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Andrew andrews v. Michael J. Astrue

July 29, 2011

ANDREW ANDREWS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT,



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

MEMORANDUM OPINION AND ORDER

Pursuant to 42 U.S.C. § 405(g), plaintiff Andrew Andrews seeks judicial review of a decision denying his application for Disability Insurance Benefits ("DIB"). The parties have filed cross-motions for summary judgment. Mr. Andrews seeks a judgment reversing the final decision or remanding it to a new Administrative Law Judge ("ALJ") for review. Defendant Michael J. Astrue, the Commissioner of Social Security ("Commissioner"), seeks a judgment affirming the final decision. For the reasons set forth below, Mr. Andrews's motion for summary judgment is granted [dkt 26] and the Commissioner's cross motion for summary judgment is denied [dkt 28].

PROCEDURAL HISTORY

On September 5, 2007, Mr. Andrews filed an application for DIB, alleging disability beginning May 1, 2007.*fn1 On December 6, 2007 the claim was initially denied and was also denied upon reconsideration on February 5, 2008.*fn2 On March 7, 2008, Mr. Andrews then filed a written request for hearing.*fn3 On September 18, 2008, Mr. Andrews appeared and testified at a hearing before Maren Dougherty, Administrative Law Judge (ALJ), in Evanston, Illinois.*fn4

Stephanie Andrews, claimant's wife and James J. Radke, Vocational Expert ("VE") also testified.*fn5 The ALJ issued an unfavorable decision on June 3, 2009.*fn6 On September 21, 2009, claimant requested a review by the Appeals Council and was denied.*fn7 The ALJ's decision on June 3, 2009 stands as the final decision of the Commissioner.*fn8 On October 28, 2009, claimant filed this action, and both parties subsequently moved for summary judgment.

STATEMENT OF THE FACTS

A. Introduction

In a decision issued on June 3, 2009, the ALJ found that plaintiff has the following impairments which are severe in combination: anxiety disorder with panic attacks, depression, poor vision in the right eye, asthma, elevated liver enzymes, diabetes mellitus and tendonitis of the shoulders.*fn9

A summary of the facts from the September 18, 2008 hearing before the ALJ include the following: Plaintiff is a former self-employed house painter who has worked from June, 1976 to May, 2007.*fn10 Plaintiff testified that his diabetes, at times, makes him feel like he is "out of body" and that it limits his ability to drive when it happens.*fn11 He also testified that he usually lies down until the "out of body" sensation passes.*fn12 Plaintiff also suffers from blindness in his right eye although it was caused in childhood.*fn13 Plaintiff testified that the pressure in his blind eye limits his ability to bend and stoop due to pain.*fn14 In a consultation with Matthew Goren, M.D., plaintiff was told that eye surgery would be needed to relieve the pressure that causes the pain.*fn15 Plaintiff testified that he has asthma and has trouble breathing, especially during hot weather.*fn16 He mentioned other factors that tend to aggravate his asthma such as: secondhand smoke, cat hair, dust, smoke from chimneys, and diesel truck fumes.*fn17 Additionally, plaintiff testified that he becomes fatigued from walking for more than two blocks and that he must nap 45 minutes to 1 hour each day, due to fatigue.*fn18 Finally, he claims to suffer from sharp pain in both of his shoulders while lifting items or performing household chores.*fn19
Apart from his physical impairments plaintiff also suffers from anxiety and panic attacks caused by a variety of triggers like: fear of crowds, driving over bridges, driving on highways and flying.*fn20 At the hearing he testified to having a panic attack while waiting to checkout at a Costco store.*fn21 Before he could pay for his groceries, plaintiff left the store because he could not stand to be around people any longer.*fn22 In addition to having a fear of crowds, plaintiff was also diagnosed with agoraphobia (a fear of leaving home) and depression.*fn23

B. Prescribed Medications

Plaintiff is prescribed the following medications: Advair (for asthma);*fn24 Albuterol (a bronchial muscle relaxer that helps to relieve symptoms of asthma);*fn25 Flovent (used to prevent breathing difficulty, chest tightness, wheezing and coughing);*fn26 Lipitor (used to reduce the risk of heart attack and stroke and to control cholesterol levels);*fn27 Betimol (used to treat glaucoma and reduce pressure in the eye);*fn28 Captopril (used to treat high blood pressure and heart failure);*fn29 Metformin (used to treat type 2 diabetes);*fn30 Hydrochlorothiazide (used to treat high blood pressure and fluid retention caused by various conditions, including heart disease);*fn31

Flexotin (used for panic attacks and anxiety);*fn32 Prozac (used to treat depression, obsessive-compulsive disorder, some eating disorders, and panic attacks);*fn33 and Zoloft (used to treat depression, obsessive-compulsive disorder and panic attacks).*fn34 Plaintiff states that these prescriptions do not alleviate all of his conditions and that he struggles in hot weather to breathe and uses his inhalers up to four times a day.*fn35 Plaintiff also states that he suffers from a lack of sex drive, a side effect from the use of Flexotin.*fn36

C. The treating and non-treating physician(s)

Plaintiff had a number of physicians he used to help treat his physical and mental impairments. The following is a list of his treating physicians: Daniel Greenberg, M.D.; Charles Harris III, M.D.; Ann McCormick, RN/APN; Donald Koziol, M.D.; Archana Verma, M.D. There were also non-treating physicians used predominately by the state to review and assess plaintiff's medical records and they include: Matthew Goren, M.D.; Sandra Hare, M.D.; Chirag Raval, M.D.; Richard Bilinsky, M.D.; Kirk Boyenga, M.D.; Charles Kenney, M.D.; Carl Hermsmeyer, P.H.D.

D. Diagnostic tests and results

In 2001 at the Stroger Hospital of Cook County plaintiff had a biopsy of his liver and was diagnosed with fatty liver disease.*fn37 In 2003 he had a lung capacity test at Stroger Hospital that came back within normal limits but showed a peak flow rate of 430 and was expected to be 605; he was given Albuterol to control the asthma .*fn38 In 2007, plaintiff had a vision test performed by Dr. Greenberg who diagnosed plaintiff with ocular hypertension, corneal edema, and an absence of the lens in his right eye.*fn39 Later in 2007 he had a blood test performed at the Helping Hands Clinic.*fn40 In 2008, plaintiff had an exam of his left and right shoulders which revealed bilateral mild supraspinatus tendinosis and mild acromioclavicular osteoarthritis, but no rotator cuff tear.*fn41 Additionally, plaintiff had regular check-ups at the Erie Family Health Center for various complaints and to adjust prescriptions as needed.*fn42 Plaintiff was also treated for his mental impairments at the Maine Centerby Dr. Koziol.*fn43 Part of the treatment included the use of prescription drugs which were monitored for its efficacy with the prescribed amount(s) modified as needed.*fn44

E. The Listing Determination

The ALJ determined that claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix I. 20 CFR 404.1425 and 404.1526.*fn45 In coming to her determination, the ALJ looked at the following listings: listing 1.02 to consider claimant's shoulder tendonitis; listing 2.02 to consider claimant's poor vision in his right eye; listing 3.03 to consider claimant's asthma; listing 5.05 to consider claimant's chronic liver ...


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