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Downie v. Astrue

March 24, 2010

PATRICK DOWNIE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Nan R. Nolan

MEMORANDUM OPINION AND ORDER

Plaintiff Patrick Downie claims that he is disabled due to major depressive disorder, obstructive chronic bronchitis, hypertension, diabetes mellitus, cardiomyopathy with defibrillator placement, asthma, pulmonary disease and shingles. He seeks judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying his claims for Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 405(g), 1383(c)(3). The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and have filed cross-motions for summary judgment. For the reasons explained below, this case is remanded for further proceedings consistent with this opinion.

PROCEDURAL HISTORY

Mr. Downie applied for DIB and SSI on June 20, 2006, alleging that he became disabled on September 6, 2005. (R. 140-44.) The application was denied initially on October 12, 2006, and upon reconsideration on March 2, 2007. (R. 76-89.) Mr. Downie appealed the Commissioner's decision and, on March 30, 2007, requested an administrative hearing. (R. 90.) The hearing was held before Administrative Law Judge Daniel Dadabo (the "ALJ") on December 7, 2007. (R. 8-49.) On January 25, 2008, the ALJ denied Mr. Downie's claims for benefits, finding that despite his multiple severe impairments, there are jobs that he can perform that exist in sufficient numbers in the national economy. (R. 57-72.) On November 24, 2008, the Appeals Council denied Mr. Downie's request for review. (R. 1-3.) Thus, the ALJ's decision stands as the final decision of the Commissioner. See 20 C.F.R § 416.1481.

FACTUAL BACKGROUND

Mr. Downie was born on September 11, 1959, making him 48 years old at the time of the hearing before the ALJ. (R. 15, 140.) He attended school through the tenth grade. (R. 15.) Mr. Downie worked as a garbage man for the Village of Skokie, and as a maintenance man for two different condominium towers for the better part of twenty years before he ceased working in September 2005. (R. 176.)

A. Medical Evidence

1. Physical Impairments

The first medical report of record relating to Mr. Downie's physical health is from March 31, 2006, when he went to St. Francis Hospital complaining of increasing shortness of breath over a period of several days. (R. 255-58.) Mr. Downie was diagnosed with dyspnea and bronchospasm, and received a breathing treatment and intravenous steroids. (R. 262.) He returned to St. Francis Hospital four weeks later on April 27, 2006, once again reporting difficulty breathing. (R. 269.) At that visit, Mr. Downie was diagnosed with acute asthma exacerbation, and was treated with aerosolized Albuterol. (R. 274.) The following week on May 6, 2006, Mr. Downie reported to Evanston Northwestern Healthcare ("ENH") due to another incidence of shortness of breath, and was again diagnosed with asthma exacerbation. (R. 275.) He was treated with Prednisone and directed to continue home breathing treatments. (R. 278.) On May 15, 2006, Mr. Downie returned to the emergency room at ENH complaining of shortness of breath and unrelenting wheezing. (R. 285-86.) W hen hospital administration of Prednisone and Albuterol failed to abate his breathing difficulties, he was admitted for further management, but discharged the following day. (R. 289, 298.)

Mr. Downie did not stay away from the hospital for long, however, as he returned to ENH on June 12, 2006, for worsening shortness of breath and wheezing. (R. 305-06.) He was admitted for treatment and testing, including an echocardiogram ("ECHO") to determine whether he was suffering from hypertrophic cardiomyopathy. (R. 308, 315.) Testing for cardiac impairments was particularly pertinent in light of the fact that two of Mr. Downie's brothers died of cardiac impairments while in their twenties (23 and 29). (R. 316.) The ECHO revealed abnormal findings of moderate to severely increased LV wall thickness, moderately increased left ventricular outflow tract velocity, significant intracavity obstruction, and an impaired relaxation pattern of LV diastolic filling. (R. 321.) These test results, combined with Mr. Downie's family history, led hospital physicians to lock in a diagnosis of hypertrophic cardiomyopathy. (R. 322.) They determined that he needed an Automatic Implantable Coronary Defibrillator ("AICD"); indeed, on June 15 a cardiologist emphasized "the need for AICD now." (R. 340.) Given the possibility of "sudden cardiac death," Mr. Downie underwent AICD surgery on June 16, 2006, and was discharged in stable condition the following day. (R. 353-55.)

Mr. Downie followed up with his regular treating physician, Steven Mottl, M.D., on June 21, 2006. (R. 421.) Dr. Mottl noted that Mr. Downie was "[f]eeling much better" at that time. (R. 423.) Mr. Downie also followed up with cardiologist Andrew Hamilton, M.D., on July 26, 2006. (R. 416-18.) Dr. Hamilton noted that despite the surgery, Mr. Downie continued to experience shortness of breath and his hypertrophic cardiomyopathy was still causing symptoms, as evidenced by the fact that his heart rate was not well controlled. (R. 418.) W hen Mr. Downie saw Dr. Mottl again on September 6, 2006, he was still complaining of shortness of breath. (R. 406.) On October 24, 2006, Mr. Downie met with another cardiologist, Mark Lampert, M.D., who noted that Mr. Downie "has a history of hypertrophic obstructive cardiomyopathy and premature sudden death in first degree relatives." (R. 400-01.) Dr. Lampert also noted that after the prophylactic AICD placement, Mr. Downie was being treated with beta blockers and calcium channel blockers, and was "doing much better in terms of shortness of breath with this therapy." (R. 401.) Dr. Mottl examined Mr. Downie again on December 6, 2006, and noted a new complaint that at night, "it feels like someone is sitting on my chest." (R. 393.)

Mr. Downie next visited the emergency room at ENH on March 5, 2007, complaining chiefly of difficulty breathing. (R. 509.) Doctors diagnosed him with obstructive chronic bronchitis with exacerbation, and admitted him to the hospital for four days to treat his continued wheezing. (R. 509-10.) During that stay, Mr. Downie stated that he had been feeling depressed since his health had gotten worse. (R. 514.) Mr. Downie returned to the ENH emergency room three times in April 2007 due to a diagnosis of Zoster (commonly known as shingles), complicated by Post Herpetic Neuralgia. (R. 113-15.)

Also in April 2007, Dr. Mottl completed a Physical Residual Functional Capacity ("RFC") Questionnaire regarding Mr. Downie. (R. 109-12.) Dr. Mottl noted that he had been treating Mr. Downie for two years, and diagnosed him with the following impairments: chronic obstructive pulmonary disease, implantable cardiac defibrillator, diabetes mellitus, hypertension, and cardiomyopathy. (R. 109.) Dr. Mottl characterized these impairments as chronic conditions manifested by fatigue and shortness of breath, and opined that Mr. Downie's physical symptoms would frequently interfere with the attention and concentration needed to perform even simple work tasks. (R. 109-10.) Dr. Mottl indicated that based on Mr. Downie's cardiac history, he could be capable of performing low stress jobs involving only desk work; he could stand for only fifteen minutes before needing to sit down or walk around; he could never lift fifty or even twenty pounds; but he could lift ten pounds frequently. (R. 110-11.) Dr. Mottl concluded that Mr. Downie's impairments were likely to produce "good days" and "bad days," and that they would cause him to be absent from work about four days per month. (R. 112.)

2. Mental Impairments

The first medical report of record regarding Mr. Downie's mental health is from November 17, 2006, when he had his first appointment with Lorraine Gade, Licensed Clinical Social W orker (LCSW ). (R. 480-81.) Therapist Gade diagnosed Mr. Downie with a depressive disorder, noting that his mood was depressed nearly every day and that he was crying nearly every day, in part because he constantly thought about his two younger brothers who had died five and ten years prior, respectively. (R. 480.) Mr. Downie reported that he felt guilty that he survived his brothers and visited their gravesites weekly. Therapist Gade noted that Mr. Downie had difficulty sleeping, and indicated that he "wakes up feeling like someone is standing on his chest (over where pacemaker was put in)." (R. 480.) Therapist Gade recommended that Mr. Downie see a psychiatrist, because without treatment his symptoms would most likely worsen. (R. 480-81.)

Mr. Downie returned to see Therapist Gade two weeks later, at which time he presented as being depressed "all the time," with loss of interest in socializing with friends. (R. 482-83.) Therapist Gade noted that his affect was still dysphoric at that time, and the pattern continued at their subsequent appointment on December 14, 2006. (R. 482, 484-85.) Therapist Gade noted that Mr. Downie was still depressed and dysphoric on that date, but was motivated to help himself overcome his depression. (R. 484.) She gave him suggestions for finding employment, opining that employment would probably reduce his depression, and she continued to urge psychiatric consultation. Mr. Downie declined the latter suggestion, however, stating that he was already taking enough medications and did not want to take any more. (R. 484-85.)

At their next bimonthly meeting on December 29, 2006, Therapist Gade noted that Mr. Downie was still depressed and dysphoric. (R. 486-87.) She encouraged him to look for part time work and borrow money to attend a DUI program so that he could get his driver's license back. (Id.) The next appointment, on January 12, 2007, brought more of the same; i.e., Mr. Downie was feeling depressed and sad despite trying to help himself. (R. 488-89.) At their February 2, 2007 appointment, Therapist Gade noted that Mr. Downie was depressed and tearful and that he "[c]an't stop thinking about his deceased brothers." (R. 490.) She also found that he seemed more energized, however, and was following her recommendation of applying for part time work to earn money for the DUI program in order to get his driver's license back. (R. 490-91.)

On April 18, 2007, Mr. Downie met with clinical psychologist Tara Gidney, Psy.D, at the same Resurrection Health Care center where he saw Therapist Gade. (R. 518-19.) Dr. Gidney noted that Mr. Downie was "struggling with depression due to impact of life events, inability to drive and health issues complicating quality of life." (R. 518.) She felt that he needed treatment to enhance coping skills for depression. (Id.) Two days later, on April 20, 2007, Therapist Gade observed that Mr. Downie was very depressed and lethargic, and noted that he felt he would be "unable to work at a job due to difficulty concentrating and dysphoric mood." (R. 520-21.) She found that Mr. Downie was feeling more discouraged about his life, was socially isolated, and was frequently visiting the cemetery where his brothers were buried. Therapist Gade also noted that Mr. Downie was "miserable" from the shingles, even crying from pain. She saw no improvement in his mood and noted that he was still dysphoric. (Id.)

Therapist Gade completed a Mental RFC Questionnaire regarding Mr. Downie on April 24, 2007. (R. 105-08.) She stated that Mr. Downie had a depressed mood nearly every day, was crying nearly every day, had difficulty sleeping, was apathetic, had difficulty concentrating, and had shown little improvement over the course of treatment. (R. 105.) Therapist Gade reported that Mr. Downie's signs and symptoms included anhedonia or pervasive loss of interest in almost all activities; decreased energy; feelings of guilt or worthlessness; generalized persistent anxiety; mood disturbance; difficulty thinking or concentrating; recurrent and intrusive recollections of a traumatic experience causing marked distress; persistent disturbances of mood or affect; and emotional lability. (R. 106.) Therapist Gade opined that Mr. Downie had no useful ability to maintain attention for a two hour segment; maintain regular attendance and be punctual within customary, usually strict tolerances; or deal with normal work stress. She also found that Mr. Downie was unable to meet competitive standards with regard to working in proximity with others without being unduly distracted, and that his impairments would cause him to miss work more than four days per month. (R. 107-08.) Lastly, Therapist Gade marked that neither alcohol nor substance abuse contributed to any of Mr. Downie's limitations. (Id.)

At his next appointment with Therapist Gade on May 15, 2007, Mr. Downie reported being very depressed. (R. 522.) He told Therapist Gade that he realized he needed to let go of his two deceased brothers, but could not, and that he had not been able to follow through on getting his driver's license back. (Id.) Therapist Gade observed that Mr. Downie was "obviously not feeling well physically" at that time, as he continued to appear miserable from the pain caused by shingles. (Id.) On June 14, 2007, Therapist Gade noted that Mr. Downie was still depressed, reporting that he cried some nights and mostly stayed home doing very little. (R. 524-25.) She continued to urge him to try to get his driver's license back, but Mr. Downie responded that he did not have the requisite $300 for the application fee. (Id.)

Yet again on July 27, 2007, Therapist Gade noted that Mr. Downie was depressed, with decreased energy and social isolation. (R. 526-27.) She found that he still could not resolve the deaths of his two brothers, which contributed to his ongoing depression in combination with his heart surgery and lack of a job. (R. 526.) At this appointment, Mr. Downie for the first time concurred "that he probably need[ed] medication because he [was] unable to let go of brothers and he was agreeable to psychiatric consultation." (Id.) Nearly three months later, on October 18, 2007, Therapist Gade noted that Mr. Downie's major depressive disorder was in partial remission, but that he was still depressed and lethargic, and had decreased motivation to work. Mr. Downie was also still trying to cope with the loss of his brothers, and reported "questioning whether there is a God and why God would take his younger brother[s] from the family." (R. 536.) Therapist Gade indicated that Mr. Downie would call her for his next appointment, as he was "relatively stable." (R. 537.)

Mr. Downie failed to appear for an appointment with psychiatrist Vasilis Siomopoulos, M.D., on September 28, 2007, but he did keep an appointment on November 15, 2007. (R. 530-35, 538.) Dr. Siomopoulos noted Mr. Downie's complaints of depression, disturbed sleep, crying spells, and obsessive ruminations about his two deceased brothers. (R. 530.) He opined that Mr. Downie's level of attention was good, although his insight was poor; assigned Mr. Downie a ...


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