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John L. Paar v. Michael J. Astrue

January 17, 2012

JOHN L. PAAR , PLAINTIFF,
v.
MICHAEL J. ASTRUE , COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Martin Ashman

MEMORANDUM OPINION AND ORDER

Plaintiff John L. Paar ("Plaintiff" or "Mr. Paar") seeks judicial review of a final decision of Defendant, Michael J. Astrue, Commissioner of Social Security ("Commissioner"), denying Plaintiff's application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. Before this Court is Plaintiff's Motion for Summary Judgment. The parties have consented to have this Court conduct any and all proceedings in this case, including entry of final judgment. 28 U.S.C. § 636(e); N.D. Ill. R. 73.1(c). For the reasons discussed below, the Court finds that Plaintiff's motion is granted in part and denied in part.

I. Legal Standard

In order to qualify for DIB, a claimant must demonstrate that he is disabled. An individual is considered to be disabled when he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An individual is under a disability if he is unable to do his previous work and cannot, considering his age, education, and work experience, partake in any gainful employment that exists in the national economy. Id. Gainful employment is defined as "the kind of work usually done for pay or profit, whether or not a profit is realized."

20 C.F.R. § 404.1572(b).

A claim of disability is determined under a five-step analysis. See 20 C.F.R. § 404.1520;

20 C.F.R. § 416.920. First, the SSA considers whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(4)(I). Second, the SSA examines if the physical or mental impairment is severe, medically determinable, and meets the durational requirement.

20 C.F.R. § 404.1520(4)(ii). Third, the SSA compares the impairment to a list of impairments that are considered conclusively disabling. 20 C.F.R. § 404.1520(4)(iii). If the impairment meets or equals one of the listed impairments, then the applicant is considered disabled; if the impairment does not meet or equal a listed impairment, then the evaluation proceeds to step four. Id. Fourth, the SSA assesses the applicant's RFC and ability to engage in past relevant work.

20 C.F.R. § 404.1520(4)(iv). In the final step, the SSA assesses whether the claimant can engage in other work in light of his RFC, age, education and work experience. 20 C.F.R. § 404.1520(4)(v).

Judicial review of the ALJ's decision is governed by 42 U.S.C. § 405(g), which provides that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). The court reviews the entire record, but does not displace the ALJ's judgment by reweighing the facts or by making independent credibility determinations. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). Instead, the court looks at whether the ALJ articulated an "accurate and logical bridge" from the evidence to her conclusions. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008). Thus, even if reasonable minds could differ whether the Plaintiff is disabled, courts will affirm a decision if the ALJ's decision has adequate support. Elder, 529 F.3d at 413 (citing Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007)).

II. Procedural History

Plaintiff filed an application for DIB on August 8, 2005, alleging that he became disabled as of December 31, 2003 from arthritis in his back and post traumatic stress disorder ("PTSD"). The Social Security Administration ("SSA") denied the claim initially and again on reconsideration, following which an administrative hearing was held before administrative law judge ("ALJ") John Mondi on January 3, 2008. Mr. Paar was represented by counsel. On April 2, 2008, the ALJ denied Mr. Paar's claim. Mr. Paar's request for review was also denied, and the ALJ's opinion became the Commissioner's final decision. Mr. Paar filed this action on August 24, 2009. After receiving six extensions of time in which to file his motion, Mr. Paar eventually submitted the instant motion on February 2, 2011.

III. Factual Background

A. Medical History

Mr. Paar was born on June 16, 1947 and was fifty-six years old at the time of the hearing. A veteran of the Vietnam War, Mr. Paar has a history of drug abuse that is now behind him, although he continues to drink and, on occasion, to gamble. After leaving Vietnam, Mr. Paar worked as a furniture repairer, a refinisher, and a reupholsterer in his family business. (R. 143, 147). His earnings grew during the period between 1978, when his annual income was only $2,602, and 1998, when Mr. Paar earned $20,800. (R. 94). From that point forward, however, his earnings rapidly decreased until they were $0.00 for 1997, 1998, and 1999. In the last year reported, Mr. Paar earned only $990 in 2003. (Id.).

Beginning in 1999, Mr. Paar began to experience pain in his left flank. A radiological study performed on March 6, 1999 showed that multiple calcifications were present within his pelvis, with areas of bony sclerosis involving the left iliac bone. (R. 247). On January 15, 2004, he presented at Sherman Hospital in Elgin, Illinois for a radiological exam of his cervical spine. An x-ray showed that Mr. Paar was also suffering from facet joint arthropathy in the cervical spine, particularly at the C4-C5 level, that caused some foraminal stenosis.*fn1 (R. 185). However, a further MRI study indicated that there was no evidence of disc herniation, spinal stenosis, or neural foraminal compromise at any level. (R. 186). On March 4, 2004, Mr. Paar returned once more to Sherman Hospital for an x-ray of the thoracic spine. The x-ray indicated that degenerative and spondylitic changes were seen throughout that portion of Mr. Paar's spine.

(R. 187).

Based on these studies, and Mr. Paar's continuing pain, Dr. Roger Tolentino diagnosed him on June 7, 2004 as having upper cervical radicular syndrome and cervical facet syndrome.

(R. 189). He prescribed Vioxx tablets for the pain associated with such disorders and noted that a C4-C5 steroid injection might be necessary if the medication did not provide sufficient relief. Two months later, Mr. Paar reported to Dr. Tolentino that Vioxx had provided considerable relief, with his neck pain reduced from a four to eight out of ten on June 7, 2004 to a two to three out of ten on August 9, 2004. (R. 190).

Mr. Paar was also experiencing breathing problems at this time, and an October 26, 2004 pulmonary function test was ordered to explore the cause of his problems. Mr. Paar's FVC, FEV1, and FEV1/FVC spirometry were found to be normal, thereby indicating normal lung functioning. Overall, he was found to have mild hyperinflation, with moderate gas trapping, as well as arterial blood gases demonstrating elevated carboxyhemoglobin consistent with smoking.

(R. 256-57).

On July 17, 2005, Mr. Paar returned to Sherman Hospital complaining of severe lower back pain. Dr. Abitabh Singh found no spondylolisthesis or convincing evidence of spondyloysis, but he did note mild degenerative changes in the lumbar spine. (R. 202-03). One year later, on June 6, 2006, further examination showed prominent facet joint arthropathy in Mr. Paar's cervical spine at the C3-C7 range. (R. 404-05). Foraminal narrowing was indicated at C3-C4, but no degenerative disc changes were seen in the lower thoracic and upper lumbar spine. (Id.).

During the period in which Mr. Paar was receiving treatment for problems with his spine, he was also struggling with mental health issues. The record shows that he began receiving counseling at the Veterans Administration's ("VA") Edward Hines Hospital in 2002 for PTSD, as well as monthly psychotherapy sessions at the VA facility in Elgin, Illinois. Mr. Paar's primary care physician, Dr. Gary Lewison, began pharmaceutical treatment for depression in mid-2003 by prescribing Zoloft, and then Lexapro. (R. 372). By October 2003, Mr. Paar reported that he had been depressed for the three preceding years and was experiencing significant financial and marital stresses. He admitted to occasional outbursts of anger and to drinking up to seven drinks during the evening. In addition, Mr. Paar stated that he loved to gamble and that he had accumulated as much as $50,000 in debt doing so. (R. 320). As a result, his psychiatrist at the VA hospital, Dr. Michael Kuna, changed his medication from Lexapro to Celexa, and added Lithium to his medication regime. (R. 321).

The record is not clear if his psychiatric consultation was part of a disability claim submitted to the VA, but Mr. Paar was found by that agency in October 2003 to have a 70 percent disability based on a diagnosis of PTSD. (R. 532). The medical examiner noted that he experienced symptoms of depression, recurrent nightmares, dreams of being shot at, as well as recurring recollections of traumatic scenes and images from his experiences in Vietnam.

(R. 533). Treatment notes throughout 2004 show that Mr. Paar continued to struggle with his symptoms. In February 2004, he was noted to be very aggressive and argumentative, with extreme mood swings. (R. 460). By April, however, he was showing improvement, with controlled gambling and drinking limited to one or two drinks per day. (R. 456). A note dated May 28, 2004 indicates that he was doing better overall, but by October 18, Mr. Paar was once again exhibiting extreme fluctuations in mood. (R. 449, 453).

The records for the first half of 2005 indicate that Mr. Paar experienced some relief from the worst of these symptoms, and he was able to travel to a Carribean island on vacation with his wife. By July 14, 2005, however, Dr. Thomas Benton noted that he appeared unkempt and sad and that ...


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