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Poremba v. Colvin

United States District Court, Seventh Circuit

January 2, 2014

DAVID E. POREMBA, Plaintiff,
CAROLYN W. COLVIN, Secretary of Social Security, Defendant.


IAIN D. JOHNSTON, Magistrate Judge.

David E. Poremba ("the Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Respondent, Carolyn W. Colvin, Acting Commissioner of Social Security ("Commissioner"), [1] denying the Claimant's application for disability insurance benefits under Title II of the Social Security Act ("SSA"). This matter is before the Court on cross-motions for summary judgment. (Dkt. ##22, 30).

The Claimant argues that the Commissioner's decision denying his application for benefits should be reversed or remanded for further proceedings because the Administrative Law Judge's ("ALJ") decision is not supported by substantial evidence and is contrary to law. The Commissioner argues that the ALJ's decision should be affirmed because it is supported by substantial evidence. For the reasons set forth more fully below, the Claimant's motion for summary judgment is denied, and the Commissioner's motion is granted.


A. Procedural History

The Claimant filed an application for disability on October 20, 2006, alleging a disability onset date of February 12, 2005. R. 261-66. On February 7, 2007, this application was initially denied, and was denied upon reconsideration on March 30, 2007. Dkt. #10, p. 2. On April 5, 2007, the Claimant filed a request for a hearing. Dkt. #10, p. 2. On April 1, 2008, the ALJ conducted a hearing in Evanston, Illinois. Dkt. #10, p. 2. The Claimant and Medical Expert ("ME") Daniel Schiff, M.D. testified at the hearing. R. 79. Vocational Expert ("VE") James Radke was present during the hearing but did not testify. R. 78-79.

On April 16, 2008, the ALJ issued a decision denying the claim for benefits. R. 132-140. The Claimant requested the Appeals Council review the ALJ's decision. On December 18, 2008, the Appeals Council remanded the matter to the ALJ to consider and address several issues. R. 141-43.

On August 6, 2009, the ALJ held another hearing. R. 13. Before this hearing, the Claimant amended his application to limit the claim to a closed period. Specifically, the Claimant sought benefits for the closed period beginning on February 12, 2005 and ending on January 27, 2009, which was the day before he began full-time employment with Walmart. R. 17, 261, 344. Again, the Claimant and Dr. Shift testified. R. 13-14. And again, although present, VE Radke did not testify. R. 13-14. On November 4, 2009, the ALJ issued another decision, again denying the claim for benefits. R. 144-64. The Claimant filed another request for review with the Appeals Council. But, on February 8, 2011, the Appeals Council denied the review, making the ALJ's decision the final decision of the Commissioner. Dkt. #10, p. 2-3. Thereafter, the Claimant filed this appeal pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony

1. April 1, 2008 Hearing ("First Hearing")

a. Claimant

At the first hearing, the Claimant testified that he lived with his wife in the Woodstock, Illinois area, and that his children lived nearby with his grandchild. R. 100. He would babysit his grandchild with his wife. R. 101.

The Claimant testified that he had last worked at a pet rescue facility in February of 2005. R. 84. He worked full time there from October 2004 to February 2005, but left because of "extreme difficulties with... the way the operations were being run and handled." R. 85. The Claimant testified that he sought treatment due to gambling and drinking problems. R. 86. The Claimant testified that although he had been diagnosed with hypertension and diabetes, those conditions were "under fairly good control." R. 86. According to the Claimant, his hypertension and diabetes were not the reason why he could not work. R. 87. But, according to the Claimant, he was still suffering from symptoms from the diabetes, including tingling in his feet and hands. R. 87, 91-92. The Claimant assumed the tingling was caused by the diabetes. R. 93. At the time of the first hearing, the tingling did not impede or hinder the Claimant's ability to engage in activities. R. 93. According to the Claimant, he was "able to do what [he] needed to do." R. 94. The Claimant thought that his hypertension made him nervous, but he had no diagnosis that his hypertension and nervousness were correlated. R. 87-88.

The Claimant testified that he would fixate on issues and "would think about it over and over and over again." R. 89.

With regard to alcohol use, the Claimant testified that he last drank alcohol in May of 2007, which would have been about one year before the first hearing. R. 90.

The Claimant testified that he saw therapists because of his anger management issues, and he was prescribed medication that "helped [him] better cope with the anxieties." R. 94-95. The Claimant testified that he needed lithium to control his extreme emotions. R. 101. According to the Claimant, he has mood swings. During the low times he felt like his stomach was churning; he would feel depressed, unhappy and sad. R. 102. During the high times, the Claimant testified that it felt like he "was right on target" and "meeting objectives." R. 103.

The Claimant discussed the verbal altercations he had with others, but that sometimes, such as an incident with a librarian, he was able to avoid the altercation. R. 97-98. According to the Claimant, he would yell at his windshield while driving when people did "something stupid in front of [him]." R. 99. But he never exited the vehicle to engage in a confrontation. R. 99. One time, the Claimant did yell at a friend who startled him when he was cutting grass. R. 100.

The Claimant testified about his renovations to his house, which is a 1904 farmhouse. R. 105. He also testified that he gardened a three by eight foot plot. R. 105-06. According to the Claimant, he would "play around with the house and garden." R. 106. He also tinkered with cars with a group of friends two to three times a week. R. 107. Additionally, he transported his father and babysat. R. 107.

When specifically asked why he could not work, the Claimant said that he had high emotions, anxieties and sleep problems. R. 108. He described his sleep problems as waking up for about an hour at night, which would then cause him to take about an hour nap during the day. R. 108. But he did not nap every day. R. 109. The Claimant also testified that he left jobs because he would become involved in disagreements at work. R. 109-17.

b. Medical Expert

At the first hearing, Dr. Schiff - a board certified psychiatrist - testified that he reviewed the exhibits and heard the Claimant's testimony. R. 117. According to Dr. Schiff, the Claimant was not suffering from a "medically determinable mental impairment." R. 119. But Dr. Schiff noted that the Claimant had "a drinking problem". R. 119. Dr. Schiff opined that the Claimant's use of alcohol was a significant issue that contributed the Claimant's other conditions. R. 120. Dr. Schiff also opined that the Claimant's behavior did not "fit a bipolar" condition and that the "anxiety" the Claimant described "sound[ed] more like worry." R. 120. When the ALJ pushed Dr. Schiff on the issue of whether the Claimant was bipolar, Dr. Schiff said he did not see the manifestations of that disorder. R. 120. Dr. Schiff believed that the Claimant was "relatively functional" and found nothing marked about the Claimant's behavior. R. 121. The ALJ specifically asked Dr. Schiff if there were any impediments to the Claimant working. R. 122. Dr. Schiff stated, "No. It might be that if he is in a supervisory capacity and is not respected, he'll lose his temper. It might be better not to be in a supervisory capacity." R. 122. Dr. Schiff again opined that the Claimant's alcohol abuse was a "significant contribution". R. 124. Dr. Schiff disagreed with the Claimant's treater regarding whether the Claimant's alcohol consumption contributed to the Claimant's limitations. R. 126-27.

2. August 6, 2009 Hearing ("Second Hearing")

At the August 6, 2009, hearing, the Claimant's attorney reiterated that the application was being amended to a closed period (from February 12, 2005 to January 27, 2009). R. 17.

a. Claimant

At the second hearing, the Claimant testified that he was currently taking Lotrel and Glyburide, which was prescribed by Dr. Salzman. R. 28. He was also taking Janumet, but his physician was changing the prescription to Metformin and Trilipix. R. 29.

At the time of the second hearing, the Claimant was living with his wife and working on his two-story home. R. 35-37. His house projects included painting the whole house over the course of a couple of months. R. 36, 38. He would spend anywhere between two and four hours each day painting the house. R. 37. Initially, the Claimant needed to prepare the house to be painted, including scraping and trim work. R. 37. Painting the house required the Claimant to work on a ladder. R. 37. The Claimant would lift "whatever [he] had to do." R. 51. He would also carry the ladder around and lift cans of paint. R. 52. In addition to painting his house, the Claimant also re-sealed his driveway, which took a total of five (5) hours. R. 38. When he re-sealed the driveway, he carried 4.75 gallon containers. R. 52.

The Claimant explained that he had started working at Walmart in January of 2009. He initially helped convert the store into a super center, after which time he was moved to the deli area. R. 29-30. During the conversion, the Claimant worked on his feet, reconfiguring shelving. R. 30-31. In the deli department, the Claimant cooks, slices meat, cleans and stocks the shelves. R. 31. While working in the deli department, the Claimant is on his feet. R. 32. On occasion, he is required to lift a box of chickens which weighs about 30 pounds. R. 32. Typically, he only lifts a pound of ham or a side of ham. R. 32. During the opening of the store, there was a lot of stress, some of which was caused by his supervisors who were also stressed. R. 32. According to the Claimant, his supervisors were rough and rude to the employees, including him. R. 33. The Claimant felt that he got along well with his co-workers and customers. R. 34. The Claimant said he had no problems "exploding" with customers. R. 35.

The Claimant testified that about one month before the second hearing, he drank alcohol, which was a watered down version of a vodka and tonic. R. 35. According to the Claimant, he would have one drink once a month. R. 35.

The Claimant also testified that he cared for his elderly father. R. 36. The Claimant also still tinkered with cars. R. 43.

The Claimant testified that he monitored his blood sugar and took readings four (4) times a week at different times of the day. R. 39. According to the Claimant, his hemoglobin level was also doing really well." R. 40. Additionally, his diabetes was improving, which increased his energy level and lowered his ...

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