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Diaz v. Astrue

February 2, 2010

GARY GUMER DIAZ PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Morton Denlow

MEMORANDUM OPINION AND ORDER

Claimant Gary Gumer Diaz ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Commissioner"), denying Claimant's applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Claimant raises the following issues: 1) whether the ALJ erred in finding that Claimant is not disabled absent substance abuse; 2) whether the ALJ erred in his credibility finding; and 3) whether the ALJ erred in not properly considering Claimant's mental impairments. For the following reasons, the Court denies Claimant's motion for reversal or remand and grants the Commissioner's cross-motion for summary judgment.

I. BACKGROUND FACTS

A. Procedural History

Claimant initially applied for DIB on March 15, 2007, alleging a disability onset date of November 15, 2005. R. 53-56, 108-10. He also filed an application for SSI on May 22, 2007 on the basis of disability. R. 116-18. The Social Security Administration ("SSA") denied both claims on July 24, 2007. R. 74-78. Claimant then filed a request for reconsideration on August 20, 2007, which was denied on November 2, 2007. R. 79, 80-83. Thereafter, Claimant requested a hearing before an ALJ. R. 90.

On April 15, 2008, Administrative Law Judge Daniel Dadabo ("ALJ") presided over a hearing at which Claimant appeared with his attorney, Harold M. Saalfeld. R. 6-52. William J. Schweihs, a Vocational Expert ("VE") testified in addition to Claimant. R. 37, 104-05. No medical expert testified at the hearing. The ALJ returned a decision finding Claimant was not disabled under the Social Security Act on July 25, 2008. R. 57-70. The ALJ found that "[b]ecause the Claimant would not be disabled if he stopped substance use . . . [he] has not been disabled with the meaning of the Social Security Act . . . ." R. 70.

Claimant filed for a review of the ALJ's decision to the Appeals Council, which denied Claimant's request on March 11, 2009. R. 1-3. Therefore, the ALJ's decision became the final decision of the Commissioner. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony - April 15, 2008

1. Gary Gumer Diaz - Claimant

At the time of the hearing, Claimant was 42 years old and living with his mother. R. 11, 35-36. Claimant dropped out of high school following the 11th grade, but received his GED in 1990 and clerical training in 1992. R. 11, 39. Claimant has been employed by at least 28 different employers in the course of his work life. R. 10. Claimant testified that his criminal record makes it difficult for him to get work. R. 18. Claimant pled guilty to accessory theft in the mid 1990s and to criminal sexual abuse in 2002, and served jail time after breaking his probation by "self-medicating" with cocaine. R. 18, 22, 27. Claimant was incarcerated from November 2005 to January 2007. R. 18, 27, 260-351. According to Claimant, he spent half of his time in prison on suicide watch. R. 28.

Claimant has been unemployed since 2007. R. 16. His most recent work experience was working for short periods at jobs found through temporary labor agencies, most recently as a die caster, a job that required hand-eye coordination. R. 30-31. Claimant's prior work history includes working as an assembler in a plant, driving a forklift in shipping and receiving, and loading and unloading trucks, among other things. R. 17, 19-20, 41. Claimant noted troubles performing some of the duties at the manufacturing plant due to his medications and periods of mental "short circuits." R. 11, 32. He also reported having trouble coming to work every day, as he frequently needed to take a couple of days off due to anxiety and other mental health issues. R. 17-18.

According to Claimant, he suffers from depression and acute anxiety. R. 14-15. He has been hospitalized on numerous occasions for suicide attempts, three times between 1992 and 1998 and again in December 2007 and February 2008. R. 13-14. Claimant states that he often resorts to cutting himself when he feels especially anxious or depressed. R. 26, 28. He believes the depression to be the result of an unhappy childhood combined with the tragic death of a young wife when he was still a teenager. R. 15.

Claimant's anxiety makes it very difficult for him to be around many people at the same time. R. 15, 21. His anxiety causes pressure in his chest and a shortness of breath. R. 15, 35. Claimant also testified that he suffers from mood swings and panic attacks. R. 21.

Occasionally Claimant has what he refers to as a "short circuit" or "cycle" wherein his energy level drops dramatically or he feels the urge to harm himself. R. 32-34. This anxiety is present when he is in a workplace where many people work together, and Claimant testified it has prevented him from working around other people. R. 11, 15, 21.

Claimant's treating psychiatrist is Dr. Robert Grunsten, M.D. ("Dr. Grunsten"), who Claimant has seen since December 2007. Claimant testified that Dr. Grunsten has prescribed him several medications, and at the time of the hearing he was taking Lamactil and Valium for anxiety, Thorazine for mood swings, and Remeron for sleep problems. R. 12, 21. According to Claimant, even with these medicines, he is "barely functioning." R. 11. He is currently not undergoing therapy with Dr. Grunsten. R. 26.

Claimant has a history of using drugs and alcohol to self-medicate and testified that he had used cocaine as recently as February 2008, two months prior to the hearing. R. 22-23. When first asked, Claimant denied using cocaine at any time after 2001, but after careful questioning he stated he had used cocaine in 2007 and in 2008. Id. Claimant began his substance use as a way to cope with his mental illness. He did not have insurance at the time and believed that the use of illegal substances was his only option. R. 22. After a period of self-medication, the drug use "turned into a different addiction." Id. Claimant testified that his anxiety and depression would likely not become more manageable if he were to discontinue his use of cocaine and alcohol, noting that during periods where he did not have drugs in his system, he still experienced symptoms. R. 23-25.

Claimant testified that he does not typically socialize much outside the home. R. 35.

On a typical day, he sleeps for a large portion of the day, does light chores, and occasionally listens to music. R. 29, 34. Claimant testified to having problems remembering to eat and needing to be reminded to do so by his mother. R. 29-30. He occasionally helps his mother with the laundry or garbage, or runs to the store for items, as long as there is no chance that doing so could allow him to harm himself. R. 35. When he was last working, Claimant would usually drive himself the six minutes to work everyday. R. 19.

2. William J. Schweihs - Vocational Expert ("VE")

William J. Schweihs, a Vocational Expert, characterized Claimant's past work experience as semi-skilled that required anywhere from light to heavy physical exertion. R. 43. The VE noted that it was difficult to classify all of Claimant's past employment, as he was not sure of the nature of many of the 28 jobs that Claimant had held. R. 43.

The VE considered limitations the ALJ put on any potential position, including moderate restrictions on social functioning and concentration and a ban on operating heavy machinery or being exposed to great heights. R. 44. The VE testified that cleaning or janitorial positions fit those restrictions and require anywhere from light to heavy physical exertion. R. 44-45. The VE testified there are 5000-6000 such positions in the greater Chicago area. Id. The VE stated these positions would require Claimant to work 8 hours a day, 5 days a week. R. 45-46. These positions do not generally allow for unscheduled breaks during the work day, nor do they allow a person to miss work a few times a month.

R. 47-49. These positions would require less contact with people throughout the course of the day. R. 49. In response to Claimant's attorney, the VE also testified that if limited to an environment where an individual would never encounter a sharp cutting instrument, it would effectively eliminate all work. R. 51.

C. Medical Evidence

1. Treatment at the Illinois Department of Corrections ("IDOC")

Claimant was incarcerated, apparently in several different facilities, from November 2005 to January 2007, and his medical records from the IDOC date back to January 2006.

R. 260. In April 2006, he was placed on Prozac for depression and anxiety. R. 337. In May, the Claimant denied that he was suicidal. R. 296. In September, Claimant was placed on Observation Status, stating he was depressed, and asked for a change in his medicine. R. 305. The IDOC psychologist, Dr. James Nielsen ("Dr. Nielsen"), diagnosed Claimant as major depressive disorder, social phobia, and cocaine dependence. R. 347. In October, Dr. Nielson noted ...


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