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Robert D Bennett v. Michael J. Astrue Commissioner of Social Security.

August 5, 2011


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


I. Introduction

Robert D. Bennett seeks judicial review of the Social Security Administration Commissioner's decision to deny his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act and Supplemental Security Income ("SSI") under Title XVI 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 December 14, 2009. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

Claimant first filed for DIB on November 29, 2006, and for SSI on December 8, 2006. (Tr. 210, 214.) He alleges a disability onset date of April 30, 2004. (Tr. 210, 216.) His claim was denied initially and on reconsideration. (Tr. 157, 163, 168.) The Administrative Law Judge ("ALJ") conducted hearings into Claimant's application for benefits on December 2, 2008. (Tr. 107.) At the hearing, Claimant was represented by counsel and testified. (Tr. 107.) Dr. Norris Dougherty, a Medical Expert (hereinafter referred to as "ME") and William Schweihs, a Vocational Expert (hereinafter referred to as "VE") were also present and testified. (Tr. 107.) The ALJ issued a written decision denying Claimant's application on March 4, 2009, finding that Claimant was able to perform jobs that exist in significant numbers in the national economy. (Tr. 104, 107.) 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.)

III. Background

At the hearing, Claimant testified to the following:

He was 44 years old, married, and had one ten year old child. (Tr. 109.) Claimant was living with friends from his church in an apartment due to marital issues, but expected to be moving back home. (Tr. 109-10.) He was approximately 5' 7" and 240 pounds. (Tr. 109.) He completed high school through tenth grade, and later completed a GED program and attended some college courses. (Tr. 112.) He did not have a driver's license because of prior DUI's, and was attending court-ordered alcohol rehabilitation. (Tr. 110.)

Claimant described drinking alcohol once or twice a month, but having behavioral issues when he would drink. (Tr. 111.) He was on probation for a domestic incident that occurred between Claimant and his wife. (Tr. 108, 111.)

Claimant's previous work was described as computer hardware support. (Tr. 113.) His prior work included having been a network administrator for a church organization, an administrative assistant at an actuarial firm, a computer technician at a furniture chain, and an apprentice technician at a car dealership. (Tr. 113-14.) He explained that he could no longer do the computer work because of the level of stress involved. (Tr. 114.)

Claimant reported taking Prozac and Buspirone for anxiety and Zyprexa to treat his bipolar disorder, though he was not seeing a psychiatrist or psychologist because they would not take his medical card. (Tr. 114, 125.) He received prescriptions for his medications from his general physician and a doctor at Crusader Clinic. (Tr. 125.) Claimant had attempted to get help from the Janet Wattles Center, but they would not treat him because of his alcohol use. (Tr. 115.) He was also in an outpatient support program for alcohol addiction, though he denied being an alcoholic. (Tr. 115-16.) Claimant described being a binge drinker who would drink one or two times a month. (Tr. 118.) He stopped drinking in August 2008. (Tr. 118.) He continued to smoke about half a pack of cigarettes per day. (Tr. 119.) He has attempted to get into an anger management class because he felt he needed it. (Tr. 120.) He reported feeling depressed, and had thoughts of hurting himself in the past but was never ready to act on them. (Tr. 127.)

Claimant described his heart problems as causing him fatigue and angina, which he sometimes confused with heart attacks. (Tr. 119.) He could not do anything on his feet for any length of time, and experienced shortness of breath. (Tr. 119.) He had sleeping problems and started using a CPAP machine which allowed for some improvement. (Tr. 119.) Claimant took naps daily because of his fatigue. (Tr. 119.) He had a heel spur on his left foot that would not allow him to walk long distances and made stairs painful. (Tr. 122.) He was not able to receive a cortisone shot because he also has diabetes. (Tr. 122.) Due to knee and leg pain, Claimant was unable to stand for more than seven to ten minutes, and could only sit comfortably for about fifteen minutes. (Tr. 129.) Claimant had upcoming doctor appointments with Dr. Gollum, his regular physician, and with a cardiologist and a gastroenterologist. (Tr. 132.) His blood pressure was described as being borderline high. (Tr. 134.)

Though he was not living at home at the time of the hearing, Claimant stated that when he was at home he could not do any housework. (Tr. 119.) He receives help from his ten-year-old and some friends, but the house and yard remain a mess. (Tr. 120.) He rides to the grocery store but usually does not go in because he cannot walk around the store. (Tr. 121.) Claimant went to church sometimes with the friends he was staying with, but he was not able to sit through an entire service due to pain in his knees and back. (Tr. 122-23.) His busiest day included going to therapy in the morning, coming home and eating, taking an afternoon nap, and watching television with his son before going to bed. (Tr. 131.)

Since his alleged onset date of April 2004, Claimant attempted to work on two occasions. (Tr. 125.) The first attempt was a tech job at a bank in Iowa, but he had to leave the job after a hospital stay related to his heart condition. (Tr. 125.) The second attempt was through a temporary hiring firm in Freeport, Illinois. (Tr. 125.) He was unable to perform more than one forty hour week at the temp job because of his medical condition and a hospital stay for pneumonia and gastric ulcers. (Tr. 126.)

The ME testified that Claimant's sleep apnea was controlled fairly well with his CPAP machine. (Tr. 134.) The ME described Claimant's two proven problems as producing overlapping symptoms that lead to Claimant getting admitted to the hospital. (Tr. 134.) Claimant experiences chest pain that must be treated as a heart issue, but its cause may instead be related to his diagnoses of reflux esophagitis and gastric ulcers. (Tr. 134-35.) The ME believed that Claimant's gastrointestinal issues would respond fairly well to Nexium and antacid.

(Tr. 135.) The ME noted that Claimant also was overweight, diabetic, had high cholesterol, and probably had some depression, indicating that he had "all the risk factors." (Tr. 135.) According to the ME, none of Claimant's conditions appeared to rise to a listings level, but the ME wondered about the combination of factors. (Tr. 135.) The ME was unable to attribute Claimant's fatigue to his heart problem, noting that Claimant's cardiac ejection fraction was only slightly below normal. (Tr. 137.) The ME noted that there was a psychiatric component to Claimant's condition, but could not elaborate other than to state that "if I had his problems, I think I'd be depressed too." (Tr. 138.)

The ME testified that Claimant was capable of sedentary work. (Tr. 136.) Claimant could stand for two out of eight hours with rest periods, lift no more than 10 pounds regularly and 20 pounds occasionally, would have to have a sit/stand option, could perform bending and lifting, and would have to avoid unprotected heights or work around moving machinery. (Tr. 136.) As to the sit/stand option, the ME stated that Claimant might have trouble sitting for longer than 20 minutes at a time due to the general aches and pains he appears to have.

The VE testified that someone with Claimant's age, education, and work experience who could perform the entire universe of exertional or non-exertional work except that he be limited to lifting and carrying 20 pounds occasionally, 10 pounds regularly, could stand and walk for two out of eight hours in divided periods, could sit six out of eight hours with a sit/stand option, could not work around unprotected heights or dangerous moving machinery, and was limited to simple routine tasks with only occasional contact with the general public could not perform Claimant's past relevant work. (Tr. 147.) The VE could not cite to any jobs that Claimant could perform based on the above assumptions. (Tr. 147.) If the restriction on contact to the general public and co-workers was removed, Claimant would be capable of production jobs such as assembly, packaging, visual inspection, and cashier positions. (Tr. 147-48.) There were at least 3,000 of each category of job listed in Illinois. (Tr. 148.)

The VE explained that a person would have to sit for about 20 to 30 minutes in order to perform the jobs he listed because more frequent standing could have an effect on a person's ability to work at a consistent pace. (Tr. 148.) If a person were only able to sit for 15 minutes without having to stand up, the VE opined that such a person would not be capable of the work he listed. (Tr. 149.) Because of the unskilled nature of the work, the VE believed that a person could not be absent for more than a day to a day-and-a-half per month on a regular basis. (Tr. 149.)

IV. Medical Evidence

Claimant was admitted to the emergency room of Swedish American Hospital on August 22, 2004 complaining of chest pain that he had primarily experienced on the previous day. (Tr. 337.) It was noted that Claimant had a long-term history of coronary artery disease. (Tr. 337.) He reported taking Prevacid, Toprol*fn1 , lisinopril*fn2 , Lipitor*fn3 , and aspirin. On August 23, 2004, Claimant underwent a left heart catheterization, selective coronary angiography, left ventricular angiography, and percutaneous coronary intervention of the left circumflex coronary artery. (Tr. 345.) He was diagnosed with a non-ST elevation myocardial infarction and coronary intervention of the left circumflex coronary artery. (Tr. 340.) Claimant received stents in the right coronary artery, and was noted to have non-obstructive lesions in the distal left circumflex coronary artery. (Tr. 346.) Claimant was given ReoPro*fn4 for 12 hours following his procedure, was prescribed Plavix*fn5 for one year, and advised to continue taking aspirin for the rest of his life. (Tr. 347.) At a follow up appointment on September 10, 2004, Dr. Zubair M. Syed, M.D., observed that Claimant's blood work revealed a diagnosis of Type II diabetes, and that Claimant had a history of anxiety, depression, gastroesophageal reflux disease, and obesity. (Tr. 353.)

Claimant had a number of follow-up visits with Dr. Jocelyn Go-Lim, M.D., throughout 2005. In addition to his heart and blood pressure conditions, Dr. Go-Lim observed during various appointments that Claimant experienced bipolar depression, anxiety, bilateral knee pain with reduced range of motion, panic attacks, acute bronchitis, acute sinusitis, acute pharyngitis, increased weight, hemorrhoids, and hyperglycemia. (Tr. 348, 438-52, 455-58, 463, 469.) Dr. Go-Lim increased Claimant's Toprol prescription for his blood pressure and prescribed additional medications for Claimant, including Ativan for anxiety, Effexor*fn6 , and Buspirone*fn7 . (Tr. 452.) Claimant saw Dr. Go-Lim on five occasions between January 10, 2006 and March 22, 2006. Though the symptoms were primarily related to his sinusitis and pharyngitis, notations also appear regarding Claimant's hypertension, knee pain, and diabetes. (Tr. 412-28.) Claimant returned to see Dr. Go-Lim on April 18, 2006, and reported that he was experiencing sustained left knee pain resulting from a fall on stairs. (Tr. 409.) Claimant's blood-sugar readings had been running high and he was advised to return in May 2006 for blood and urine testing. (Tr. 409.)

On May 10, 2006, Claimant was admitted to Saint Anthony Medical Center complaining of chest pain he experienced while driving his lawnmower. (Tr. 534.) Myocardial infarction was ruled out but tests were positive for ischemia and scar. (Tr. 534.) Cardiology testing revealed dilated cardiomyopathy with at least moderate impairment of left ventricular systolic function disproportionate to the greater coronary artery disease, mild mitral insufficiency, and diastolic dysfunction. (Tr. 550.) Claimant underwent a successful angioplasty and stent replacement. (Tr. 550.) Claimant followed up with Dr. Go-Lim at appointments on June 1, 2006, who noted that in addition to Claimant's recent angioplasty, Claimant's blood-sugar readings continued to fluctuate and that claimant had hypercholsterolemia. (Tr. 404.) Claimant was again admitted to Saint Anthony Medical Center with complaints of chest pain on June 12, 2006, but tests were negative for myocardial infarction and ischemia. (Tr. 575-76.)

On August 30, 2006, Claimant reported tiredness and pain in his lower extremities to Dr. Go-Lim. (Tr. 397.) Dr. Go-Lim suggested a lower extremity arterial Doppler study, which Claimant underwent on September 18, 2006. (Tr. 505.) The study ruled out arterial insufficiency as a cause of the pain. (Tr. 505.) On September 6, 2006, Claimant saw Dr. GoLim with an infected wound on his left foot, which was eventually diagnosed as a non-healing ulcer. (Tr. 394, 504.) At a September 13, 2006 appointment regarding the foot ulcer, Dr. GoLim noted that the wound had increased in size and that Claimant's diabetes and coronary artery disease were not well controlled. (Tr. 391.) On September 18, 2006, Claimant saw Dr. Kenneth Stevens for a follow-up on his recent angioplasty. (Tr. 584-86.) Dr. Stevens found that Claimant was doing fairly well, and advised him to continue to follow up with Dr. Go-Lim regarding his psychiatric medications. (Tr. 586.)

On September 20, 2006, Claimant visited Dr. Go-Lim to check up on his non-healing ulcer. (Tr. 388.) Dr. Go-Lim noted that the ulcer was not healed, that Claimant had been attempting to control his diabetes through his diet until a recent binge drinking episode, and that Claimant felt depressed about the drinking. (Tr. 388.) Claimant's condition was largely improved at an October 5, 2006 appointment, though it was noted that he had a lesion on his left temple. (Tr. 383.) No significant items were contained in the notes of Claimant's visits with Dr. Go-Lim in October and November 2006, aside from the continued attempts to treat the foot ulcer. (Tr. 373, 377, 380.) On November 9, 2006, Dr. Michael J. Kikta, M.D. F.A.C.S. performed a debridement procedure on Claimant's ulcer, and the wound was reported to be healed on December 19, 2006. (Tr. 592-94.) On January 10, 2007, Dr. Go-Lim noted that Claimant's blood-sugar was much better and that he had recently returned to work. (Tr. 368.) Claimant reported feeling better about himself and there was no mention of the foot ulcer. (Tr. 368.)

On February 12, 2007, Claimant underwent a psychological consultative examination by Dr. John Peggau, Psy. D. on a referral from the State Agency. (Tr. 598.) Dr. Peggau's notations are unremarkable, with the possible exception of a note that Claimant had low self esteem that facilitated his dysthymic disorder or depression. (Tr. 587-600.) Dr. Peggau diagnosed Claimant with dysthymic disorder in the form of alcohol dependence, personality disorder with narcissistic features, and a current GAF score of 53*fn8 . Dr. Peggau noted that Claimant was able to understand, remember, sustain concentration, and persist in tasks, and was able to interact socially and adapt to work settings. (Tr. 600.)

On February 14, 2007, Dr. Kamlesh Ramchandani, a State Agency physician, performed a medical examination of Claimant. (Tr. 602.) Claimant reported feeling a constant fatigue with shortness of breath associated with tasks such as showering, walking for one block, or climbing one half a flight of stairs. (Tr. 602.) Dr. Ramchandani observed that multiple reports indicated that Claimant's ejection fraction was at 60%. (Tr. 603.) Dr. Ramchandani found that Claimant had coronary artery disease with atypical chest pain and a negative coronary angiogram, Type II non-insulin dependent diabetes mellitus with dislipidemia, a history of alcoholism and bipolar disorder, obesity, and malaise related to multiple factors. (Tr. 603.)

On February 16, 2007, a Psychiatric Review Technique form was completed by State Agency physician Dr. Elizabeth Kuester, M.D. (Tr. 606.) Dr. Kuester found that Claimant had non-severe impairments including dysthymic disorder, narcissistic features, a substance abuse disorder with self reported remissions and decreases. (Tr. 606-14.) Claimant was marked as having a mild restriction of activities of daily living, mild difficulties in maintaining social ...

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