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BECTON v. BARNHART

August 3, 2004.

HENRY BECTON, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Henry Becton filed this action against defendant Jo Anne Barnhart, Commissioner of the Social Security Administration, challenging the denial of his application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416, 423, 1381a. Defendant has moved for summary judgment. For the reasons set forth below, defendant's motion for summary judgment is granted and the decision denying DIB and SSI benefits is affirmed.

PROCEDURAL HISTORY

  Plaintiff applied for DIB on March 27, 1997, and SSI on February 5, 1997, alleging that he had been disabled since March 15, 1996, due to diabetes and depression. After being denied initially, a hearing was held before Administrative Law Judge ("ALJ") Edward Gustafson, who issued an opinion on June 18, 1998, denying plaintiff's application. Plaintiff's requested review by the Appeals Council was granted, and on April 27, 1999, the Appeals Council vacated ALJ Gustafson's order and remanded the case for further findings. Before the Appeals Council, plaintiff alleged that ALJ Gustafson belittled and dismissed the devastating and crippling effects of severe depression. Because the tape of the administrative hearing was inaudible, the Appeals Council was unable to determine the veracity of plaintiff's allegations against ALJ Gustafson. Therefore, the Appeals Council instructed plaintiff on remand to notify ALJ Gustafson if plaintiff still objected to ALJ Gustafson hearing the case. The ALJ was instructed to consider plaintiff's objections, and decide whether to proceed with the hearing or withdraw from the case.

  On remand, plaintiff sent a letter, received in the hearing office, requesting that ALJ Gustafson withdraw and that another ALJ be appointed. The file does not indicate whether ALJ Gustafson saw the letter and denied plaintiff's objections, or never saw the letter at all. In any event, ALJ Gustafson held another hearing and issued another opinion denying plaintiff's request for benefits.

  Again plaintiff sought review by the Appeals Council, and again that council granted review, vacated the decision and remanded the case for further proceedings. Specifically, the Appeals Council noted that its review of the second decision indicated that ALJ Gustafson did not fully comply with the initial remand order and that there was no indication in the record that plaintiff, who proceeded unrepresented, received any help getting updated medical reports, leaving the record incomplete. Nor did ALJ Gustafson's decision express plaintiff's residual functional capacity ("RFC") in specific terms, with appropriate references to the record. After detailing other deficiencies in ALJ Gustafson's second decision, the Appeals Council specifically found merit in plaintiff's allegations that the ALJ "belittled and dismissed how devastating and crippling severe depression can be," and showed a personal disregard and contempt for the facts and issues in the case. Therefore, the Appeals Council directed that the case be assigned to another ALJ. On remand, the case was assigned to ALJ Helen Cropper. At the hearing, which was scheduled on short notice at plaintiff's request, ALJ Cropper explained in detail to plaintiff that he had a right to 20 days notice before the date of the hearing and that plaintiff had a right to be represented by an attorney, a paralegal or someone trained in disability law. Plaintiff stated that he understood those rights, but chose to go forward at that time.

  FACTS

  Plaintiff was 48 years old at the time of the hearing. He graduated from high school, and has three years of college credit. His only past relevant work experience was as a patient sitter at the University of Illinois from 1990 to 1993.

  In 1996, plaintiff enrolled in a screening test for diabetes mellitus at University of Illinois Chicago, where he was found to have elevated blood sugar. He was referred to Community Health Free Clinic ("Community"), where he received routine medical care starting in September 1996. He was prescribed medication for diabetes. On his next visit in December 1996 he reported feeling better. His medication was increased and he was referred to a diet class and advised to have an eye exam.

  He returned to Community on January 9, 1997, complaining of blurred vision, but denied any other symptoms. His medication was maintained, and he was counseled about diet and exercise. He was referred for an ophthalmologic exam. He received a diet counseling session on January 13, 1997, and returned to on Community January 27, where he reported improvement, but was advised to check his blood sugar levels more frequently. He received an eye exam on February 20, 1997, which indicated that his eyes were "okay," and that he required only routine follow up. Plaintiff next returned to Community on March 7, 1997, reporting to the doctors that he had applied for disability for "dizziness, DM," and seeking a physical exam. His blood pressure was elevated and he was prescribed Lotensin for the hypertension. His diabetes prescription was maintained. He returned one month later for refills, reporting that he felt depressed and that the Lotensin caused constipation. He was given samples of Vasotec, to replace the Lotensin and Zoloft for the depression.

  Plaintiff's next visit to Community was in June, 1997 for refills, where he complained of fatigue, difficulty sleeping, and decreased libido. His doctor prescribed Paxil instead of Zoloft in an attempt to alleviate plaintiff's symptoms. He returned on July 10, 1997, for refills, and reported itching and occasional pain in his left ear. He continued to have sleeping problems, but reported improvement in his libido with the discontinuation of Zoloft. He told the doctors that he checked his blood sugar only when he did not feel well, and adjusted his own diabetes medication depending upon the results of the blood sugar test.

  Plaintiff returned to Community in August 1997 for refills, where he was given samples of Vasotec and Paxil, and the doctor indicated that he would write a prescription for Fosinopril, and other anti-hypertension medicine. On September 13, plaintiff complained of shortness of breath on exertion, and admitted that he was not checking his blood sugar levels. Plaintiff's lab work indicated high cholesterol, but he had a normal EKG. The doctor continued plaintiff on Lotensin, reinforced the importance of diet control, and advised plaintiff to have further lab work.

  Plaintiff returned to the clinic on November 6, 1997, seeking refills and complaining of weakness, dizziness and increased perspiration. He again complained of side-effects from the Lotensin, and the doctor prescribed Norvasc, adding a prescription for cholesterol control, continued the diabetes medicine (Glitizide), and gave plaintiff more samples of Paxil. On November 20, plaintiff returned seeking refills. The doctor noted at that time that plaintiff "does not feel depressed." Plaintiff did have slight objective muscle weakness, which the doctor attributed to the cholesterol medication, which he discontinued. Plaintiff was prescribed two medications for diabetes, Glucophage and Glipizide, and advised to continue taking Paxil. Plaintiff also had a nutritionist visit on December 8, 1997.

  Plaintiff returned to Community on December 11, 1997, again requesting refills. At that time the doctor noted that plaintiff "is not compliant" with his diabetes prescriptions, and that he was not taking Glucophage regularly. The doctor prescribed Cardiazam for hypertension, Prabachol for cholesterol, continued plaintiff's diabetes medications, and advised him again to ...


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