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THULEN v. BARNHART

August 6, 2004.

PAUL W. THULEN, Plaintiff,
v.
JOANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant.



The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Paul W. Thulen ("Plaintiff") seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner"). See 42 U.S.C. §§ 405(g), 1383(c)(3). The Commissioner's final decision denied Plaintiff's application for Disability Insurance Benefits ("DIB") pursuant to Title XVI of the Social Security Act (the "Act"). 42 U.S.C. § 1381(a). This matter is before the Magistrate Judge pursuant to consents filed by Plaintiff and Commissioner on December 3, 2003. See 28 U.S.C. § 636(c); Fed.R. Civ. P. 73.

I. BACKGROUND

  Plaintiff filed for DIB on September 5, 1997, alleging disability on April 12, 1997. (Tr. 135). Plaintiffs application for benefits was denied on January 12, 1998. (Tr. 86). Plaintiff filed a request for reconsideration on January 29, 1998. (Tr. 90). Plaintiff's request for reconsideration was denied on March 13, 1998. (Tr. 91). Plaintiff then filed a request for a hearing before an Administrative Law Judge ("ALJ") on May 13, 1998. (Tr. 94). Plaintiff appeared, with counsel, before an ALJ on March 15, 2001. (Tr. 38). In a decision dated April 25, 2001, the ALJ found that Plaintiff was not entitled to DIB. (Tr. 26-33). On May 9, 2001, Plaintiff requested a review of the ALJ's decision by the Appeals Council. (Tr. 13). On June 17, 2001, the Appeals Council denied Plaintiff's request for review. (Tr. 9).

  II. FACTS

  Plaintiff was born on December 3, 1961, and was thirty-nine years old at the time of his March 15, 2001, hearing before the ALJ. (Tr. 135). Plaintiff graduated from high school. (Tr. 43). At the time of the hearing, Plaintiff testified that he lived in a house with his mother and three older siblings. (Tr. 42). Plaintiff had a heart attack some time around April 12, 1997, and suffers from coronary artery disease, high blood pressure, shortness of breath, diabetes, and obesity. For these reasons, and some others, Plaintiff claims to be disabled.

  At the time of his hearing, Plaintiff's most recent — and only — employment was with the Village of Savanna, Illinois. (Tr. 58). Plaintiff testified that he worked 18 years for the Village of Savanna as a "jack-of-all-trades" who would pick up garbage, fix water leaks and sewers, and maintain walkways and roadways.*fn1 (Tr. 58-59). This job was full-time. (Tr. 43). While employed by the Village of Savanna, Plaintiff testified that the most he had to lift was "a couple of hundred pounds" and that he would frequently lift between 50 and 100 pounds. (Tr. 59).

  Plaintiff ended his full-time employment with the Village of Savanna after his heart attack in April of 1997. (Tr. 43). Plaintiff testified that he could not continue with his line of work because of feeling tired, fatigued, and not having "the wind for it." (Id.) Plaintiff likewise did not pursue lighter jobs because of feeling "tired all the time" in addition to experiencing a painful back and not knowing how he will feel from day to day. (Tr. 44).

  On a typical day, Plaintiff testified that he sleeps and watches TV at two hour intervals. (Tr. 54). Plaintiff stated that he may make breakfast for himself "once in a while." (Id.) Plaintiff testified that he does not clean, dust, vacuum, do dishes or wash laundry for himself — his 81-year-old mother does the laundry, and someone else does the cleaning.*fn2 (Tr. 55). Plaintiff testified that he is able to make his own bed, change his sheets, and bathe and dress himself. (Id.). Despite his frequent, daily naps, Plaintiff told the ALJ that he always feels tired. (Tr. 61). Plaintiff does not make trips to the grocery store; he has someone else deliver his groceries. (Tr. 55). Plaintiff does not do any yard work including mowing the lawn, raking leaves, or shoveling snow — his younger brother takes care of these tasks. (Tr. 55-56). Plaintiff testified that he does, however, take small walks of up to 100 yards roughly every other day. (Tr. 56). Plaintiff also testified that he is able to change light bulbs or change batteries in a smoke detector when needed. (Tr. 58).

  Plaintiff does not have any hobbies, does not go out to eat or to see movies, does not attend religious services, has not been out of town for vacation or other reasons (for three years prior to his hearing), and does not participate in social, church, or volunteer activities. (Tr. 56-57). Plaintiff still has a valid driver's license without any restrictions, and testified that he drives two to three times per week through town or to see the Mississippi River, which is just a two to three minute drive from Plaintiff's home. (Tr. 43). With regard to family interactions, Plaintiff testified that he talks to his mother but interacts with his older siblings as minimally as possible because they are mentally handicapped and he prefers to "avoid it." (Tr. 57-58).

  At the hearing, Plaintiffs mother testified on his behalf. (Tr. 71). She stated that Plaintiff has "a lot of problems" including his breathing and his high level of stress due to living with his older siblings. (Tr. 72). She testified that Plaintiff sometimes gets up during the day and makes himself some eggs before "just [sitting] in his chair" because "that's about all he's able to do." (Tr. 73). She added, however, that Plaintiff is able to drive himself to the doctor because "the doctor is just uptown." (Id.).

  Vocational Expert, James Radke, also appeared before the ALJ during Plaintiff's hearing on March 15, 2001. (Tr. 73). The vocational expert testified that Plaintiff's position with the Village of Savanna would be classified as "heavy in terms of exertion and semi-skilled in terms of his [skill] level." (Tr. 74).

  The ALJ then presented the vocational expert with the following hypothetical situation:
If I would assume, on the basis of the record, an individual who is 39-years-old has the work experience and education of this claimant and has the following exertional limitations: can sit for six hours, stand and walk for six hours, can lift and carry frequently up to 25 pounds, occasionally up to 50 pounds, and only can occasionally stoop, crawl, and climb stairs and ramps, can never climb any ladders, robes or scaffolds. Can only occasionally crouch, kneel or balance. Further assuming someone who must avoid concentrated exposure to activities involving unprotected heights, being around moving and hazardous machinery, and dust odors, fumes and gases. [I should] assume such a person could not perform the claimant's past work, is that correct?
(Tr. 74-75). The vocational expert stated that such a hypothetical person could perform Plaintiff's past work as a truck driver,*fn3 and could also perform work as a janitor, cleaner, food preparation worker, and medium level packager or filler. (Tr. 75). The ALJ then added that the hypothetical person should "avoid concentrated exposure to temperature extremes. (Tr. 75). This modification did not change the vocational expert's answer about what work the hypothetical person could perform. (Id.). The ALJ further modified the hypothetical by changing the exertional requirement to "light work, someone who can lift and carry frequently just up to 10 pounds and occasionally up to 20 pounds." (Tr. 75-76). With these modifications, the vocational expert opined that Plaintiff's past work as a truck driver would be eliminated, but such a hypothetical person could still perform packaging and filling positions, work in miscellaneous food prep positions, or work as a cashier or assembler. (Tr. 76). The ALJ proceeded to modify the hypothetical further by adding the requirement that the hypothetical person be allowed to sit and stand approximately every 45 minutes. (Id.). With this change, the vocational expert stated that a hypothetical person with these limitations could still work in some packaging, filling, miscellaneous food preparation, and cashier positions. (Id.). The vocational expert also determined that the individual would be able to work in sedentary assembly and sorting occupations. (Id.). According to the vocational expert, at the time of the hearing, there were less than 1,000 packaging and filling positions, about 7,000 miscellaneous food preparation positions, and 24,300 cashier positions in the Northern Illinois area that such a hypothetical person could perform. (Tr. 76).

  III. MEDICAL HISTORY

  On April 13, 1997, Plaintiff was taken to the Emergency Department of the Samaritan Health System in Clinton, Iowa, via ambulance. (Tr. 228). Plaintiff had been coughing up blood for a couple of days before seeking treatment, and started experiencing severe left back and rib pain which worsened with breathing and coughing. (Id.) The History and Physical Report, by J. Gondwe, M.D., noted that Plaintiff "[smoked] quite a bit and apparently [had] been drinking quite a bit lately." (Tr. 230). Dr. Gondwe's physical exam indicated Plaintiff had a "density in the left breast, maybe pneumonia." (Id.). Dr. Gondwe's impression of Plaintiff at that time indicated that Plaintiff suffered from pleurisy,*fn4 had an abnormal electrocardiogram*fn5 suggesting a myocardial infarction, was obese, and had problems with nicotine addiction and alcoholism. (Id.). Plaintiff was treated with penicillin and heparin, and laboratory tests were ordered. (Id.).

  Plaintiff was admitted to the Samaritan Health System, and underwent further testing and consultation examinations. (Tr. 226-268). At the time of a consultative examination by Q. Rasheed, M.D., F.A.C.C., also on April 13, 1997, Plaintiff was alert and oriented, and appeared in mild respiratory distress. (Tr. 232). Dr. Rasheed determined that Plaintiff experienced an acute pulmonary embolism,*fn6 had an abnormal electrocardiogram with evidence of inferior*fn7 and anterolateral*fn8 myocardial infarction, used tobacco, and used alcohol with probable dependence. (Id.). With regard to Plaintiff's tobacco use, Dr. Rasheed noted that Plaintiff smoked two packs of cigarettes per day for fifteen years. (Id.). Dr. Rasheed agreed with Dr. Gondwe's decision to heparinize*fn9 Plaintiff, and ordered further tests to assess Plaintiff's cardiac functioning. (Id.). Dr. Rasheed noted that Plaintiff was "critical at [that] time and without treatment the potential for morbidity and mortality [was] high." (Id.).

  On April 14, 1997, during Plaintiff's hospitalization, he underwent a consultative examination by Nidal Harb, M.D., who was asked to assume Plaintiff's cardiac care. (Tr. 234). At the beginning of the consultation notes, Dr. Harb stated that "the patient is a poor historian and has been somewhat noncompliant with doctor's visits." (Id.). Dr. Harb indicated that Plaintiff's cardiac risk factors included obesity, hypertension,*fn10 his gender, hypercholesterolemia,*fn11 family history for coronary artery disease, and smoking. (Id.). Dr. Harb also indicated that Plaintiff denied affliction with diabetes mellitus. (Id.). Dr. Harb's impression of Plaintiff was similar to the impressions of Drs. Gondwe and Rasheed; Dr. Harb noted that Plaintiff had a pulmonary embolus, suffered from coronary artery disease, was morbidly obese, had hyperlipedemia,*fn12 and was addicted to nicotine. (Id.). Dr. Harb recommended that Plaintiff continue with heparin treatment until switching later to warfarin therapy, and that Plaintiff use topical nitrates if his condition permitted. (Id.). Dr. Harb also discussed with Plaintiff the need to modify Plaintiff's cardiac risk factors, the nature of coronary artery disease, and the possible modalities of treatment. (Id.). Plaintiff remained hospitalized through April 21, 1997, when he was discharged to home. (Tr. 226). Dr. Gondwe's discharge summary of Plaintiff's hospitalization reported a final diagnosis of (1) pulmonary embolism, (2) deep venous thrombosis involving the left lower extremity, (3) pneumonia involving the left lower and right middle lobes of the lungs, (4) coronary vascular disease with a history of subacute myocardial infarction, (5) history of tobacco abuse, (6) obesity, and (7) pleurisy caused by a pulmonary embolus. (Id.). Dr. Gondwe commented that Plaintiff's chest x-rays showed improvement of the lung tissue, and that Plaintiff's echocardiogram was "technically a very difficult study with enlargement of the left ventricle." (Id.). Further, Dr. Gondwe stated that Plaintiff was not to work for two months after hospitalization, should try to quit smoking, and should follow-up with him and with Dr. Harb as scheduled. (Id.). Dr. Gondwe offered Plaintiff nicotine patches, but reported that Plaintiff had not committed himself to quitting smoking yet. (Id.). Dr. Gondwe documented his concern that Plaintiff could "force more damage to the heart" if he smoked while using nicotine patches. (Id.).

  Plaintiff followed up with Dr. Harb on May 6, 1997. (Tr. 279). At that time, Plaintiff denied chest pain, shortness of breath, dizziness or loss of consciousness. (Id.). Plaintiff had dyspnea*fn13 on exertion and some palpitations,*fn14 but reported feeling "much better." (Id.). Dr. Harb noted that Plaintiff was "rather noncompliant" and continued to smoke very heavily. (Id.). Dr. Harb's examination of Plaintiff revealed a morbidly obese individual with stable vital signs, clear lungs, a heart beating at a regular rate and rhythm, and no edema*fn15 in the extremities. (Id.). Dr. Harb "strongly advised [Plaintiff] to stop smoking and modify other risk factors." (Id.).

  On May 8, 1997, Plaintiff saw Dr. Harb for a second follow-up visit. (Tr. 278). According to Dr. Harb

 
. . . [Plaintiff] presented after [medical staff] called him for follow-up and evaluation. [Staff called] the [Plaintiff in the] evening and during the night to have him follow-up . . . and [] were not able to get a hold of him until today.
(Tr. 278). Plaintiff's health status was relatively unchanged compared to his May 6, 1997 examination. (Id.). Dr. Harb again reported that Plaintiff continued to smoke heavily, in spite of being instructed to stop smoking and modify other risk factors. (Id.).

  Handwritten medical records reveal that Plaintiff was seen on May 16, 1997. (Tr. 277). The assessment and plan from this appointment are largely illegible, and the signature of the treating practitioner cannot be deciphered. (Id.).

  Plaintiff's next medical appointment was on May 19, 1997, with Dr. Harb. (Tr. 276). At that time, Dr. Harb dictated that Plaintiff was
somewhat of a poor historian and difficult to assess. He appears to have some denial problems. He is asymptomatic at this time. The patient does feel better since he was started on [a beta-blocker].
(Id.). Because Plaintiff continued to smoke heavily, and because an electrophysiologist apparently documented certain findings which Dr. Harb wanted to follow-up on, Dr. Harb switched Plaintiff's anticoagulant medication, and advised cardiac catheterization for that day.*fn16 (Id.). Plaintiff declined admission at that time, and arranged admission for cardiac catheterization at a later time. (Id.). Dr Harb again advised Plaintiff to stop smoking and modify his other risk factors. (Id.).
  On May 20, 1997, Plaintiff was evaluated for admission to the Samaritan Health System for cardiac evaluation and management. (Tr. 293). At the time of Plaintiff's "History & Physical" examination by Dr. Harb, Plaintiff was asymptomatic and appeared to be in no acute distress. (Id.). Again, Dr. Harb noted that Plaintiff was difficult to assess because he provided a poor history of his situation and appeared to have denial problems. (Id.). Dr. Harb's discharge summary for this hospitalization reported the following final diagnoses:
(1) Coronary artery disease . . . on the basis of his clinical presentation (at that time patient did not seek medical attention) with atypical angina which appears to be stable.
(2) Pulmonary embolism per ventilation-perfusion lung scan in April 1997.
(3) Morbid Obesity.
(4) Hyperlipidemia.
(5) Nicotine Addiction.
(6) Accelerated intraventricular rhythm on Holter monitor which [has] now improved after treatment.
(7) Latent congestive heart failure, ejection ...

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