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John Baird v. Michael Astrue

February 3, 2011

JOHN BAIRD, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, MAGISTRATE JUDGE SUSAN E. COX DEFENDANT.



The opinion of the court was delivered by: Susan E. CoxU.S. Magistrate Judge

MEMORANDUM OPINION AND ORDER Plaintiff, John Baird, DDS, ("plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("the Commissioner") denying his application for Social Security Disability Insurance Benefits ("DIB"). Plaintiff filed a Motion for Summary Judgment and seeks a judgment reversing or remanding the Commissioner's final decision [dkt. 14]. For the reasons set forth below, plaintiff's motion is granted and this case is remanded for further proceedings.

I. Procedural History

Plaintiff filed an application for DIB on April 9, 2004, for a period of disability beginning November 1, 2002.*fn1 Plaintiff, a former oral and maxillofacial surgeon, alleged disability because of bipolar disorder and, as a result, "inability to perform surgical and anesthesia procedures."*fn2 His

claim was denied initially and on reconsideration.*fn3 A request for an Administrative Law Judge ("ALJ") hearing was timely filed on November 6, 2004.*fn4 ALJ Edward Pappert held a hearing on January 17, 2006, in Evanston, IL.*fn5 Plaintiff, as well as a vocational expert, appeared and testified at the hearing.*fn6 In his April 28, 2006, decision, the ALJ found that plaintiff was still functionally capable of performing jobs that existed in significant numbers in the national economy.*fn7 As a result, the ALJ concluded that plaintiff was not disabled within the meaning of the Social Security Act and not entitled to DIB.*fn8

Plaintiff then filed a Request for Review.*fn9 On November 17, 2006, upon finding several errors with the ALJ's decision, the Appeals Council remanded the case for further proceedings.*fn10 The second hearing before ALJ Pappert was held on March 27, 2007.*fn11 Plaintiff, a medical expert, as well as a vocational expert appeared and testified at that hearing.*fn12 In his October 22, 2007, decision, the ALJ found that plaintiff was "capable of making a successful adjustment to other work that exists in significant numbers in the national economy."*fn13 For this reason, the ALJ again concluded that plaintiff was not disabled and not entitled to DIB.*fn14

Next, plaintiff timely filed a request for review of the second decision of the ALJ.*fn15 This request was denied on July 14, 2009 because the Appeals Council "found no reason" to review the ALJ's decision.*fn16 Therefore, the second ALJ's decision was the final decision of the Commissioner.

On September 16, 2009, plaintiff filed this action for a judicial review of the final decision of the Commissioner. The Commissioner answered the complaint on December 7, 2009. Plaintiff subsequently filed a motion for summary judgment seeking a reversal or remand of the Commissioner's final decision based on purported errors with the ALJ's second decision. In his motion, plaintiff argues that reversal of the Commissioner's decision is warranted because the ALJ failed to properly: (1) analyze the opinion of plaintiff's treating psychiatrist; (2) explain why plaintiff was found to be "not entirely credible;" (3) analyze evidence relating to plaintiff's work limitations, and; (4) resolve conflicts between the vocational expert's testimony and the Dictionary of Occupational Titles ("DOT").*fn17

In response, the Commissioner initially filed a motion to remand acknowledging that the vocational expert's testimony was unclear as to how many jobs plaintiff could perform. Plaintiff opposed the motion to remand because it did not address several other arguments raised in his motion for summary judgment. We denied the Commissioner's motion to remand and his subsequent motion to reconsider. Adopting the reasoning of Gaspari v. Astrue,*fn18 we held that "from the standpoint of judicial economy, it would seem to make more sense to consider all of the issues raised before deciding whether remand is appropriate," and that plaintiff was "entitled 'to judicial review of the entirety of the ALJ's decision, not just those aspects the Commissioner chooses to emphasize.'"*fn19 The Commissioner subsequently filed a response to plaintiff's motion for summary judgment addressing all of the issues raised by plaintiff.

II. Factual Background

The facts set forth in this section are derived from the administrative record. They provide a review of plaintiff's background, which reflects the reasons he applied for disability. The section also provides an overview of plaintiff's psychiatric and other medical problems.

A. Plaintiff's Current Condition

Plaintiff was born on March 11, 1942, making him sixty-five years old on the date of the second and final ALJ decision.*fn20 At the time of the first hearing before the ALJ, plaintiff was married and lived together with his wife and her two daughters, who were twelve and eighteen years old.*fn21

Plaintiff was employed as an oral and maxillofacial surgeon since 1968.*fn22 However, he had not worked since November of 2002 because of bipolar disorder and his "inability to perform surgical and anesthesia procedures."*fn23

The record revealed that plaintiff's average day consisted of spending a certain percentage of the time on the computer, watching TV or rental movies and reading novels.*fn24 Although he was able to care for himself, plaintiff had a live-in housekeeper who assisted him with housework and meal preparation.*fn25 As needed, plaintiff performed minor and minimal repairs around the house.*fn26 He had a driver's license and was able to drive.*fn27 He was able to leave home alone, when necessary, to do errands and keep appointments.*fn28 He had lunch with friends on occasion, specifically he testified to going out about every two weeks.*fn29 However, he complained that he lost some interest in reading, fixing things, social activities and his hobbies in "boats" and "computers."*fn30

B. Plaintiff's Psychiatric Problems

Plaintiff was diagnosed with bipolar disorder in December 1989.*fn31 Since 1996, he had been in consistent psychotherapy treatment with Elizabeth V. De Sa Pereira, M.D., a psychiatrist.*fn32

Plaintiff was prescribed 1200 milligrams of Lithium a day, fifty milligrams of Seroquel in the evening, two milligrams of Clonazepam a day, and 0.112 milligrams of Synthroid a day.*fn33

Dr. De Sa Pereira's medical records, which were made part of the record, reflected the treatments plaintiff had received and the history of his illness.*fn34 In evaluating plaintiff's impairment, Dr. De Sa Pereira prepared a Mental Disorder Report for Disability Determination Services on July 26, 2004 ("Mental Disorder Report").*fn35 In her Mental Disorder Report, she described plaintiff as easily irritated, angered, and frustrated with little or no tolerance.*fn36 She stated that plaintiff's disorder restricted his daily activities because he was not able to do small tasks, including tasks that he was capable of doing in the past.*fn37 Dr. De Sa Pereira opined that plaintiff's failure to complete tasks resulted from his disorder and impacted his ability to sustain concentration and attention.*fn38 She further opined that plaintiff was not able to function in a competitive work setting on an eight-hour per day, five days per week basis.*fn39 She noted that plaintiff was tired at times and experienced GI problems as side effects from prescribed medications.*fn40 However, Dr. De Sa Pereira also stated in her report that with treatment plaintiff's mood and irritability had improved and that plaintiff lived alone with limited support.*fn41

Also include in her Mental Disorder Report, Dr. De Sa Pereira evaluated symptoms and signs of depressive, manic, and bipolar syndromes.*fn42 She indicated that plaintiff had "difficulty concentrating or thinking," "psychomotor agitation or retardation," "inflated self-esteem" and, in the past, he was involved in "activities with high probability of painful consequences which were not recognized."*fn43 With regard to functional limitations related to affective disorder, she indicated that plaintiff had "marked restriction of activities of daily living" and "marked difficulties in maintaining concentration, persistence or pace."*fn44 She also put a checkmark next to the question regarding whether plaintiff had "a medically documented history of a chronic affective disorder of at least two years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support," and "a residual disease process resulting in marginal adjustment that even a small increase in mental demands or change in environment would be predicted to cause decompensation."*fn45

Plaintiff's mental condition was also evaluated by State Disability Determination Services.*fn46

On a mental status exam performed by Jarrold Heinrich, Ph.D., and reviewed by Carl A. Hermsmeyer, Ph.D, a psychiatrist, it was determined that plaintiff's cognitive functioning was fully intact; he was able to complete all essential activities independently; he could understand, remember, and execute detailed instructions; he was able to concentrate and persist adequately on tasks within an organized work setting; he could adjust to routine changes in his environment as long as they were not too frequent; and he had adequate social skills.*fn47 However, plaintiff lacked the emotional temperament to "maintain harmonious interactions with others" and, as a result, he needed a "job that did not require frequent interactions with others."*fn48 The report concluded that plaintiff retained the mental and behavioral capacity to do detailed tasks within the limitations noted.*fn49

C. Plaintiff's Other Medical Problems

The administrative record includes medical records that also disclose that plaintiff has had a history of diverticulosis, internal hemorrhoids, and hypothyroidism.*fn50 Plaintiff had been a smoker and his pulmonary function test revealed that his lungs showed an age of 114 years.*fn51 His spirometry report showed mild obstructions, and a chest x-ray showed "hyperinflation bilaterally, negative for focal consolidation," and "mild linear scarring and/or subsegmental atelectasis in the right upper lobe."*fn52 An open MRI of the brain, which plaintiff underwent for evaluation of confusion, was normal with "no mass lesions or areas of pathologic contrast enhancement."*fn53

III. Administrative Proceedings

This section outlines the proceedings at the two administrative hearings held in this case.

The first hearing was held before the ALJ on January 17, 2006. After the ALJ issued an unfavorable decision, plaintiff filed a request for review. The Appeals Council remanded, finding errors with the ALJ's decision. Accordingly, there was a second hearing before the ALJ on March 27, 2007.

A. The ALJ Hearing held on January 17, 2006

The first hearing before ALJ Pappert was held on January 17, 2006, in Evanston, IL.*fn54

Plaintiff, represented by an attorney, Jim P. Brown, appeared and testified at the hearing.*fn55 A vocational expert, Christopher Yep, also appeared and testified at the hearing.*fn56 The ALJ issued his decision on April 28, 2006.The subsections below provide a review of the testimonies of plaintiff and Mr. Yep, as well as the ALJ's April 28, 2006, decision.

1. Testimony of Plaintiff

After several background questions, the ALJ asked plaintiff to explain the primary reason he could not return to his work as an oral surgeon, and to explain difficulties and limitations that prevented him from performing work as an oral surgeon.*fn57 Plaintiff testified that in 2002 he found it more and more difficult to complete surgical procedures and to administer the outpatient anesthetics.*fn58 Although, he had no "ill results" in performing the procedures, he reached a point toward the end of 2002 where he got so frustrated that he would have to stop the procedure, take a break and come back to it to finish.*fn59 While he had difficulties completing the procedures, he was always able to complete them.*fn60 Plaintiff was frustrated that the same surgical technique applied to the same problem did not always produce the result he expected, that he felt he was "on the edge of possibly causing some collateral damage."*fn61 Plaintiff's employees then started to monitor him per his business partner's request .*fn62 Plaintiff testified that he was in denial at that point and did not admit or accept anything.*fn63 Later, plaintiff's business partner became involved and eventually convinced plaintiff to take some time off.*fn64 Plaintiff did not return to work after taking this break.*fn65

Plaintiff testified that the same type of situation happened with non-surgical activities, such as household projects.*fn66 Although he had done some projects many times before, they had become very difficult for him to get done.*fn67 In trying to perform other projects plaintiff would get so aggravated that things were not responding to his approach that he would "want to slam thing[s] on the floor."*fn68 Plaintiff also believed that the final results of some of his projects were not of the same quality they would have been ten years previous.*fn69
The ALJ asked plaintiff how he spent his time.*fn70 Plaintiff testified that he spent a certain percentage of his time on the computer, watched TV or rental movies and read novels.*fn71 The ALJ then asked plaintiff whether his condition remained the same or whether it had gotten a little better or worse since he stopped working.*fn72 Plaintiff testified that he had difficulty getting adjusted to medications.*fn73 However, he did not feel out of control or "raging" since his treating psychiatrist found the right combination of medications.*fn74 The medications kept him stable as the peaks of highs and lows had been removed.*fn75 Plaintiff also testified that even before his condition was stabilized with medications, he never expressed any aggressive behavior or violence, he always kept it inside.*fn76

The ALJ asked plaintiff if he had "any other physical ailments or difficulties" of which the ALJ was not aware from the record.*fn77 Plaintiff responded "no" and added that he was "fortunately healthy."*fn78 Plaintiff was also not aware of any adverse side effects from the medications he was taking.*fn79

Next, the ALJ explained that finding plaintiff disabled required not only finding that plaintiff was unable to perform his past work, but also that plaintiff was unable to perform any work that existed in "any significant numbers in any regional economy in our society."*fn80 Such work, in plaintiff's case, would be "simple, unskilled work at even the medium level of exertion."*fn81

Accordingly, the hearing turned to the issue of what plaintiff felt would prevent him from performing simple, unskilled work.*fn82

The ALJ asked plaintiff whether he believed he would be unable to work as a result of disagreements with co-workers or supervisors.*fn83 Plaintiff responded that his "inability to work with people" might prevent him from performing simple, unskilled work.*fn84 He added that changes in his personality, which had caused him to become argumentative and hyper critical of others, might hurt his work relationships.*fn85 As an example, plaintiff testified that he used to have twenty to ...


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