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Timothy Brown v. Michael J. Astrue

January 25, 2012

TIMOTHY BROWN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:

E-FILED

Friday, 27 January, 2012 11:21:02 AM

Clerk, U.S. District Court, ILCD

OPINION

Plaintiff Timothy Brown appeals from the denial of his application for Social Security Disability Insurance Benefits and Supplemental Security Income (collectively "Disability Benefits") under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c. This appeal is brought pursuant to 42 U.S.C. §§ 405(g) and 1383(c). Brown has filed Plaintiff's Motion for Summary Judgment or Remand (d/e 12), and Defendant Commissioner of Social Security has filed a Memorandum in Support of Motion for Summary Affirmance (d/e 15).*fn1 The parties consented, pursuant to 28 U.S.C. § 636(c), to have this matter proceed before this Court. Consent to Proceed Before a United States Magistrate Judge, and Order of Reference entered January 20, 2011 (d/e 9). For the reasons set forth below, the Decision of the Commissioner is affirmed.

STATEMENT OF FACTS

Brown was born on July 8, 1971. He completed the tenth grade. Brown suffers from human immunodeficiency virus (HIV). Answer (d/e 6), attached Certified Transcript of Proceedings before Social Security Commission (R.), 32-33, 111, 284. He has worked as a cook, hand packager, stocker, order picker and airport aide. R. 32, 45, 121, 174, 218.

On August 5, 2005, blood tests showed that Brown had a CD4 count of 191, a viral load of 4,300, and a log value of 3.6. R. 318, 329, 355-56. CD4 cells decrease as HIV progresses. Viral loads of 40 to 500 are considered low. See Commissioner's Memorandum, at 2-3 n. 2-5 and authorities cited therein. On October 5, 2005, Brown saw Dr. Janak Koirala, M.D. Brown had no complaints. The examination was unremarkable. Based on the earlier blood tests, Dr. Koirala prescribed antiretroviral therapy. R. 329.

On January 20, 2006, Brown saw Dr. Koirala again complaining of itching skin lesions. R. 255, 347. Blood tests showed a CD4 count of 207 and a viral load of 5940. Brown had not been compliant in taking his medication. Brown saw Dr. Koirala again on May 25, 2006. Brown had a CD4 count of 157, and a viral load of 3290. R. 342, 346. At Brown's June 16, 2006, appointment, Dr. Koirala noted that Brown had some fatigue, but was doing well and was asymptomatic. R. 254, 336.

On September 11, 2006, a state agency psychologist, Dr. Kirk Boyenga, Ph.D., stated there was insufficient evidence to complete a psychiatric review. R. 261. On September 12, 2006, state agency physician Dr. Frank Norbury, M.D., completed a Physical Residual Capacity Assessment. Dr. Norbury opined that Brown could occasionally lift twenty pounds; frequently lift ten pounds; stand or walk for two hours in an eight-hour day; sit six hours in an eight-hour day; and had no limitations on his ability to push, pull and operate foot controls. R. 276. Dr. Norbury opined that Brown could occasionally climb, balance, stoop, kneel, crouch, or crawl. Dr. Norbury opined that Brown should avoid concentrated exposure to extreme cold and heat, humidity, and fumes, and should avoid even moderate exposure to hazards. R. 279. Dr. Norbury noted that Brown's HIV was asymptomatic, but also noted that Brown exhibited severe fatigue. R. 282. Dr. Norbury explained that, "Above limitations due to the claimant's fatigue which is usually one of the symptoms from HIV." R. 277. Dr. Norbury further stated that Brown's claims of fatigue "are credible considering his status of HIV." Dr. Norbury concluded, "He, however, retains the physical capacity to perform work activity within the restrictions noted on this RFC." R. 281.

On June 8, 2007, Brown saw Dr. Koirala again. Tests showed a CD4 count of 246 and a viral load of 5860. R. 326-29, 340, 360. Dr. Koirala noted that Brown was not taking his antiretroviral medication. Dr. Koirala recommended restarting his medication. R. 340, 360.

On July 12, 2007, Brown underwent a psychological consultative examination by Dr. Dolores Trello, Psy. D. R. 284-88. She diagnosed Brown with adjustment disorder, depressed mood associated with being HIV positive, and generalized anxiety disorder. Dr. Trello assessed Brown with having a Global Assessment of Functioning (GAF) of 50, and opined that Brown had serious impairment in vocational and interpersonal functioning. R. 287. Dr. Trello further opined that Brown was not able to handle his own funds due to fatigue and poor arithmetic skills. R. 288.

On July 16, 2007, agency physician Dr. Virgilio Pilpapil, M.D., performed a second Physical Residual Functional Capacity Assessment of Brown. R. 289-96. Dr. Pilpapil opined that Brown could occasionally lift fifty pounds; frequently lift twenty-five pounds; stand or walk for two hours in an eight-hour day; sit six hours in an eight-hour day; and had no limitations on his ability to push, pull and operate foot controls. R. 290. Dr. Pilpapil opined that Brown had no postural limitations (crawling, crouching, balancing, stooping, kneeling or climbing) but needed to avoid concentrated exposure to extreme heat and cold, noise, vibration, and hazards. R. 291, 293. Dr. Pilpapil noted that Brown's physical examination was unremarkable except for a rash, and that Brown was asymptomatic for opportunistic diseases. R. 290.

On July 26, 2007, Dr. Donald Cochran, Ph.D., performed a Psychiatric Review Technique and Mental Residual Functional Capacity Assessment. R. 297-314. He stated that Brown suffered from affective disorders and anxiety-related disorders. He opined that as a result of these disorders, Brown had moderate restrictions on his activities of daily living; moderate difficulties maintaining social functioning; and moderate difficulties maintaining concentration persistence, or pace; but no episodes of decompensation. R. 307. Dr. Cochran opined that Brown "retains the mental capacity to do simple work related tasks in the context of SGA." R. 309.*fn2 Dr. Cochran opined that Brown was moderately limited in his ability to: (1) understand and remember detailed instructions; (2) carry out detailed instructions; (3) maintain attention and concentration for extended periods; (4) perform activities within a schedule, maintain regular attendance and be punctual; (5) and interact appropriately with the general public. R. 310-12.

Dr. Koirala saw Brown in August, September, November, and December 2007. In August, his CD4 count was 133 and his viral load was 7550. Brown was not compliant with his medication. Brown started taking his medication and by November 2007, his CD4 count was 204, and his viral load was less than 50. R. 322-23, 358-59, 384-85, 381-82. On December 17, 2007, Dr. Koirala noted that Brown's HIV infection was stable, but he was still suffering from chronic pain. R. 382.

On January 9, 2008, Dr. Ernst Bone, M.D.,conducted another Physical Residual Functional Capacity Assessment. R. 366-75. Dr. Bone opined that Brown could occasionally lift twenty pounds; frequently lift ten pounds; stand or walk for two hours in an eight-hour day; sit six hours in an eight-hour day; and had no limitations on his ability to push, pull and operate foot controls. R. 367. Dr. Bone opined that Brown had no postural limitations and no environmental limitations (e.g., heat, cold, fumes, noise, hazards). R. 368, 370. Dr. Bone noted that Brown was "non-compliant with his meds. fatigue." R. 373. On January 11, 2008, agency psychologist Dr. Carl Hermsmeyer, Ph.D., affirmed Dr. Cochran mental assessment of Brown. R. 374.

Brown continued to see Dr. Koirala throughout 2008 and 2009. Throughout this time, his viral load remained below 500 and his CD4 count ...


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