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Colleen S. Weller v. Michael J. Astrue

August 13, 2012


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


I. Introduction

Colleen S. Weller ("Claimant") seeks judicial review of the Social Security Administration Commissioner's decision to deny her claim for Disability Insurance Benefits ("DIB"), under Title II 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 June 30, 2010. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

On January 3, 2006, Claimant applied for Disability Insurance Benefits, alleging a disability onset date of June 30, 2003. (Tr. 84.) Claimant's initial application was denied on March 14, 2006. (Tr. 84.) Her claim was denied a second time upon reconsideration on May 30, 2006. (Tr. 84.) Claimant then filed a timely request for a hearing before an Administrative Law Judge ("ALJ") on June 8, 2006. (Tr. 84.) The hearing took place on April 30, 2007, via video teleconference between Evanston, Illinois and Rockford, Illinois, before ALJ Daniel Dadabo. (Tr. 84.) Claimant appeared and testified in Rockford with her attorney present. (Tr. 84.) Vocational expert ("VE"), James Radke, also testified before the ALJ. (Tr. 84.) The hearing was continued in order to obtain additional medical evidence and to retain the services of a medical expert. (Tr. 84.)

A supplemental hearing took place on July 23, 2007, via video teleconference between Evanston, Illinois and Rockford, Illinois, before ALJ Daniel Dadabo. (Tr. 84.) Claimant appeared and testified in Rockford with her attorney present. (Tr. 84.) ME Ellen Rozenfeld, Psy.D., and VE, William Newman, also testified before the ALJ. (Tr. 84.)

On October 23, 2007, the ALJ held that Claimant was not disabled and denied her claim for DIB. (Tr. 95.) The ALJ's decision is considered the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1455, 416.1481. Claimant now files a complaint in this Federal District Court, seeking judicial review under 42 U.S.C. § 405(g).

III. Background

Claimant was born on April 12, 1970, and was thirty-seven years old at the time of the supplemental hearing. (Tr. 42.) Claimant stood five feet and six inches tall, and weighed approximately 335 pounds when she appeared in front of the ALJ. (Tr. 14.) At the time of the hearing, Claimant resided in Rockford, Illinois with her husband and son. (Tr. 42-43, 335.) Claimant completed high school and took a course at Rock Valley College. (Tr. 43.)

Claimant's main previous work was as a CNA. (Tr. 48.) The VE present at the hearing which took place on April 30, 2007, reported the CNA job as a medium semiskilled profession. (Tr. 69.) Claimant more recently worked as a caregiver for an elderly Alzheimer's patient approximately six hours per week, but the ALJ determined that this did not constitute past relevant work. (Tr. 42, 70.)

At the hearing which took place on April 30, 2007, Claimant testified that she could dust and do dishes if she had to, but most of the time her son would do them. (Tr.

53.) She also stated that she could not vacuum or do the laundry and her husband does the family shopping. (Tr. 49, 53.) Claimant testified that she spends the average day making sure her son is ready for school, taking him to the bus or driving him to school, reading, laying down, making phone calls, and taking care of things around the house. (Tr. 51.) When Claimant takes her son to school, it is a 20 minute drive both directions. (Tr. 53.) Claimant stated that she likes to read newspapers, autobiographies, and the bible. (Tr. 52.) When questioned about the people with whom she speaks on the phone, Claimant stated that she had a lot of friends to talk to, most of whom she has known for a long time. (Tr. 52-53.)

The VE in the initial hearing was given the following hypothetical:

".a person able to stand and walk two hours out of eight. Lift and carry up to 10 pounds, that would be occasionally. We'll say five pounds frequently. The rest of the time they're able to sit six hours out of eight. We probably want to have level work surfaces. Let's say that I'm talking about unskilled jobs that are routine and repetitive. Do not require judgment and -- there's no extended communication with other workers. In other words, you might pass them in the hallway but you're not going to have to speak with them for very long." (Tr. 70-71.)

When asked if such a person would be able to return to her past relevant work, the VE said she could not. (Tr. 71.) The VE testified that there was work that such a Claimant could perform including general office clerk, bookkeeping clerk, order clerk, courier, and machine operator. (Tr. 71-73.) The VE indicated that nine days of absenteeism per year would be tolerated. (Tr. 74.) However, four to twelve hours off task per month on an unscheduled basis would not be consistent with competitive employment, and the Claimant would not be allowed to lie down on the job. (Tr. 74-75.) The VE also stated that a person going through emotional lows where she may not relate appropriately to her supervisor or co-workers on a recurring basis would not be accommodated. (Tr. 75.) He further stated that the order clerk and accounting clerk positions would require extended periods of sitting. (Tr. 76.)

At the Supplementary hearing which took place on July 23, 2007, the ME testified that the Claimant would be able to tolerate customary work pressures eight hours a day, five days a week in some restricted setting where she would not have to have ongoing interaction with other people. (Tr. 23.) The ME further testified that the Claimant is able to withstand the pressures of simple and routine work related activities, and the file evidence would suggest to him that she should be able to perform operations of a simple routine nature on a sustained basis. (Tr. 24, 27.) When asked if the Claimant is likely to have brief episodes of decompensation where she might have to miss work one or twice a month, the ME responded that he could not say but given her subjective sense of the symptoms and how she has reported things it is a possibility. (Tr. 28.)

The VE at the Supplemental hearing was given the following hypothetical:

"Assume a younger person with a [high school] education, this work background, this skill set.And I said assume this person is basically limited to sedentary work on level work surfaces. And when I say sedentary work,., I'm talking about standing and walking two hours out of eight, sitting six hours out of eight. Lifting and carrying no more than 10 pounds occasionally, five pounds frequently. I had said that the individual from the health standpoint of mental functioning probably had to have unskilled tasks of a routine and repetitive nature that did not involve judgment, interaction with other workers, public contact. And when I say no interaction with other workers I'm talking about extended oral or written communication." (Tr. 30-31.)

The VE was then asked if there were any unskilled jobs which the Claimant could perform. (Tr. 31.) The VE stated that jobs were available including sorter and bench assembler. (Tr. 32.) There would not be any erosion of these jobs if the individual had to use a cane for balance. (Tr. 32.) The VE further testified that generally a person may not be absent more than one day per month or twelve days per year. (Tr. 32.) If a person were to be absent at least eight times a month it would totally erode the availability of the position. (Tr. 32.) These positions would generally not be able to support someone who would have to leave the work station for 30 to 60 minutes at a time. (Tr. 33.) Realistically only five to ten minute intervals of lost focus or concentration would be tolerated. (Tr. 33.) The VE further stated that one or two occasions of the individual going through emotional lows where she is not able to respond to supervisors appropriately or cooperate with co-workers could be tolerated, but if it is something that is repeated it would not be tolerated. (Tr. 34.)

IV. Medical History

1. Bipolar Disorder, Social Anxiety, Depression, and OCD

On July 1, 2003, Claimant underwent a 15 minute consultation regarding bipolar disorder. (Tr. 251.) Dr. Jeffrey S. Royce, M.D., noted that Claimant reported feeling more depressed, having low energy, and crying more. (Tr. 251.) Dr. Royce assessed the Claimant as having bipolar disorder with a depressed phase. (Tr. 251.) On a recheck of her bipolar disorder on August 8, 2003, Dr. Royce noted that Claimant was not following any of the recommendations for her medical therapy. (Tr. 250.) He further noted that Claimant felt her moods were good and she wasn't depressed. (Tr. 250.)

On August 29, 2003, Dr. William J. Giakas, M.D., diagnosed Claimant with Social Anxiety Disorder and Major Depression Disorder, Recurrent, Severe. (Tr. 259.) During a follow-up on November 12, 2003, Claimant rated herself a 10/10 severity on most items of the PSQ self-rating scale, but Dr. Giakas noted her affect as friendly and personable. (Tr. 273.) He further noted that the Claimant had no plans of harming herself and yet she still rated herself a 10/10 on that dimension as well. (Tr. 273.)

At her next follow-up, on December 12, 2003, Claimant rated her level of depression at 9/10 severity, anxiety 9/10 severity, anergia 7/10 severity. (Tr. 272.) However, Dr. Giakas noted that her affect is not nearly as depressed as her self-rating seems to suggest. (Tr. 272.) On January 12, 2004, Dr. Giakas noted that the Claimant reported increased depression in the absence of any clear identifiable stressors. (Tr. 272.) Dr. Giakas further reported that she is not tearful and does not appear agitated, anxious, or distraught. (Tr. 272.)

On January 26, 2004, Claimant asked Dr. Giakas if he thought she would be able to receive disability. (Tr. 271.) He told Claimant that they had only met four times and have not had enough time to work on her problem. (Tr. 271.) Dr. Giakas also noted that Claimant admitted she felt better overall compared to her last visit. (Tr. 271.) Claimant had some intermittent thoughts of wishing she were dead but was not suicidal. (Tr. 271.) Claimant met with Dr. Giakas again on March 3, 2004. (Tr. 270.) He noted that Claimant's condition seemed to deteriorate since the last visit when he told her he would not be able to support her disability claim. (Tr. 270.) Claimant stated that she had been irritable, depressed, and had had passive thoughts of wishing she were dead with no active plans. (Tr. 270.)

On May 10, 2004, Claimant again met with Dr. Giakas. (Tr. 269.) Claimant's mood was generally stable and euthymic and her affect is bright and reactive. (Tr. 269.) Dr. Giakas further noted that her mood disorder was under good control and diagnosed Claimant with Social Anxiety Disorder and Major Depressive Disorder, Recurrent, in partial remission. (Tr. 269.) On August 23, 2004, Dr. Giakas reported that Claimant's mood remains moderately depressed with an average 5/10 severity. (Tr. 267.)

On October 13, 2004, Dr. Giakas noted Claimant to be more depressed, anxious, and sometimes agitated since her mother died last month. (Tr. 266.) She was not suicidal and her affect was tearful but pleasant and cooperative. (Tr. 266.) On November 15, 2004, Dr. Giakas reported substantially similar results. (Tr. 266.) Upon follow-up, on December 28, 2004, Dr. Giakas stated that Claimant's mood had been very depressed but also stated that she rated herself on the PSQ as much more severely symptomatic than she appeared. (Tr. 265.)

On February 8, 2005, Claimant's mood was depressed and anxious. (Tr. 265.) Claimant rated every symptom a 10/10 severity and Dr. Giakas stated that she seemed to be exaggerating her symptomology. (Tr. 265.) When Dr. Giakas confronted her about the high rating she gave herself for suicidal ideation, she admitted that she felt like she wished she were dead "once in a while" but she had no active plans. (Tr. 265.)

Claimant met with Dr. Giakas again on March 15, 2005. (Tr. 264.) Dr. Giakas reported Claimant was still feeling anxious, but her affect was not as distraught, agitated, or withdrawn as it had been. (Tr. 264.) Four subsequent evaluations produced substantially similar findings. (Tr. 261-63.) During a follow-up on October 26, 2005, Claimant stated that she was beginning to feel more relaxed and feel much better. (Tr. 261.) Her affect was much less distraught, she appeared calm, and her thinking was rational. (Tr. 261.)

On December 13, 2005, Dr. Giakas reported that Claimant had persisting anxiety, particularly in crowded public places. (Tr. 260.) The anxiety tended to create panic symptoms and she had unrealistic fears. (Tr. 260.) Her thoughts were goal-oriented, her memory was intact, and she was not suicidal. (Tr. 260.)

Upon referral, Dr. John L. Peggau, Psy.D., a psychological consultant, spent approximately 45 minutes with the Claimant. (Tr. 282.) Dr. Peggau noted that she was fairly dramatic and unintentionally exaggerated her symptoms and her affect. (Tr. 281.) Although the Claimant did mention shaking during the evaluation, Dr. Peggau noted that it was only her right hand and it did not appear to be physiologically based. (Tr. 281.) Claimant denied any history of hospitalizations other than having her son. (Tr. 281.) Claimant's sensorium and mental capacity were alert in consciousness and she was appropriately oriented. (Tr. 281.) Dr. Peggau further noted that the Claimant was able to understand, remember, sustain concentration and persist in tasks. (Tr. 282.) He reported that the Claimant was able to interact socially and adapt to work settings. (Tr. 282.) Dr. Peggau also indicated that Claimant's level of anxiety is fairly manageable and it may be therapeutic for her to find ongoing employment on a full-time basis. (Tr. 282.) Claimant was unable to complete the serial seven subtraction from 100. (Tr. 281.) Claimant also calculated that 4 x 6 = 18 but after being refocused she was able to calculate 2 x 4, 3 x 5, and 7 x 7. (Tr. 281.) Dr. Peggau further noted that the Claimant was able to manage finances. (Tr. 281.) In his final diagnosis, Dr. Peggau found Claimant to have Anxiety Disorder, NOS with somatic features, largely exaggerated, and Major depression, Moderate. (Tr. 281.)

On March 3, 2006, Dr. Giakas stated that the Claimant's mood remained very depressed and anxious. (Tr. 289.) Claimant did not appear agitated and denied suicidal ideation. (Tr. 289.) Dr. Giakas diagnosed the Claimant with Bipolar II Disorder and Social Phobia. (Tr. 289.) On March 31, 2006, Dr. Giakas reported that the Claimant was less depressed but continued to have moderate anxiety. (Tr. 289.)

On May 2, 2006, Dr. Giakas noted that Claimant continued to have fluctuations in her level of anxiety, but complained predominantly of ongoing, chronic worry and ruminations about things that are really not worth worrying about in her own opinion. (Tr. 285.) Claimant said she was planning on mowing her lawn that day and stated that she likes to get outside the house when there is nice weather because she tends to have more difficulty and increased depression when she is stuck inside the house. (Tr. 285.)

On May 22, 2006, Zella V. Moore, RNNP, reported that the Claimant was complaining of increased anxiety, but she said she was doing okay. (Tr. 320.) Claimant continued to have ruminative thoughts and other worries. (Tr. 320.) At a follow-up evaluation on June 29, 2006, Dr. Giakas noted Claimant stated she had high levels of anxiety and depression and persisting anergia. (Tr. 321.) Claimant said she sleeps well, is not suicidal, and has no delusions or hallucinations. (Tr. 321.) On July 3, 2006, Claimant underwent a reassessment with Nurse Moore. (Tr. 321.) Nurse Moore reported that Claimant's mood was moderately depressed and irritable. (Tr. 321.) Claimant was complaining of feeling increased anxiety, low energy, decreased sleep, decreased concentration, decreased appetite, and decreased libido. (Tr. 321.) Claimant had multiple sores on her left forearm where she had picked at her skin while she was agitated. (Tr. 321.) Claimant was instructed to discontinue Ambien CR and Abilify, reinitiate Seroquel, and decrease Paxil. (Tr. 321.)

On July 17, 2006, Nurse Moore reported that the Claimant felt much better following the medication adjustments. (Tr. 324.) Her mood continued to be mildly depressed with moderate anxiety but her affect was brighter. (Tr. 324.) Nurse Moore further noted that the Claimant's concentration and focus were greatly improved. (Tr. 324.) During the month of August, Nurse Moore reported substantially similar findings but noted that ...

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