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Robert Glenn Lavarier v. Michael J. Astrue

May 27, 2011


The opinion of the court was delivered by: Michael T. Mason United States Magistrate Judge


Michael T. Mason, United States Magistrate Judge:

Plaintiff, Robert Lavarier ("Lavarier" or "claimant"), has filed a motion for summary judgment seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying Lavarier's disability claim under the Social Security Act ("Act"), 42 U.S.C. §§ 416(i) and 423(d). The Commissioner filed a cross-motion for summary judgment asking this Court to affirm the decision of the Administrative Law Judge. We have jurisdiction to hear this action pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, Lavarier's motion for summary judgment [20] is granted in part, the Commissioner's cross-motion for summary judgment [24] is denied, and the case is remanded for further proceedings consistent with this opinion.


A. Procedural History

Lavarier filed his application for disability benefits on September 6, 2006, alleging that he became disabled March 3, 2005 due to disorders of his back. (R. 82.) The Social Security Administration ("Administration") denied his application on December 6, 2006. (R. 84-88.) Claimant filed a motion for reconsideration on December 19, 2006.

(R. 94.) The Administration affirmed its denial of benefits on January 30, 2007. (R. 96-99.) Lavarier requested a hearing before an Administrative Law Judge ("ALJ") on March 22, 2007. (R. 101.) The hearing occurred on May 7, 2008, before ALJ John S. Pope. (R. 27-81, 107.) On September 15, 2008, ALJ Pope issued his ruling denying Lavarier disability benefits. (R. 13-24.) Lavarier requested a review of the ALJ's decision. (R. 12.) On November 4, 2009, the Appeals Council affirmed ALJ Pope's decision, making his decision the final decision of the Commissioner. (R. 1-3); Hopgood v. Astrue, 578 F.3d 696, 698 (7th Cir. 2009); Zurawski v. Halter, 245 F.3d 881, 883 (7th Cir. 2001). Lavarier subsequently filed this action in federal district court.

B. Medical History

A variety of physicians treated the claimant, both before and after his application for disability benefits. Their records, as well as claimant's completed questionnaires and various medical examiners' records from the application process, establish the claimant's medical history. They are summarized below.

1. Dr. Cesario M. Cumba, Treating Physician

Dr. Cesario M. Cumba, M.D., a doctor at the Tratt Clinic, was the first doctor reflected in the record to treat Lavarier. (R. 439-55.) He first saw claimant in February 1986, and stopped seeing the claimant in 1996, although they did meet briefly in July 2005. (R. 455, 441.) While Dr. Cumba's notes are generally illegible to this Court, and the ALJ's opinion does not discuss them, they do offer a few pieces of information. Dr. Cumba's notes from February 18, 1986, mention Lavarier's anxiety, apparently as a diagnosis. (R. 455.) The notes also show that Dr. Cumba prescribed the claimant medication, including Tranxene, beginning in 1986. (R. 454-55.) They also mention that at a June 8, 1991 appointment, Lavarier reported feeling a tightening in his chest.

(R. 449.)

2. Dr. Ronald Wuest, Treating Psychiatrist

In 1997, Dr. Cumba referred Lavarier to Dr. Ronald Wuest, a psychiatrist at the Institute for Personal Development, so Dr. Wuest could treat Lavarier's chest pains and anxiety. (R. 488.) Claimant continued to see Dr. Wuest until 2002, when Dr. Wuest apparently refused to continue to treat the claimant because of the claimant's persistent "noncompliance," apparently including numerous missed appointments. (R. 467, 469.) While Dr. Wuest took notes in this period, they are largely illegible. (R. 469-88.) Further, the ALJ's decision does not mention them. While it is possible to decipher the words "OCD" and "somatization" in multiple places in Dr. Wuest's notes, it is unclear whether those appearances reflect a diagnosis. (R. 484, 485.)

3. Dr. John Goldin-Mertdogan, Treating Psychiatrist

After Dr. Wuest dropped Lavarier from his patient list, the claimant began treatment with Dr. John Goldin-Mertdogan, M.D., another psychiatrist at the Institute for Personal Development. Their first appointment was December 30, 2002, and they continued to meet until July 15, 2005. (R. 464-67.) While Dr. Goldin-Mertdogan's notes are difficult to read, they are not completely indecipherable, and this Court was able to glean the following from them.

Dr. Goldin-Mertdogan's notes dated December 30, 2002, state that claimant reported he had not had a panic attack in the previous four years. (R. 467.) Lavarier also reported feeling very depressed over his father's death, and that his father's death caused Lavarier, a recovered alcoholic and prior smoker, to resume smoking. (Id.) On February 3, 2003, Dr. Goldin-Mertdogan noted that the claimant reported he felt even more depressed over his father's death, so Dr. Goldin-Mertdogan increased the claimant's dosages of Anafranil and Tranxene, and started the claimant on Remeron.

(R. 466.) Dr. Goldin-Mertdogan also wrote that Lavarier stated he felt anxious and overwhelmed by his financial problems and a felony charge. (Id.) While Dr. GoldinMertdogan noted improvement on March 31, 2003, he later reported on July 7, 2003 that Lavarier was having more panic attacks, and was very depressed, as the anniversary of his father's death approached. (R. 465.) On December 15, 2003, Lavarier reported his belief that his depression, as well as problems with "overwhelming anxiety," prevented him from functioning at work. (R. 464.) On July 15, 2004, Dr. Goldin-Mertdogan noted that Lavarier was frustrated about being demoted at work. (Id.) He also observed that claimant was increasingly anxious and was having panic attacks, which were perhaps related to the anniversary of his father's death. (Id.) That was the last meeting between Dr. Goldin-Mertdogan and Lavarier documented in the record.

4. Dr. James K. Smedegard, Treating Psychiatrist

Dr. James K. Smedegard, M.D., a psychiatrist, began to treat Lavarier when Lavarier came to the Grundy County Health Department. (R. 227-28, 309-18, 435-37, 497.) At their initial meeting on September 8, 2005, Dr. Smedegard evaluated the claimant. (R. 228.) Dr. Smedegard wrote that Lavarier was alert oriented, soft spoken, and goal-directed without delusions or hallucinations. (R. 229.) Dr. Smedegard found that the claimant's insight and judgment were fair, and his attention and concentration were intact. (Id.) He noted that the claimant's global assessment of functioning ("GAF") score ranged from 45-50, a score which the ALJ stated indicates serious symptoms, including suicidal ideation, and serious impairment in social and occupational functioning. (R. 229, 22.) Claimant reported not taking his prescriptions when he was feeling well or when he could not afford them. (R. 228.) Dr. Smedegard continued Lavarier with Tranxene, and resumed Remeron. (R. 229.)

After their initial meeting, Dr. Smedegard continued to have regularly scheduled appointments with Lavarier. Unfortunately, several of his notes are illegible to the Court, namely those after the initial evaluation and before August 2007, as well as the notes from a June 26, 2008 meeting. (R. 309-316, 497.) Still, some notes are typewritten and legible, and provide information regarding the claimant's condition. After their meeting on August, 3, 2007, Dr. Smedegard diagnosed Lavarier with major depression and benzodiazepine dependence (Tranxene is a benzodiazepine). (R. 435.) He recommended more individual therapy and increased claimant's prescription of Celexa. (Id.) On October 18, 2007, Dr. Smedegard noted that Lavarier reported his mood was stable on Celexa, and that his remaining frustration and depression were due to his circumstances. (R. 436.) After their December 17, 2007 meeting, Dr. Smedegard continued to believe that Lavarier suffered from major recurrent depression, as well as benzodiazapene dependence. (R. 437.) He continued to recommend the current treatment regime, with a gradual reduction of his level of Tranxene. (Id.)

Supplementing these notes are Dr. Smedegard's diagnoses on the Multnomah Community Ability Scale ("MCAS"). (R. 423-34.) On August 31, 2006, Lavarier scored a 68 on the MCAS. (R. 430.)*fn1 Scores between 63-85 represent a high level of ability. (Id.) On December 17, 2007, Lavarier scored a 57 on the MCAS, with the biggest changes being in the categories of socialization (interests/involvement in activities) and adjustments to living. (R. 423.) Any score in the range of 48-62 indicates a medium level of ability. (Id.)

5. Ms. Susan C. Hudson, Treating Therapist

When Lavarier started services with Grundy County Health Department and Dr. Smedegard, he also began to regularly meet with Susan C. Hudson, MA LCPC, QMHP, LPHA, a mental health therapist. (R. 227, 233, 235, 237-248, 250, 252-54, 319-21, 324, 326, 328-39, 341, 343-45, 407-15, 417-22, 457-60, 494-96, 498.) Ms. Hudson's session notes provide detailed information about Lavarier. Their first session was on July 25, 2005. (R. 254.) Her notes from their early sessions indicate that Lavarier mentioned experiencing pain and clutched his chest, something he attributed to his anxiety instead of a physical cause. (R. 243, 245, 253.) She also noted that Lavarier indicated a decreasing ability to function in his interpersonal relationships, but that he was able to maintain a sense of appropriateness. (R. 240, 246.) In these initial meetings, Ms. Hudson attributed and linked Lavarier's problems to unresolved grief over his father's death. (R. 230, 240, 244, 319.)

Ms. Hudson also noted minor swings, as well as an overall general decline, in Lavarier's condition over the course of their sessions. In early 2006, she observed that the claimant was improving. (R. 242.) While Lavarier reported severe depression in April, Ms. Hudson still noted improvement in Lavarier's condition in mid-2006. (R. 237, 239, 240.) However, by August and September of 2006, she noted a general worsening in Lavarier's condition, which she believed to be caused by his unresolved grief over his father's death. (R. 230, 233, 407.) In January, 2007, she wrote that Lavarier started to discuss his concern that he had an undiagnosed stroke. (R. 319.)

In April 2007, Ms. Hudson noted that Lavarier's depression had been worsening, and that he had told her that he was in too much pain to get up. (R. 418.) Her notes indicate that he told her that, due to financial restraints, he had stopped taking his medication. (Id.) On September 11, 2007, after seeing the claimant for the first time after two months of missed appointments, Ms. Hudson reported that Lavarier appeared to be continuing in a downward spiral from depression, anxiety, and frustration. (R. 411.) At this time, Lavarier began to claim in his sessions with Ms. Hudson that his anxiety caused him to be fired from his previous job. (Id.) Ms. Hudson reported in October 2007 that claimant still continued to believe he suffered from an undiagnosed medical condition. (R. 409.)

In January 2008, Ms. Hudson stated her belief that grief over claimant's father's death had dragged him into a deep depression -- a theory she continued to express in her notes in June 2008. (R. 408, 495-96.) She also indicated, in January of 2008, that the claimant would not be able to successfully treat his symptoms with medication. (R. 408.) Additionally, for the first time, she expressed her belief that Lavarier would be unable to secure employment because of his mental afflictions. (Id.) She reiterated that opinion in her notes from subsequent sessions, such as on March 18, 2008. (R. 459.) At one of their last sessions before the hearing before the ALJ, in April 2008, Lavarier discussed his panic attacks in significant detail. (R. 457.)

6. Nurse Julie Nevins, Treating Nurse

While attending Grundy County Health Department, Lavarier met with Nurse Julie Nevins, a Registered Nurse and Qualified Mental Health Professional, in addition to Dr. Smedegard and Ms. Hudson. (R. 231-32, 234, 236, 249, 251, 322-23, 325, 327, 340, 342, 416.) While most of the notes are barely legible, it is possible to glean some facts from Nurse Nevins' reports of their meetings. In general, Lavarier's meetings with Nurse Nevins were fairly short, each lasting approximately ten minutes. Their meetings largely consisted of Nurse Nevins implementing Dr. Smedegard's treatment plan, monitoring whether Lavarier was stable on his medications, and helping him file his initial application for disability benefits. (Id.)

On September 8, 2005, Nurse Nevins wrote that she met with Lavarier to monitor his status on medications, and to implement Dr. Smedegard's treatment plan. (R. 342.) She noted that Lavarier reported to her that he felt the medications were helpful. (R. 342.) She made similar points on October 3, 2005, and stated that she was referring claimant to a physician for a medical checkup. (R. 340.) However, the record does not indicate whether such an appointment ever occurred. After their meetings on June 1, and August 24, 2006, Nurse Nevins reported that Lavarier stated he was taking his medications as prescribed and felt they were effective. (R. 327, 325.)

In her notes from their meetings on August 31 and September 6, 2006, Nurse Nevins reported that she began to assist claimant with filing his application for disability benefits. (R. 322-23.) That was their last recorded meeting, aside from a single report dated May 31, 2007, where claimant reported to Nurse Nevins that he was taking his medications, felt stable on the treatment plan, and denied any side effects. (R. 416.)

7. Claimant's Activities of Daily Living Questionnaires

On October 18, 2006, claimant completed questionnaires titled "Activities of Daily Living Questionnaire" and "Activities of Daily Living Questionnaire for Physical Impairments." (R. 189-96.) In his "Activity of Daily Living Questionnaire," claimant described that he rented a small house and cooked twenty percent of his meals. (R. 189.) When asked about household maintenance and the chores he could perform, he detailed that he did the dishes and picked up the house to keep it clean. (Id.) He also wrote that he had a lot of pain, requiring him to frequently rest, and that his condition was worsening. (Id.) When asked whether his condition affected his "bathing, hair care or dressing," he responded yes because he had difficulty standing. (R. 190.) In the category of general information, he wrote that these problems began between the age of 30 and 33, he had trouble finishing things he started because of the pain he experienced, he was forgetful, and he heard voices and saw people who were not around. (Id.) In particular, he wrote that he saw and heard the voice of his dead father. (Id.) When discussing his activities and interests, he wrote that he left his home two to four times a week, to visit family, keep appointments, and walk the dog. (R. 191.) When he left the house, he would usually walk or drive. (Id.) He also claimed he had trouble sleeping because of the pain. (Id.) When asked about his ability to get along with others, he wrote that he did not enjoy socializing with other people because he would often be angry and fight with people. (Id.) In listing his activities, he wrote that he would sometimes drive and watch television. (Id.) He also noted that his pain "keep's me from finishing anything [sic]." (R. 190.)

In his "Activities of Daily Living Questionnaire for Physical Impairments," Lavarier wrote that he felt pain, weakness, and fatigue for many activities involving his arms and hands, such as using kitchen tools, opening twist lids, turning pages or sorting and filing papers, dialing the phone, picking up a coin, using a writing utensil, dressing, maintaining personal hygiene, and carrying bags. (R. 194.) He also wrote under "standing and moving about" that he felt pain continuously in his left side, fatigue, and weakness. (Id.) Thus, he had to move slowly when getting in and out of a car, up from a sofa or out of bed, and when using a shower or bathtub. (R. 195.) Claimant also reported that he avoided stairs when possible, and could only manage ten steps "slowly" at a time. (Id.) He stated he needed assistance standing and walking, and had to use the support of another person, furniture and counters, and a cane. (Id.) He also wrote "I would use a cane but have no medical help." (Id.) Claimant indicated he could sometimes sit for at least two hours, and could not shop or cook for more than 20 minutes without needing to sit. (Id.) Claimant stated that during the day he needed numerous rest periods because of the pain. (Id.) When asked whether he could perform chores, he wrote "I do what I can just to keep feeling like a person." (Id.) He reported he did not do any yard work or house repairs, play sports, or use exercise equipment. (R. 196.)

8. Dr. William N. Hilger, Examining Pyschologist

Dr. William N. Hilger, Ph.D., a clinical psychologist at the Ostir Clinic, conducted psychological testing on the claimant for the Bureau of Disability Determination Services on October 31, 2006. (R. 259-63.) Prior to his evaluation, Dr. Hilger reviewed an "Adult Disability Report completed by the claimant," but no "formal medical reports" were provided for his review.*fn2 (R. 259.) Dr. Hilger conducted an hour long interview with the claimant. (Id.) Dr. Hilger reported that Lavarier drove himself to the appointment, was casually dressed, poorly groomed, unshaven, and had a strong odor of cigarettes. (Id.) When he observed Lavarier's motions, he saw that Lavarier had a normal gait and posture, and showed no sign of invalidism or pain in walking, rising, sitting, or standing. (Id.) Lavarier also appeared to have full use of his left arm and hand. (Id.) Dr. Hilger observed a small cyst on Lavarier's lower right neck. (Id.) He noted claimant was overly talkative, dramatic, and rambling. (Id.) Additionally, Dr. Hilger wrote that Lavarier would talk to his father "when he gets frustrated." (R. 260.) It is unclear whether that statement stems from Dr. Hilger's first-hand observation of Lavarier during their meeting, or whether Dr. Hilger reported what he had read on Lavarier's Activities of Daily Living Questionnaire, wherein Lavarier reported that he saw and heard the voice of his dead father. (R. 190.)

After testing Lavarier's mental capacity, Dr. Hilger made several conclusions. (R. 262-63.) First, he concluded that Lavarier had fair mental potential and could perform any work-related activities involving memory and understanding, sustained concentration and persistence, social interaction, and adaptation. (R. 263.) However, Dr. Hilger stated that Lavarier may be limited to lighter, less physically demanding work. (Id.) He also wrote that Lavarier's anxiety disorder appeared fairly well-controlled with medication. (R. 262.) Finally, Dr. Hilger observed that Lavarier's ...

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