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Nadine M. Stramaglio v. Michael J. Astrue

March 28, 2011


The opinion of the court was delivered by: Magistrate Judge P. Michael Mahoney


I. Introduction

Nadine Stramaglio seeks judicial review of the Social Security Administration Commissioner's decision to deny her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Title II of the Social Security Act. See 42 U.S.C. § 405(g). This matter is before the magistrate judge pursuant to the consent of both parties, filed on June 19, 2009. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

Claimant first filed for DIB and SSI on or about November 17, 2005. (Tr. 53, 110.) She alleged a disability onset date of May 1, 2004. (Tr. 114, 540.) This was later amended at Claimant's hearing to allege an onset date of October 1, 2006. (Tr. 53.) Her claim was denied initially and on reconsideration. (Tr. 1, 46-49.) The Administrative Law Judge ("ALJ") conducted hearings into Claimant's application for benefits on December 12, 2007 (Tr. 9.) At the hearing, Claimant was represented by counsel, Steven McCarty, and testified. (Tr. 33--45.)

Susan Entenberg, a Vocational Expert (hereinafter referred to as "VE"), was also present and testified. (Tr. 32--45.) The ALJ issued a written decision denying Claimant's application on February 26, 2008, finding that Claimant was not disabled because there were jobs that exist in significant numbers in the national economy that the claimant can perform. (Tr. 63--64.) Because the Appeals Council denied Claimant's Request for Review regarding the ALJ's decision, that decision constitutes the final decision of the Commissioner. (Tr. 1--3.)

III. Background

According to testimony, Claimant was 40 years old at the time of her hearing. (Tr. 16.) She lives with her two teenage sons. (Tr. 27.) She completed schooling through the eleventh grade. (Tr. 16.)

Claimant testified that she was feeling very down and depressed in the weeks leading up to her hearing. (Tr. 18.) She is not good at concentrating, but was able to drive herself to the hearing. (Tr. 22.) She did not feel she would be able to do any type of job because she would begin to feel down or start having a panic attack and would not go in to work. (Tr. 19.) Her doctor wanted her in an inpatient program, but because she has to take care of her kids she was in an outpatient program at the hospital. (Tr. 19.) She was seeing a psychologist, Dr. Anwar, who proscribed her approximately five medications, including Xanax, Adderall, a Prozac-like medication, and a mood stabilizer. (20-21.) Claimant indicated that her doctors were leaning toward diagnosing her with bipolar symptoms, and she was put on Klonopin as a result. (Tr. 25.) She also stated that she has panic attacks three times a week, and they are brought on by driving or trying to get things accomplished. (Tr. 27--28.) When she has a panic attack, she's okay once she takes Xanax, but feels down again when it wears off. (Tr. 28.) From the point she senses a panic attack coming on to the time she can return to what she was doing lasts more than thirty minutes. (Tr. 29.) She had been having this pattern for three years prior to her hearing, and testified that it had gotten worse in the last couple years. (Tr. 29.)

Her daily activities include sleeping a lot and doing basic household chores like dishes or picking up the house. (Tr. 23.) Doing the basic chores causes her to get tired very easily, and on bad days she just takes medication and sleeps. (Tr. 23.) She attends her outpatient program for six hours a day during the week and usually receives rides to and from the hospital. (Tr. 24.) Though her sons are 15 and 14 years old, her oldest still needs supervision because of his ADD. (Tr. 27.) She did not attend any of her sons' parent/teacher conferences in the past year and rarely attended any of her sons' football games. (Tr. 28.) Some days she isolates herself, and she needs to talk to someone on the phone. (Tr. 29.) She does not like to go grocery shopping and has a hard time keeping appointments. (Tr. 32.) She has not been able to maintain a relationship with anyone other than family, and she had not really talked to her family for about two years. (Tr. 32.) Even her children did not know she was in an outpatient program. (Tr. 32.)

Claimant could not recall exactly when she worked at several of her jobs in the past. (Tr. 22.) The ALJ had documents, including earnings and medical records, indicating that Claimant worked a waitress job in 2007, but Claimant denied working this job. (Tr. 12--14, 16--18, 32--33.) Claimant offered as an explanation for the 2007 employment records that she had problems with identity theft in the past. (Tr. 25.) She stated that she thought she worked as a receptionist for an attorney's office in 2005, though her counsel indicated it was in 2006, and that she was fired after the attorney learned what types of medications she was taking. (Tr. 22, 33.) She would work from the morning until about 1:00 or 2:00 in the afternoon, depending on what the firm needed. (Tr. 33.) Claimant stated that she would have a hard time recalling any information about the eight to ten different jobs listed in her records beginning in 2007. (Tr. 36.) She stated that she remembered the most about a job as an assistant to one of the bosses at a door and hardware company that she worked in 2002 and 2003. (Tr. 36--37.) At the assistant job, she would enter things into the computer, do some filing, answer phones, and search the newspaper for places that were looking to have construction done. (Tr. 37.) She also testified that she worked with BFI Waste Management making collections calls, for ComEd reading electricity meters, and at Public Aide as an office assistant, (Tr. 37--39.)

The VE testified that most of Claimant's past work was office-type work that can be categorized as sedentary, semi-skilled. (Tr. 40.) The meter reader job was light, semi-skilled. (Tr. 40.) The waitressing job would have been light and at the low end of semi-skilled. (Tr. 40.) All but the meter reading job would have required communication with others. (Tr. 40.) The ALJ presented the VE with a hypothetical individual with the following limitations: moderate limitations as far as traveling at unfamiliar places, moderate limitations as far as interacting with the public, moderate limitations as far as completing a normal workday and workweek without interruptions from psychologically based symptoms, moderate limitations in the ability to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances, maintain attention and concentration for extended periods and carry out very short and simple instructions (Tr. 41.) The VE testified that such limitations are inconsistent with competitive work. (Tr. 41.) The ALJ then posed an additional hypothetical to the VE for an individual with the following abilities: capable of at least understanding, remembering, carrying out simple instructions and appropriately adapting to routine workplace changes such that they could do work that's unskilled, routine, learnable on short demonstrations, does not involve extended contact or interaction with others. (Tr. 42.) The VE stated that such a person would be capable of working jobs such as housekeeper, dishwasher, and packer. (Tr. 42.) The VE indicated that there were approximately 22,000 light housekeeping jobs, 15,000 dishwashing jobs, and 20,000 packer jobs in the Chicago metropolitan area. (Tr. 42.) The VE testified that if anything were to interfere with an individual's ability to reliably keep a schedule, to avoid taking frequent unscheduled breaks or absences, to make few mistakes and complete tasks as assigned, or to display appropriate work behavior, that individual would be incapable of competitive work. (Tr. 43.) According to the VE, a person needs to be productive 90 percent of the time at his or her job. (Tr. 43.)

The court notes that approximately two months after Claimant's hearing, the ALJ was able to secure additional evidence concerning Claimant's work as a waitress in 2007. (Tr. 120--121, 218.) Claimant responded through counsel that she worked at an IHOP restaurant as a waitress through June or July of 2007. (Tr. 221.)

IV. Medical Evidence

Claimant's medical treatment records begin with treatment notes from Dr. Syed Anwar, M.D., dating back to October 23, 1997. (Tr. 231.) Dr. Anwar's notes reflect that he discussed Claimant's marital problems, divorce, anger, increased agitation, and trying to increase Claimant's self esteem at appointments on October 25, 1997, November 8, 1997, November 25, 1997, and December 3, 1997. (Tr. 231.) Notes from appointments between February and May of 2008 appear to indicate Claimant was feeling depressed, agitated, and upset as she went through a divorce and custody battle. (Tr. 229--30.) Notes from appointments on June 15, 1998 and November 9, 1998 are difficult to discern but contain notes that Claimant was continuing to take Prozac and had ongoing issues regarding a dispute over the custody of her children. (Tr. 241.)

Claimant did not see Dr. Anwar again until April of 2004. (Tr. 242.) Claimant had an appointment on May 27, 2004 where she complained of out of control stress and spoke of her boyfriend and children. (Tr. 243.) A Psychiatric Progress Update by Dr. Anwar from December 15, 2004 indicates that Claimant was stressed out and depressed because she had lost her job and had difficulties with her boyfriend. (Tr. 244.) Claimant was given a prescription for Adderall to help her focus, Xanax for her anxiety, and Dr. Anwar suggested she get on an antidepressant as well. (Tr. 244.) Notes from appointments on June 15, 2005 and November 10, 2005 are mostly illegible, but do contain notes as to Prozac and Adderall. (Tr. 245.) A Medication Record spanning the period from May 2004 to November 2005 indicate that Claimant was regularly given prescriptions for Adderall and Xanax, and occasionally Prozac. (Tr. 233--34.)

On April 11, 2006, John Peggau, Psy. D., performed a consultative psychological evaluation on Claimant. (Tr. 258.) Claimant described her disability as panic attacks and an inability to sleep or focus. (Tr. 258.) Claimant reported having been in occasional therapy, but had not been in therapy recently. (Tr. 258.) Dr. Peggau also reviewed a daily activities report in Claimant's record that included an interview with her best friend and noted that she had been going to a therapist for four years for depression and anxiety. (Tr. 258.) The report also noted that Claimant was fired from her last job and "always gets fired" from jobs. (Tr. 258.) She described how Claimant was developing a fear of leaving her home and how she would sometimes stay home in pajamas for two or three days at a time. (Tr. 258.)

Dr. Peggau described Claimant as having good hygiene and normal motor activity, gait, and posture. (Tr. 259.) He described her mood as euthymic and her affect as appropriate. (Tr. 259.) Claimant reported regular contact with her mother and two of her siblings. (Tr. 259.) Claimant also described her work history, which included numerous jobs that she held for various lengths of time. (Tr. 259.) Dr. Peggau noted that Claimant's typical day began around 3:00 a.m. or 4:00 a.m. with coffee and cigarettes, followed by getting her kids up and running them around, then mostly laying in bed all day. (Tr. 259.) She described how she has no other friends outside of her best friend. (Tr. 259.) Claimant stated that she does all of the laundry, grocery shopping, cooking, and cleaning. (Tr. 259.)

After conducting a number of tests and examination techniques with Claimant, Dr. Peggau diagnosed Claimant with Dysthymia and a GAF score of 80. (Tr. 260--61.) Dr. Peggau found that the Claimant was able to understand, remember, sustain concentration and persist in tasks. (Tr. 261.) He also noted that Claimant is able to interact socially and adapt to work settings. (Tr. 261.)

On April 15, 2006, Kamlesh Ramchandani, M.D., performed a consultative physical evaluation on Claimant. (Tr. 262.) Claimant described panic attacks that occurred about three times per week and led to chest pains, palpitations, shaking with rapid breath, nausea, and headache. (Tr. 262.) Claimant stated that she is able to obtain relief through medication and rest. (Tr. 262.) Dr. Ramchandani diagnosed Claimant with anxiety neurosis with depression, stress headaches, and "tobaccoism." (Tr. 263.)

In May of 2006, Joseph Cools, Ph.D., a state agency reviewing psychologist, reviewed Claimant's records and filled out a Psychiatric Review Technique form for the Social Security Administration. (Tr. 264.) Dr. Cools indicated that a Residual Functional Capacity Assessment ("RFC") was required based upon the finding that Claimant had impairments of Dysthymic Disorder, an anxiety-related disorder in the form of recurrent severe panic attacks, and/or substance addiction disorders. (Tr. 264, 266--68.) Dr. Cools then filled out a Mental RFC Assessment form for the Administration. (Tr. 271.) Dr. Cools found Claimant was not significantly limited in her ability to do the following: understand and remember very short and simple instructions; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without becoming distracted; make simple work-related decisions; ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers or peers without distracting them or exhibiting behavioral extremes; maintain socially appropriate behavior; respond appropriately to changes in the work setting; be aware of normal hazards and take appropriate precautions; and set realistic goals or make plans independently of others. (Tr. 271-72.) Dr. Cools indicated that Claimant was moderately limited in her ability to: carry out very short and simple instructions; maintain attention and concentration for extended periods; perform activities within a schedule; complete a normal work day or week without interruptions from psychologically based symptoms; interact appropriately with the general public; and travel in unfamiliar places or use public transportation. (Tr. 271-72.) Claimant was listed as being markedly limited in the ability to understand and remember detailed instructions and the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. (Tr. 271.)

In his explanation for his assessment, Dr. Cools' described Claimant's medical history. (Tr. 273.) He noted that the consultative examiner's diagnosis of dysthymia with a GAF score of 80 was not consistent with a person who was having three panic attacks per week that would incapacitate her for two hours each. (Tr. 273.) Dr. Cools noted that Claimant's treating notes were more restrictive than her psychological evaluation, but not as restricted as the Claimant self-reports. (Tr. 273.) He diagnosed Claimant with a severe mental impairment characterized by depression and anxiety, and noted that she received a good result from her medications. (Tr. 273.) She was not found to meet or equal any impairment in the Listings. (Tr. 273.) Ultimately, Dr. Cools found that Claimant retained the capacity to understand, learn, and remember simple routine tasks; the capacity to maintain concentration, pace, and persistence sufficient to perform simple routine tasks; the ability to relate ...

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