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Fischer v. Astrue

July 1, 2010


The opinion of the court was delivered by: Charles H. Evans, U.S. Magistrate Judge


Plaintiff Jo Ann Fischer (Fischer) appeals from a final decision of the Social Security Administration (SSA) denying her application for Disability Insurance Benefits (DIB) and Supplemental Social Security Income (SSI) under Chapters II and XVI of the Social Security Act, 42 U.S.C. §§ 416, 423, and 1381a. Fischer brings this appeal pursuant to 42 U.S.C. § 405(g). The parties have consented to a determination of this case by the United States Magistrate Judge, under 28 U.S.C. § 636. Consent to Proceed Before a United States Magistrate (d/e 7). Pursuant to Local Rule 8.1(D), Fischer has filed a Brief in Support of Complaint (d/e 12), which the Court construes as a motion for summary judgment. The Commissioner has filed a Motion for Summary Affirmance (d/e 13) and Commissioner's Memorandum in Support of Motion for Summary Affirmance (d/e 14).

For the reasons set forth below, the Court determines that the SSA's decision is supported by the law and the evidence. Plaintiff's motion for summary judgment is DENIED. The Commissioner's Motion for Summary Affirmance is GRANTED, and the decision of the Commissioner is AFFIRMED.


Judicial review of the Commissioner's final determination of disability is limited, and the Commissioner's findings of fact are treated as conclusive as long as they are supported by substantial evidence. 42 U.S.C. § 405(g); Halbrook v. Chater, 925 F. Supp. 563, 571 (N.D. Ill. 1996). "Substantial evidence" means evidence that "a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); Powers v. Apfel, 207 F.3d 431, 434 (7th Cir. 2000). On review, courts may not reevaluate evidence, make new factual determinations, or substitute their judgment for that of the Commissioner. Powers, 207 F.3d at 434-35.

Nonetheless, the court must look to the record as a whole to determine if there is "substantial evidence" supporting for the ALJ's decision. Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985). An ALJ's opinion need not evaluate "every piece of testimony and evidence submitted." Zalewski v. Heckler, 760 F.2d 160, 166 (7th Cir. 1985). All that is required is that the ALJ "considered the important evidence" in the opinion, thus allowing the courts to "trace the path of the ALJ's reasoning." Stephens, 766 F.2d at 287.

In determining whether an individual is disabled for Social Security purposes, the ALJ must use the five-step sequence outlined in 20 C.F.R. § 404.1520(a). Each step must be satisfied before moving on to the next step. First, the ALJ determines if the claimant engages in "substantial gainful activity," (SGA) defined as work that involves significant physical or mental activities, usually done for pay or profit. 20 C.F.R. § 416.920(b). If the claimant is not involved in SGA, step two requires the ALJ to decide whether the claimant has a medically determinable impairment that is "severe," or a combination of impairments that, taken together, are "severe."

20 C.F.R. § 416.920(c). Severity is measured by whether an impairment significantly limits an individual's ability to perform basic work activities.

20 C.F.R. § 416.921; SSRs 85-28, 96-3p, 96-4p. If such an impairment is found, the ALJ proceeds to step three.

In step three, the ALJ evaluates whether the claimant's impairment meets criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. If the ALJ decides in the affirmative, the claimant is disabled. If the claimant's condition is not equivalent to a Listing, the ALJ moves on to step four. Step four requires the ALJ to determine the claimant's residual functional capacity (RFC). The ALJ considers all impairments, not just those found to be severe under step two. 20 C.F.R. § 416.945. The ALJ then determines whether the claimant has the RFC to perform past relevant work.

If the claimant is not able to perform past relevant work, the ALJ moves to step five, where she evaluates whether the claimant is capable of performing other work. 20 C.F.R. § 416.920(g). The ALJ takes into consideration the claimant's RFC, age, education, and work experience. At this juncture, the SSA is responsible for producing evidence that demonstrates that there is work suitable for the claimant in the national economy. 20 C.F.R. §§ 416.912(g), 416.960(c). If the ALJ determines that there is other work available to the claimant, the claimant is not disabled for purposes of SSI or DIB.



Plaintiff is fifty-six-year-old woman who lives with her mother in Bushnell, Illinois. Answer (d/e 10), Exs. 1-14, Social Security Transcript (Tr.) at 29-30. She is five feet, four inches tall and weighs 146 pounds. Plaintiff graduated from high school and completed two years of college courses. In 1972, Plaintiff joined the U.S. Army and completed basic training before she became "disillusioned with the beliefs, the concepts" of the U.S. Army, requested relief from duty, and was honorably discharged. Tr. at 44, 64. She is divorced from her only marriage and communicates infrequently with her only child, a son. Tr. at 43, 65.

Plaintiff has struggled with mental disorders, alcoholism, and illegal drug use since the 1970s. Plaintiff began using marijuana, crack cocaine, and alcohol in her late teens and early twenties. Tr. at 345. She also has a history of using heroin, downers, uppers, and hallucinogens. Tr. at 355. Plaintiff is an alcoholic, as was her father, and has been in seven different residential treatment programs for alcoholism. Tr. at 345. Plaintiff's longest period of abstinence from alcohol was four and one-half years and began in May 2000, after she completed a residential treatment program. Tr. at 345.

In 1976, Plaintiff was hospitalized for several days at Missouri State Hospital in St. Joseph, Missouri, after she tried to commit suicide by overdosing on pills and driving her truck off of a bridge. Plaintiff has tried to commit suicide on several other occasions. She was hospitalized at Blessing Hospital in Quincy, Illinois, on January 19, 2006, for suicidal ideation. Tr. at 414. Consultation notes indicate that Plaintiff felt depressed and had mood swings and daily auditory hallucinations. The voices told Plaintiff to hurt her mother. Tr. at 414. Plaintiff had been drinking before she was admitted to the hospital, and was not discharged from the hospital until January 30, 2006. Tr. at 414. Then, in February 2006, she was admitted again to Blessing with suicidal thoughts. Plaintiff was admitted on February 12, 2006, and discharged on February 20, 2006. Tr. at 408. She was described as being depressed and anxious, and reported feeling worthless and having auditory and visual hallucinations. Tr. at 336.

In late February 2006, Plaintiff began outpatient alcohol abuse treatment at Great River Recovery Resources in Quincy, Illinois. Her counselor diagnosed her with alcohol dependence, cocaine dependence (in remission), and major depressive disorder with psychotic features. Plaintiff was assessed a Global Assessment of Functioning (GAF) score of 55.*fn1 Plaintiff also engaged mental health treatment services at Transitions of Western Illinois. Her counselors noted her willingness to engage in therapy and make changes, and to take advantage of the services offered to her. Tr. at 366. A progress note by Dr. Valentina Vrtikapa from March 2006 indicated that Plaintiff was compliant with her medication regimen and that her behavior and functioning were fair. Tr. at 368.

On May 10, 2006, Dr. Frank Froman from Psychology Associates in Quincy, Illinois, evaluated Plaintiff on behalf of the state agency. Dr. Froman noted that Plaintiff's affect and mood were unremarkable, and that she made good eye contact. Dr. Froman recounted Plaintiff's history of alcohol dependence, polysubstance abuse, and major depressive disorder. However, he stated that there was no evidence of a major depressive disorder at the time of his evaluation. Tr. at 375. Dr. Froman assigned Plaintiff a GAF of 60, and indicated that she worked twenty-five hours per week at K-Mart and was capable of engaging in and maintaining competitive employment. Tr. at 375. A psychiatric review technique performed by the state agency in May 2006 revealed that Plaintiff's condition, after treatment for alcohol dependence and mental health issues, was "nonsevere." Tr. at 388. In June 2006, Plaintiff stopped attending her alcohol dependence therapy sessions at Great River Recovery Resources. Tr. at 402. Plaintiff was sober until July 2006, at which point she also stopped taking her medications. Tr. at 427.

On February 1, 2007, Plaintiff returned to Blessing Hospital, having suicidal thoughts and hearing voices. Tr. at 427. She was discharged on February 6, 2007. Dr. Vrtikapa assigned Plaintiff a GAF score of more than 50, and noted that Plaintiff was not suicidal, had no "abnormalities of thought content or thought processes," and that her depression had improved due to administration of medication. Tr. at 427. Plaintiff was diagnosed with recurrent major depressive disorder with psychotic features, alcohol dependence, and a personality disorder.

Plaintiff began going to North Central Behavioral Health System for treatment on February 20, 2007. Tr. at 481. Pam Helms, a licensed clinical professional counselor, noted that Plaintiff had a history of depression and alcohol abuse, and that she often heard voices. Tr. at 483. Dr. Scott Wright performed a psychiatric evaluation of Plaintiff and diagnosed her with bipolar affective disorder, episodic alcohol dependence, episodic cocaine dependence, and borderline personality disorder. Dr. Wright assigned Plaintiff a GAF score of greater than 50. Tr. at 488-89.

Plaintiff was admitted to the emergency room at McDonough District Hospital in Macomb, Illinois, on March 7, 2007, claiming that she had symptoms of delirium tremens (DT). Tr. at 449. She returned again on March 28, 2007. Plaintiff expressed suicidal thoughts and had a blood alcohol content of .32. Tr. at 438. Plaintiff was evaluated on March 29, 2007, and described as having poor judgment and an unkempt appearance. The evaluator noted that although Plaintiff was depressed, "her primary issue is alcoholism, not mental health." Tr. at 445. Helms evaluated Plaintiff again on April 10, 2007, noting Plaintiff's depression, anxiety, and alcohol dependence. Tr. at 601. Plaintiff heard voices and told Helms that she would become physically ill if she had to be around other people. Tr. at 603.

Dr. David Biscardi evaluated Plaintiff on behalf of the state agency on May 21, 2007. Tr. at 617. He found that Plaintiff met Listing 12.09, which governs substance addiction disorders. Under Listing 12.04 for affective disorders, he found that Plaintiff had major depression that did not precisely satisfy the diagnostic criteria. Tr. at 620. Dr. Biscardi determined that Plaintiff's alcoholism markedly limited her activities of daily living, maintenance of social functioning, and maintenance of concentration, persistence, and pace. Tr. at 627. He also found that she had experienced one or two episodes of decompensation due to her alcoholism. Dr. Biscardi concluded that when Plaintiff did not drink alcohol and was compliant with her medication regimen, she functioned fairly well. Tr. at 629.

On June 28, 2007, Plaintiff began treatment with Dr. Brad Hughes. She was diagnosed with schizophrenic affective disorder and alcohol dependence, and assigned a GAF score of 45. Throughout July, Plaintiff continued to describe her symptoms of depression and anxiety as relatively severe. Tr. at 745. From July through September, Dr. Hughes made notes of Plaintiff's symptoms, which seemed to be improving, despite continuing feelings of sadness and anxiety. He consistently gave her GAF scores of 50, and indicated that she had generally refrained from using alcohol. Tr. at 749, 748, 751.

On October 4, 2007, Plaintiff appeared to not be doing well, and expressed feelings of sadness and anxiety. However, Dr. Hughes gave her a GAF score of 50. Tr. at 747. On October 18, 2007, Dr. Hughes evaluated Plaintiff and noted that she was able to go out in public, no longer had paranoid thoughts, and that her hallucinations had subsided. Tr. at 746. He assigned her a GAF score of 50. Also in October 2007, Dr. Hughes completed a Medical Source Statement (MSS) for Plaintiff's claim before the SSA. He concluded that she had marked impairments in her ability to understand and remember complex instructions, carry out complex instructions, and make judgments on complex work-related decisions. Tr. at 727. Dr. Hughes wrote that Plaintiff had marked restrictions in interacting appropriately with the public and responding appropriately to usual work situations due to her paranoia. Tr. at 728. He noted that her judgment was poor during periods of mania, and found that substance abuse did not appear to play a role in her symptoms. Tr. at 728.

On November 6, 2007, Plaintiff sought treatment at North Central Behavioral Health Systems. The intake counselor observed that she had a history of depression, anxiety, and alcohol addiction. Tr. at 796. By January 2008, Plaintiff's counselors observed that she was not attending her therapy sessions and was self-medicating with alcohol. Tr. at 799. On January 17, 2008, Plaintiff complained of hearing voices and feeling sad.

She also stated that her medications did not seem to be working. Tr. at 804.

Plaintiff experienced a set back in February 2008, when she was admitted to the emergency room and described as being intoxicated and expressing suicidal thoughts. Tr. at 759-60. Dr. Vrtikapa saw Plaintiff after she was admitted to Blessing Hospital, and noted that Plaintiff's chief complaint was "I stopped taking my medications and I tried to kill myself." Tr. at 772. Plaintiff admitted that she had starting consuming alcohol again over the past several months, and that her depression was getting worse and worse. Tr. at 772. Plaintiff claimed to hear voices. Dr. Vrtikapa assigned her a GAF of more than 30 at the time of admission, but gave her a score of more than 50 upon discharge. Tr. at 773, 775.

Dr. Wright evaluated Plaintiff on March 5, 2008. He gave her a GAF of greater than 50, and recounted her history of depression and substance abuse. Tr. at 830-31. He diagnosed her with bipolar affective disorder, continuous alcohol dependence, and cocaine dependence (in remission). Tr. at 831. On April 15, 2008, counselors at North Central observed that Plaintiff did well when in therapy, but continued to feel anxious around other people. Tr. at 823. However, Plaintiff was still drinking alcohol. In May 2008, Plaintiff expressed willingness and a desire to continue her therapy sessions, and apologized for continuing to self-medicate with alcohol. Tr. at 838. At the end of June 2008, Plaintiff had started drinking again and ...

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