Demetri Dres, a. psychologist, testified as a medical expert, R. 574-76, 646-51, He did not examine Plaintiff but rather consulted the medical evidence and Plaintiff's initial psychological evaluation conducted in March 1992 by Plaintiffs psychiatrist. R. 646. Dr. Dres could not determine when Plaintiff's depression began, but he did determine that Plaintiff's psychological symptoms were progressive and that the criteria for Listing 12.04 was met in March 1992. K. 638, 647. His basis for that onset date was that it was the date Plaintiff first visited his psychiatrist. R. 647. Whether, prior to March 1992, the Listing was met or Plaintiffs disabling mental impairments were onset is indeterminable with the record. R, 647-48. However, based upon the medical evidence and the testimony, Dr. Dres opined that Plaintiff's mental impairment likely began on October 25, 1989, while being treated by Dr. Scott Mox. R. 648-50. Page 11

 C. MEDICAL EVIDENCE

  1. Treating Physicians

  Plaintiff first sought treatment for his back injury on July 10, 1989, when he visited Scott Mox, M.D., who assessed a lumbosacral strain and severe sciatica. R. 144, 214. An MRI showed a large herniated disc, disc protrusions, and disc degeneration, R, 145. Although surgery was an option, Dr. Mox conservatively treated Plaintiff's condition and physically examined him each month from July to December, R. 141-43, 256. Dr. Mox prescribed bed rest, narcotic pain medication, and physical therapy, which Plaintiff attended from ...


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