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Martinez v. Astrue

March 29, 2010


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


Plaintiff Jose L. Martinez claims that he is disabled due to depression. He filed this action seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying 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(d), 1381a. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and Plaintiff has moved for summary judgment. For the reasons set forth here, the motion is granted in part and denied in part.


Plaintiff applied for DIB and SSI on October 25, 2006, alleging that he became disabled on April 1, 2002 due to depression, suicide attempts and "black out spells." (R. 132-37, 157.) The applications were denied initially on January 24, 2007, and again on reconsideration on June 18, 2007. (R. 52-56, 58-61.) Plaintiff requested an administrative hearing, which Administrative Law Judge Edward B. Pappert (the "ALJ") held on April 7, 2008. Several months later, on November 21, 2008, the ALJ found that Plaintiff is not disabled because he is capable of performing his past relevant work as a board up person and/or an insulation installer. (R. 10-18.) The Appeals Council denied Plaintiff's request for review on March 18, 2009, and affirmed the denial on August 27, 2009 after considering additional evidence. (R. 1-3, 4-6.) Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner.


Plaintiff was born on August 14, 1956 and was 52 years old at the time of the ALJ's decision. (R. 135.) He attended school through the ninth grade, but he speaks only limited English and needed a Spanish-language interpreter at his hearing. (R. 21, 26-27, 156.) Plaintiff has worked as a board up person and an insulation installer. (R. 40-41, 43, 203.)

A. Medical History

On August 31, 2004, Plaintiff voluntarily admitted himself to Chicago Read Mental Health Center due to depression with suicidal ideation. (R. 212.) After a successful heroin detoxification, Plaintiff was reassessed as psychiatrically stable and discharged on September 13, 2004. Doctors noted that Plaintiff's depressed mood had resolved, and that there was "no recurrence of suicidal thoughts" at that time. (Id.) Plaintiff also "appeared appropriate"; "attended to his personal hygiene and necessities adequately"; was "intact with reality... coherent [and] logical"; showed "no looseness of association, flight of ideas or ideas of reference"; and demonstrated good insight and judgment. (R. 213.)

Plaintiff had a Mental Health Assessment on November 7, 2006, and reported feeling sad, anxious, tired and hopeless. He also said that he experienced persecutory hallucinations, nightmares, headaches, suicidal thoughts and exaggerated fears, and he avoided places and situations. Hilda Tamayo, a Qualified Mental Health Professional with the Chicago Department of Public Health, Division of Mental Health ("CDPH"), noted that it was "[d]ifficult to determine" Plaintiff's reliability, but she diagnosed him with severe major depression with psychosis and seasonal affective disorder. (R. 298, 308, 310.) Also on November 7, 2006, Plaintiff's friend Mercedes Pepin completed a Function Report - Adult Third Party on his behalf. (R. 165-72.) Ms. Pepin lets Plaintiff live in her basement, and indicated that he watches a lot of television, and mainly stays in his room alone and sleeps during the day. (R. 165.) She stated that he is unable to work due to anxiety and lack of concentration, and he has become "more of an introvert with very limited skills." (R. 171.)

Records from CDPH dated November 7 and 14, 2006 indicate that Plaintiff was referred for individual and group therapy. (R. 347-48.) On December 19, 2006, Jessie Mabaquiao, M.D., of CDPH examined Plaintiff and indicated that he was feeling better, though still hearing voices. Dr. Mabaquiao found Plaintiff to be "improved," with good insight and intact judgment; diagnosed major depression and polysubstance problems; and increased his medications. (R. 361.)

On January 9, 2007, Plaintiff saw Robert W. Buchanan, M.D., for a consultative psychiatric evaluation. (R. 263-67.) Dr. Buchanan described Plaintiff as "fidgety" and "not a particularly good historian." (R. 263.) He also observed that Plaintiff was "shaky," "somewhat agitated," "easily distracted" and "depressed." (R. 265.) Plaintiff told Dr. Buchanan that he is not allowed to use the kitchen because he left the stove on a couple times, and that he has no friends and usually stays alone. Plaintiff's thought processes revealed auditory hallucinations, moderate paranoia and suicidal ideation, but no looseness of association or homicidal thoughts. (Id.) Dr. Buchanan diagnosed "Recurrent Major Depression with psychotic features," "History of Polysubstance Abuse" and "History of Marital Problems." (R. 266.) He recommended that Plaintiff's psychiatric treatment be "bolstered with changes in his medication and perhaps some more psychotherapy to help him get back on his feet." (Id.) At the time, Plaintiff reported taking Risperdal (an antipsychotic) and Lexapro (an antidepressant). (R. 264.)

One week later on January 16, 2007, Plaintiff attended therapy with Therapist Tamayo at CDPH. He reported continued feelings of paranoia and stated that he prefers to stay in bed watching television. Therapist Tamayo confirmed that Plaintiff presented with depressive and psychotic symptoms, and recommended an increase in his medication. (R. 346.) The same day, Plaintiff told Dr. Mabaquiao that he was still hearing voices of his dead relatives and feeling paranoid, and he described sometimes having a "blank mind." Dr. Mabaquiao diagnosed Plaintiff with Bipolar Disorder, increased his dosage of Risperdal, and added a prescription for Depakote.*fn1

(R. 362.)

On January 18, 2007, Ronald Havens, Ph.D., performed a Psychiatric Review Technique of Plaintiff. (R. 268-81.) Dr. Havens found Plaintiff moderately limited in his ability to maintain social functioning, concentration, persistence or pace, and mildly limited in his activities of daily living. (R. 278.) In reaching this conclusion, Dr. Havens reviewed the statement from Ms. Pepin; records from Chicago Read Mental Health Center; and Dr. Buchanan's January 9, 2007 report.

(R. 280.) Also on January 18, 2007, Dr. Havens conducted a Mental Residual Functional Capacity Assessment of Plaintiff. (R. 282-85.) He found Plaintiff moderately limited in his ability to understand, remember and carry out detailed instructions, and in his ability to set realistic goals or make plans independently of others. (R. 282-83.) Dr. Havens opined that "[a]ll things considered it is likely that claimant['s] presentation at [the consultative examination with Dr. Buchanan] is not entirely credible for severity but whether or not this is the case he can understand and remember well enough to engage in simple assignments." In Dr. Haven's view, Plaintiff can "concentrate and persist adequately on repetitive, routine tasks," and has both adequate social skills and the emotional temperament required to interact appropriately with others and adjust to minor routine changes in the work environment. (R. 284.)

Dr. Mabaquiao's progress notes indicate that on March 1, 2007, Plaintiff was feeling better with good insight, intact judgment and no active ideations or plans regarding suicide. Plaintiff continued to experience delusions, but his overall condition was "improved." Dr. Mabaquiao confirmed a diagnosis of major depression and increased Plaintiff's medications. (R. 359.) By March 29, 2007, Plaintiff was feeling better and less paranoid. Dr. Mabaquiao described him as stable and improved, with good insight, intact judgment and no hallucinations or delusions. (R. 360.)

On April 28, 2007, Lionel Hudspeth, Psy.D, reviewed Plaintiff's file and affirmed Dr. Havens's January 18, 2007 mental assessment. (R. 291-92.) Dr. Hudspeth noted that Plaintiff reported no change in his conditions or any new impairments, and found that he "retains the capacity to perform unskilled work with additional social limitations." (R. 292.)

On June 15, 2007, Therapist Tamayo noted that Plaintiff was in compliance with his medications and therapy "now and then." Plaintiff continued to focus on the fact that he could no longer work as an electrician, but his social circle was increasing and he was looking to connect with people. Therapist Tamayo deemed this a "marked improvement" from when he started therapy. (R. 376.) The following month, on July 25, 2007, Therapist Tamayo indicated that Plaintiff needed both individual and group therapy, but that he did not wish to participate in group therapy.

(R. 374.) She described his attendance at treatment as fairly consistent, and noted that he was cooperative and "generally follows through on recommendations of the therapist and psychiatrist."

(R. 375.)

On October 18, 2007, Joyce Wall, another therapist from CDPH, talked to Plaintiff about the need to reorder his medications. (R. 373, 407.) The next day, Plaintiff told Dr. Mabaquiao that he had run out of medication for two months because he went to Puerto Rico to visit family. Plaintiff complained of depression, mood swings, racing thoughts, insomnia and paranoia. Plaintiff also reported, however, that he felt "alright" when he was taking his medication. (R. 379, 413.) During a therapy session the same day, Therapist Tamayo noted that Plaintiff was not following up with treatment "as had been the case previously." She also reported that he was experiencing more depressive episodes during the winter months. (R. 408.)

A couple months later on January 2, 2008, Therapist Tamayo observed that Plaintiff was well-dressed and well-groomed, and reported that he was "wanting to change" his life. Therapist Tamayo told Plaintiff to comply better with his therapy appointments, and recommended that he join Narcotics Anonymous ("NA") and find a sponsor. (R. 382, 405.) Dr. Mabaquiao examined Plaintiff on January 8, 2008, and found him to be neat and appropriate with intact judgment. Dr. Mabaquiao indicated that Plaintiff was still depressed and suffering from delusions, but with medication he experienced "[l]ess voices, less depress[ion] and mood swing and racing thoughts."

(R. 384, 412.) Plaintiff was not taking his medication regularly, however, and complained of feeling paranoid, having bad dreams and hearing the voices of dead relatives. Dr. Mabaquiao opined that Plaintiff was doing better overall ...

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