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Christopher J. Bartucci v. Michael J. Astrue

December 13, 2012

CHRISTOPHER J. BARTUCCI, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Judge John W. Darrah

MEMORANDUM OPINION AND ORDER

Plaintiff Christopher J. Bartucci suffers from cystic fibrosis and other related maladies and sought disability insurance benefits under 42 U.S.C. § 423. His claim for disability benefits was initially denied by the Social Security Administration; thereafter, his claim was reconsidered by an Administrative Law Judge ("ALJ"), who conducted a hearing and subsequently denied Bartucci's claim for disability benefits. The Social Security Administration Appeal's Council denied Bartucci's request to review his claim. Bartucci seeks judicial review of the decision and filed a motion for summary judgment, requesting the Commissioner's decision be reversed and remanded. The Commissioner also filed a motion for summary judgment, seeking to have the Commissioner's decision affirmed. For the reasons set forth below, Bartucci's motion is denied; the Commissioner's motion is granted; and the Commissioner's final decision is affirmed.

BACKGROUND

Bartucci filed a Title II application for disability insurance benefits and a period of disability on August 28, 2008. (Admin. Record at 15.) Bartucci claimed the onset of his disability was on June 2, 2006. (Id.) Bartucci's disability claim was initially denied on December 30, 2008, and denied again upon reconsideration on May 11, 2009. (Id.) Bartucci requested a hearing, and an administrative hearing was conducted on May 25, 2010, before ALJ Marlene R. Abrams. (Id.) After consideration of all evidence presented, the ALJ determined Bartucci was not under a disability within the meaning of 42 U.S.C. § 423 from June 2, 2006, through August 24, 2010, the date of the ALJ's decision. (Id.) The Social Security Administration's Appeals Council denied further review of Bartucci's claim. Thus, the ALJ's decision is the final decision of the Commissioner and is therefore ripe for review. See 20 C.F.R. § 404.981; Eads v. Secretary of Dept. of Health and Human Services, 983 F.2d 815, 816 (7th Cir. 1993).

Medical Facts

Bartucci was born on July 9, 1967, and diagnosed with cystic fibrosis at age one. (Admin. Record at 312.) Bartucci also suffers from chronic pancreatic insufficiency, radiological abnormalities with thickening of the colon wall, and diabetes mellitus. (Admin. Record at 17.) He was terminated from his last job on June 2, 2006, due to excessive absences. (Id. at 39.) Prior to this termination, Bartucci held a number of different positions, including positions as an automobile salesman, a truck driver, an armored vehicle driver, and a dock worker. (Id. at 88-89.)

Bartucci was admitted to the hospital in November 2007, complaining of lower abdominal pain. (Id. at 263.) Bartucci stated the pain was "on and off" for the previous six months; thereafter, he was diagnosed with acute appendicitis and had his appendix removed. (Id. at 263, 265.) Bartucci was examined by a physician in December 2008, and the doctor then noted that Bartucci reported he was able to walk for only about ten minutes, did not use a cane, lift weights up to ten to twenty pounds, and had no problem with sitting. (Id. at 313.) Bartucci further indicated in that examination that he was able to clean his own house, drive, and do his own shopping. (Id.) Bartucci reported to the physician in December 2008 that he had "recurrent diarrhea and foul smelling stool usually about two days of the week with 5 bowel motions with each episode." (Id. at 312.)

In another medical evaluation in December 2008, Dr. Richard Bilinsky assessed Bartucci's functional capacity and determined Bartucci's impairments did not result in any limits on his physical exertion, posture, manipulation, vision, or communication abilities. (Id. at 294-301.) Because of Bartucci's cystic fibrosis and related difficulty breathing, Dr. Bilinsky indicated that Bartucci should avoid concentrated exposure to extreme heat, cold, and humidity; he further noted Bartucci should avoid even moderate exposure to fumes, odors, dusts, gases, or poor ventilation. (Id. at 298.) Dr. Bilinksy reported that Bartucci did not agree to undergo additional testing and refused nebulizer treatment for his cystic fibrosis. (Id. at 301.) Dr. Bilinsky's report of Bartucci's condition was affirmed by Dr. Ernst Bone, a state agency consulting physician, in May, 2009. (Id. at 319-20.)

Bartucci returned to the emergency room in September 2009, complaining of intermittent abdominal pain for the previous month and more severe pain immediately prior to the hospital visit. (Id. at 322.) Bartucci denied having diarrhea or constipation at that time. (Id.) He rated his pain an eight out of ten in severity and stated that the pain was intermittent, sometimes lasting for hours at a time. (Id. at 324.) Bartucci was to be admitted for further gastroenterology evaluation but refused to be admitted to the hospital, against the medical advice of the treating physician.*fn1 (Id. at 321.)

Administrative Hearing and Decision A hearing was conducted on May 25, 2010, before ALJ Abrams in Orland Park, Illinois. Three individuals testified at the hearing: the plaintiff, Christopher Bartucci; Dr. Ashok G. Jilhewar, an impartial medical expert; and Michelle M. Peters, an impartial vocational expert.

Bartucci testified regarding his abdominal pain and his general fatigue. (Admin. Record 49-63.) Bartucci also spoke about his day-to-day activities, including his ability to perform his own personal grooming and to occasionally prepare meals. (Id. at 49.)

Dr. Jilhewar also provided testimony and opined that Bartucci's condition, including his cystic fibrosis, did not meet or equal the Commissioner's Listing of Impairments at 20 CFR § 404.1525, Subpt. P, Appx. 1, § 3.04, which describes the conditions necessary for a cystic fibrosis impairment to prevent an individual from doing any gainful activity. Dr. Jilhewar further testified that Bartucci's condition failed to meet the criteria for the Section 9.08 listing for diabetes mellitus. (Admin. Record at 18.)

The vocational expert testified regarding Bartucci's ability to perform various jobs and indicated that based on Bartucci's condition, he would be unable to perform his past occupations, including his positions as automobile salesman and truck driver. (Id. at 90.) The vocational expert testified that Bartucci would be able to perform the occupations of a cashier, an information clerk, and an inspector. (Id. at 92-93.) However, she indicated that if a person in one of those positions was unable to work at least 85 percent of the workday, the individual would likely be unable to maintain such a position. (Id. at 93-94.)

Following the administrative hearing, on August 24, 2010, the ALJ issued a decision, determining Bartucci was not under a disability within the meaning of the Social Security Act from June 2, 2006 through the date of the decision. The ALJ followed the requisite five-step analysis (as further discussed below) to come to that conclusion. First, the ALJ determined that Bartucci had not engaged in substantial gainful activity since June 2, 2006, the alleged onset date. (Id. at 17.) At step two, the ALJ determined that Bartucci had severe impairments under the Social Security Act, including cystic fibrosis, chronic pancreatic insufficiency, radiological abnormalities, and diabetes mellitus. (Id.) In step three of the analysis, the ALJ concluded Bartucci did not have an impairment or combination of impairments meeting (or medically equaling) one of the listed impairments in 20 CFR § 404.1525, Subpt. P, Appx. 1. Thereafter, the ALJ considered Bartucci's residual functional capacity, pursuant to 20 CFR § 404.1520(e), and determined Bartucci had the capacity to perform light ...


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