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Bailey v. Astrue

April 16, 2010

WILL J. BAILEY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Wayne R. Andersen United States District Judge

Wayne R. Andersen District Judge

MEMORANDUM OPINION AND ORDER

This matter comes before the court on the cross-motions for summary judgment of the Plaintiff, Will J. Bailey ("Bailey" or "Plaintiff"), and the Defendant, Michael J. Astrue, Commissioner of Social Security ("Commissioner" or "Defendant"), pursuant to Fed. R. Civ. P. 56. For the reasons stated below, Defendant's motion [23] is granted, and Plaintiff's motion [17] is denied.

BACKGROUND

Plaintiff was receiving Social Security Supplemental Income ("SSI") benefits which were cancelled effective January 1, 1997. He filed this case challenging the cancellation of those benefits.

I. The Initial Application for Social Security Supplemental Income

Plaintiff filed an application for SSI on January 3, 1995. (R. 55-56). He was seen on March 28, 1995 by Orthopedist S. Sanghvi, M.D. and reported to Dr. Sanghvi that he had had back pain "off and on" since an automobile crash in 1964. (R. 115). Bailey explained that he was not able to "sit for more than half an hour or stand for more than half an hour in one place" because of pain, that his "right leg goes numb if [he] walk[s] half to one block," that he "get[s] pain in [his] lower part of the back . every day and night," and that the "pain is sometimes affected by coughing and it is also worse in cold and damp weather." Id. Dr. Sanghvi noted that Plaintiff "walked without a limp," "could walk on heels and toes," and "could tandem walk as well as he could squat and kneel down." (R. 116). He further noted that Plaintiff "had full movement of the cervical spine," "no muscle spasm in the neck," "no obvious clinically demonstrable neurological deficit in the upper extremities," and "normal dexterity of the fingers of both hands." Id. Dr. Sanghvi also indicated that Plaintiff had "mild stoop, pelvic tilt, and mild dorsolumbar scolosis" and "tight hamstrings," but "no obvious clinically demonstrable neurological deficit in the lower extremities," "no muscle weakness in the lower limbs," and "no sensory deficit detected on testing for soft touch and with a pinwheel." Id. According to Dr. Sanghvi, Plaintiff's x-rays showed "advanced degenerative changes and also a degree of spondylolisthesis secondary to osteoarthritis." (R. 116-117).

On April 4, 1995, Plaintiff saw a psychiatrist, G. Sadasivan, M.D. (R. 118-121). Dr. Sadasivan noted that Plaintiff "abused alcohol, cocaine and heroin since he was 17 years old, and he was in three treatment programs in Chicago." (R. 118). He indicated that Plaintiff reported that he "quit using heroin and cocaine" and "is now on methodone but . still drinks alcohol."

Id. Dr. Sadasivan also reported that Plaintiff "drinks alcohol by himself" and "said he still craves alcohol and crack cocaine." (R. 119) Dr. Sandasivan diagnosed Plaintiff with "Organic mood disorder; Organic hallucinosis; Alcohol abuse; History of crack cocaine and heroin abuse in the past." (R. 121).

On April 12, 1995, Dr. James T. Bianchin, M.D. prepared a Physical Residual Functional Capacity (RFC) Assessment. (R. 122-129). The purpose of an RFC assessment is to rate the remaining functional capacity of a SSI claimant after taking into account the claimant's mental or physical disability. An RFC assessment can be prepared by an examining physician or by a non-examining physician who examines the claimant's medical records, as was the case here with Dr. Bianchin. (Pl.'s Mot. for Summ. J. or Remand at 13).

In his RFC assessment, Dr. Bianchin recommended the following "Extertional Limitations" for Plaintiff: occasionally lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds, stand and/or walk for about 6 hours in an 8 hour workday, sit for about 6 hours in an 8 hour workday, and push and/or pull in an unlimited fashion other than the restrictions mentioned for lift and/or carry. (R. 123). In the section of the assessment requesting that Dr. Bianchin list the specific facts upon which his conclusions were based, he wrote: "52 y/o clt. alleges [illegible] low back pain due to [automobile accident] in 1964. Walked without a limp. Able to walk on heels and toes. [illegible] squat." Id. On the next page of the assessment, Dr. Bianchin continued, "Full ROM lumbar spine. 90° Flex. L leg 1/2 " longer than right. No [illegible] to support a significant sensory, motor, or [illegible] deficiency. [illegible]." (R. 124). He noted that climbing of ramp/stairs/ladder/rope/scaffolds, stooping, and crouching should be limited to occasionally. Id. However, in the section below these postural limitations, he did not "fully describe" or "explain" his conclusions and he listed no "specific facts upon which [his] conclusions were based." Id. He noted that there were no recommended manipulative, visual, communicative, or environmental limitations. (R. 125, 126). Finally, Dr. Bianchin wrote, "[a]lthough radiological picture of [illegible] is recognized as 'abnormal'-Clt. [illegible] has findings consistent with limitations imposed by this RFC or better." (R. 128).

On April 17, 1995, Plaintiff was seen by a psychologist, Dr. Edward A. Czarnecki, Ph.D. (R. 134-142). Dr. Czarnecki diagnosed Plaintiff with having a Substance Addiction Disorder (R. 134, 140) evaluated under the category of Organic Mental Disorders (R. 134, 136, 140), and Personality Disorders (R. 134, 139, 140). Dr. Czarnecki noted that an RFC assessment was necessary as "a severe impairment is present which does not meet or equal a listed impairment."

(R. 134).

The mental RFC Assessment was prepared that same day on April 17, 1995. (R. 130- 133). It stated, "[t]his is 52 yo clmt has [history of] DAA. [illegible] finds [illegible] DAA [illegible] mood, [illegible] and memory [illegible]. Mental factors are impaired. Clmt uses methodone and still drinks which exacerbates 1202. Clmt. is extremely dependant on daughter. [illegible] DAA." (R. 132). DAA is an abbreviation for Drug Alcohol Abuse.

Plaintiff was approved for benefits based on a primary diagnosis of "Organic Brain Syndrome" and a secondary diagnosis of "Substance Addiction Disorder." (R. 57). The determination also stated, "DAA is material." Id. Plaintiff was informed in a letter dated May 24, 1995 that he was eligible for SSI benefits because he was "disabled" and also that "drug addiction and/or alcoholism [was] a contributing factor material to [his] disability." (R. 60). That same letter then explained that Plaintiff had to comply with certain treatment obligations, or "payments [would be] stopped." Id.

II. Denial of Benefits Effective January 1, 1997

Sometime during mid-1996, Plaintiff was notified that his benefits were to be terminated on January 1, 1997, pursuant to a change in the law, 42 U.S.C. § 423(d)(2)(C). That law, the Contract with America Advancement Act of 1996, was enacted on March 29, 1996 and ended benefits in cases where "alcoholism or drug addiction would . be a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 1382c(3)(j).

Plaintiff disagreed with the determination to stop his benefits effective January 1, 1997 and claimed to be "disabled without considering drug addiction or alcoholism." (R. 63).

The October 1996 Medical, Psychological, and Psychiatric Examinations

On October 8, 1996, Plaintiff saw Dr. Raul A. Guevara, M.D. for a twenty-five minute Internal Medicine Evaluation for the Bureau of Disability Determination Services. (R. 143-149). Dr. Guevara noted that Plaintiff alleged disability due to a history of lower back pain. (R. 143). According to Dr. Guevara, Plaintiff gave the following description of his pain:

.low back pain for approximately eight to twelve years. He complains of intermittent, sharp, shooting pain to the left buttock, radiating to the posterior thigh and just below the knee. Associated with this, is a "Charlie Horse" sensation and his legs occasionally giving way. He denies any urinary incontinence. . Currently, he complains of low back pain when walking approximately one block, or standing in line for about five or six minutes. Also, when sitting upright for five or six minutes, the pain would become more severe, during which time he would have to sit on his right or left buttock to relieve the symptoms.

Id. Dr. Guevara further noted that Plaintiff had "a history of hypertension" for which "he used to be on medication. but is not . at the present time." (R. 144). He indicated that Plaintiff "has been smoking two packs of cigarettes per day for approximately thirty-five years," has a thirty-five year history of daily alcohol intake (about "one to two quarts per day" of "usually wine"), and has been "shooting heroin for the past thirty-five years; about four times a week." Id. Dr. Guevara noted that Plaintiff reported last drinking "a pint of wine" and using "one bag of heroin" the morning of the exam. Id. Plaintiff's blood pressure at the exam was 140/80, and his breathing was "unlabored." Id. Dr. Guevara noted no abnormalities or problems with the Plaintiff's skin, head, eyes, vision, ears, nose, throat, neck, lungs, heart, abdomen, extremities, peripheral pulses, manual dexterity, neurological, reflexes, and sensory exam. (R. 145-146). With respect to Plaintiff's back, Dr. Guevara indicated that there was "[n]o deformity" in Plaintiff's "cervical, thoracic, or lumbar spine," "no limitation of motion of any spinal segment," and "no thoracic or lumbosacral paraspinal muscle tenderness or spasm." (R. 145). Additionally, in regards to Plaintiff's range of motion, Dr. Guevara stated that Plaintiff had "no joint deformities, with full range of motion of the proximal and distal joints of the upper and lower extremities," and "no bone; joint, or muscle tenderness noted." (R. 146).

Dr. Guevara concluded, in regards to Plaintiff's alleged low back pain, that the examination "revealed no evidence of a lumbosacral radiculopathy." (R. 147). He noted that Plaintiff had a normal range of motion. (R. 149). Dr. Guevara then noted two other problems: "peripheral neurophathy; probably secondary to alcohol" and "history of alcohol and heroin dependence." (R. 147). He concluded his report by noting that "[a]t the end of the examination, the claimant was asked if all medical complaints were addressed today, and the claimant responded affirmatively." Id.

That same day (October 8, 1996), Plaintiff saw Psychologist Dr. Robert Casas, Ph.D. for a 65-minute appointment. (R. 150-153). Dr. Casas administered the Wechsler Adult Intelligence scale to Plaintiff. (R. 150). He received a verbal score of 69, performance score of 67, and a full scale score of 67-which would indicate that the Plaintiff functions within the mild range of mental retardation. (R. 150, 152). However, Dr. Casas explained that "the current test scores should not be considered reliable or valid," because Plaintiff appeared to "attempt[] to minimize his overall intellectual capacity," and because "he drank a significant amount of alcohol" and "used heroin . prior to the evaluation." (R. 152).

Dr. Casas noted that Plaintiff "appeared to have little motivation to respond to the limits of his ability during this evaluation." (R. 150) Furthermore,

[Plaintiff] was observed initially to ambulate with a slow, deliberate, slightly hunched over gait when he first entered [Dr. Casas'] examining room. However, at the end of the 65-minute interview during which he sat, he arose and walked with a much more limber and fluid gait from [the] office.

Id. Dr. Casas also made the following observations:

[Plaintiff] gave many nearly correct responses which is often found in individuals attempting to deliberate (sic.) dissimulate. He stated that his age was 55 when in fact it is 54. He correctly identified his birth date. He stated that the date was the 7th when in fact it was the 8th. He stated that the month was November when in fact it was October. He identified the year as 1995 though it is in fact 1996. He correctly identified the day of the week. He correctly identified the general time of day. When asked to state his home address, he stated it was 600 North Kenmore. The information forwarded to me . indicates that his address is 6000 North Kenmore. Similarly he has identified his apartment number as 301 . it's 103. The claimant states that he could not recall his telephone number. .

When questioned about alcohol and drug use, the claimant stated that he had consumed approximately one-half to one pint of wine approximately three to four hours prior to the examination though he denied that he was intoxicated at the present time. No odor of alcohol was perceived.

This claimant alleges chronic poly drug and alcohol abuse. The claimant states that he has been using heroin since the age of 17 and that he uses it intranasally. He denies that he injects this drug. He describes using heroin intranasally every two to three days since the age of 17 and asserts that it is a pattern that continues up to the present time. He states that his last use of heroin was yesterday. With regard to cocaine, he asserts a similar history. He states that he uses cocaine one to two times per week and that he has done so since age 17. In terms of his alcohol use, he states that it began as a "teenager", and that he drinks "every day". He states that he will drink one or more bottles of wine on a daily basis.

(R. 150-151).

The following day, on October 9, 1996, Plaintiff saw Dr. Christel Lembke, M.D. for a fifty-five minute Psychiatric Evaluation for the Bureau of Disability Determination Services. (R. 154-157). Dr. Lembke described Plaintiff as "reluctantly cooperative." (R. 154). She noted that "[w]hat was of diagnostic importance, however, was that most of his answers were almost correct." Id. She also noted that Plaintiff reported that he had "been a heroin and occasional cocaine user most of his life," that he dropped out of a Methodone program in 1995, and that "his average daily use is three to four bags of heroin every two or three days and a bottle or two of wine." Id. Dr. Lembke concluded that Plaintiff had a "history of alcohol, cocaine and heroin abuse and probable dependence." (R. 156).

An RFC assessment was once again done for Plaintiff based on all medical records. (R. 158-165). This was done by Jose Gonzalez, M.D. on October 24, 1996. (R. 165). Dr. Gonzalez concluded that there were "[n]o functional physical impairments affecting work related activities." (R. 158). He did not make any entries in any portion of the assessment about any limitations to be placed on Plaintiff. Dr. Gonzalez noted Plaintiff's complaints about lower back pain and referred back to Dr. Guevara's findings from earlier that month that Plaintiff experienced a normal range of motion in his joints, was able to walk on heels and toes, and had a normal gait. (R. 165).

In contrast with Dr. Bianchin's April 12, 1995 RFC assessment from a year and a half earlier (R. 122-129), Dr. Gonzalez made no mention to the 1995 x-rays, which showed advanced degenerative disk changes and spondylolisthesis. (R. 124, 128, 165).

Also in late October 1996, Dr. David Brister, Ph.D. reviewed the record and filled out a mental RFC assessment. (R. 166-169; 170-178). Dr. Brister concluded that Plaintiff's substance abuse rendered him incapable of performing "even [a] simple job adequately for full time [illegible] employment," that "with abstinence, there would appear to be no remaining psychopathy to impair his ability to do SGA [substantial gainful activity]," and that "DAA is material." (R. 168).

III. The Hearing Before the Disability Hearing Officer

A hearing was held on November 22, 1996. (R. 64, 71). The disability hearing officer summarized ...


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