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Nieves v. Colvin

United States District Court, N.D. Illinois, Eastern Division

February 13, 2014

JOHNNY NIEVES, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security.

MEMORANDUM OPINION AND ORDER

JOHN W. DARRAH, District Judge.

Plaintiff Johnny Nieves seeks to reverse and remand the Social Security Administration Commissioner's decision denying his claim for disability benefits. For the reasons explained below, Nieves's Motion is denied, and the Commissioner's final decision is affirmed.

BACKGROUND

On October 21, 2010, Nieves applied for Supplemental Security Income payments ("SSI"), alleging a disability onset date of May 1, 1998. (Administrative Record ("AR") 118, 287.) His application was denied by the Commissioner initially and on reconsideration. (AR 120-30.) Nieves then requested a hearing before an Administrative Law Judge ("ALJ"), which was held on April 13, 2012, after three previous postponements requested by Nieves related to issues of representation. (AR 35-117.) On July 18, 2012, the ALJ issued a decision finding Nieves not disabled. (AR 8-34.) The Appeals Council denied further review of Nieves's claim on October 16, 2012. (AR 1-4.) Thus, the ALJ's decision is the final decision of the Commissioner and is ripe for review. See 20 C.F.R. ยง 404.981; Eads v. Secretary of Health and Human Services, 983 F.2d 815, 816 (7th Cir. 1993).

Medical and Vocational Background

Nieves was born on September 5, 1966. (AR 44.) He currently lives with and is in the care of a friend. ( Id. ) In terms of education, Nieves has graduated from high school. ( Id. ) He last worked as a laborer in 2005. (AR 18.) He has two children. (AR 587.)

On December 20, 2005, Nieves was evaluated by Dr. Peter Biale relating to a past disability claim for a fractured left leg, and Dr. Biale documented a limp related to the injury but otherwise noted that Nieves was alert, oriented, and able to concentrate and maintain attention span. (AR 365-66.) Nieves was seen by Dr. Carlos Pedrera on May 24, 2007, with a complaint of feeling tired and weak with a lack of energy and feeling sad; Dr. Pedrera noted fatigue, substance abuse, depression, and umbilical hernia. (AR 375.) Nieves was admitted for 72 hours of detox related to heroin use on May 25, 2007. (AR 374.) He was then diagnosed with Hepatitis C on June 29, 2007. (AR 373.) Nieves was seen at the University of Illinois Medical Center at Chicago ("UIC"), and his depression was noted along with an improved mood as a result of medication. (AR 406.) He continued treatment at UIC for Hepatitis C through June of 2008 and was compliant with the addictions program. (AR 404.)

Nieves was admitted to St. Mary and Elizabeth Medical Center for five days on January 30, 2008 for depression. (AR 382, 411.) He returned on February 18, 2008, for follow-up based on his Chronic Hepatitis C virus ("HCV") infection and was documented as taking the following medications: Suboxone, Trazodone, Risperdal, Buspirone, Lexapro, and Afrin nasal spray. (AR 411.) There was concern expressed that starting interferon treatment for Hepatitis C could worsen his anxiety, so he was advised to continue treatment with Dr. Chung K. Chen for anxiety and depression and follow up in three months. (AR 412). Dr. Chen provided physician's progress notes related to Nieves, dated from May 2007 through June 2009. (AR 724-33.)[1] Nieves was also seen at St. Mary and Elizabeth Medical Center on July 6, 2009, for medication refills (while in custody of the Chicago Police Department), and the admission sheet listed his employment as short-order cook at Best Submarine. (AR 444.) The accompanying assessment documented no other medical complaints, a normal gait, good eye contact, coherent speech, and normal affect. (AR 445-48.)

Nieves was incarcerated in late 2009 for charges of burglary (AR 587), and the Department of Corrections medical chart listed the following medications: Risperdal, Sertraline, Trazodone, and ibuprofen. (AR 469.) He was also found physically fit to perform any type of work or recreation while incarcerated. (AR 575.) On December 21, 2009, Nieves received an initial psychiatric evaluation in prison, during which he reported mood symptoms, hearing voices for a number of years, crying spells, anxiety, irritability, and feelings of hopelessness when he developed depression. (AR 538.) Nieves disclosed two prior suicide attempts to the prison psychiatrist but denied any issues with appetite, energy, anhedonia, memory, concentration, or thoughts of hurting himself or others. (AR 587.) Based on this examination, Nieves was diagnosed with mood disorder not otherwise specified with psychotic features and a history of polysubstance abuse apparently in remission, and his medications were increased. (AR 588.) On the same day, there was also an x-ray taken of his left ankle, which showed a healed, fixated fracture of the distal fibula without displacement, and an old healed fracture of the distal tibia, with cortical thickening and central lucency in medial distal tibia, probably from old trauma. (AR 498.)

From January through April of 2010, Nieves was treated in prison for complaints of weight gain, constipation, cold intolerance, fatigue, lethargy, lack of motivation, aches and pains, and feeling depressed with mood swings and difficulty with concentration and memory loss. (AR 461.) He was also diagnosed with hypothyroidism, and he claimed to hear voices, although he later said that was not the case and that he only said that to get an appointment sooner. (AR 477.) The examiner noted that he was alert, cooperative, and fully oriented with ordered thoughts, and that Nieves reported that his medications were working well and that he was feeling better. ( Id. ) On March 31, 2010, Nieves stated that he felt fine, did calisthenics in prison, and worked out three times a week. (AR 460.) He was seen for follow-up psychiatric evaluations and medication management in July, September, and November of 2010 and reported improving symptoms and feeling happier. (AR 472-73, 578.)

On December 30, 2011, Nieves was evaluated by a state agency medical consultant, Mina Khorshidi, M.D., to prepare a physical residual functional capacity, taking into account his ankle injury, Hepatitis C, and hypothyroidism. (AR 542.) Dr. Khorshidi opined that Nieves could perform light work, carrying 20 pounds occasionally and 10 pounds frequently, could stand or walk for 6 hours in an 8-hour workday, could sit for 6 hours in an 8-hour workday, was unlimited in his ability to push and/or pull, had no postural limitations, no manipulative limitations, no visual limitations, no communicative limitations, and no environmental limitations. (AR 542-49.) On the same day, Nieves was evaluated for mental residual functional capacity and psychiatric review technique by Kyla King, Psy.D., taking into consideration Nieves's affective disorder under Section 12.04, personality disorder under 12.08, and substance addiction disorders under Section 12.09. (AR 550-67.) Dr. King opined that Nieves is moderately limited in the ability to carry out detailed instructions, maintain attention and concentration for extended periods, to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, in the ability to accept instructions and respond appropriately to criticism from supervisors, in the ability to respond appropriately to changes in the work setting, and to set realistic goals or make plans independently of others. ( Id. ) Based on this, Dr. King opined that Nieves had the ability to perform at least unskilled work. (AR 553.)

Nieves was examined on January 24, 2011, prior to his release from prison; the examiner noted that the medications were working well, provided a refill, and also noted that Nieves displayed good eye contact, normal speech, and good impulse control. (AR 577.) Nieves received another physical residual functional capacity assessment on March 4, 2011, with results corresponding to the previous assessment done on December 30, 2011. (AR 603-10.) He also received another mental residual functional assessment on the same day by Roger Rattan, Ph.D. Dr. Rattan opined that Nieves was: moderately limited in the ability to maintain attention and concentration for an extended period; moderately limited in the ability to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; moderately limited in the ability to accept instructions and respond appropriately to criticism from supervisors; and moderately limited in the ability to set realistic goals or make plans independently of others. (AR 611-24.) Dr. Rattan noted that Nieves was capable of performing basic work activities consistent with his abilities and interests. (AR 623.)

Nieves was examined at Stroger Hospital on July 20, 2011, for racing thoughts, paranoia, feeling sad, and auditory hallucinations, as a result of being out of his medications for the previous three months, and he was given a global assessment of functioning (GAF) score of 50-60. (AR 643.) At that time he also denied having any past suicide attempts. (AR 641.) He returned on September 28, 2011 for medication refills. (AR 650.) He returned again for medication refills on January 4, 2012, at which point he stated that he still had racing thoughts but no auditory hallucinations and indicated that the medicine was helping; Nieves declined a psychiatric evaluation at this time. (AR 668-69.)

He returned again to Stroger Hospital on February 17, 2012, and was seen by a psychiatrist, Ellen Tylkin, M.D. (AR 674.) He complained of forgetting things, hearing voices, having difficulty concentrating, getting angry for no reason, and worrying that something bad is going to happen when he goes outside; he also indicated that he had three past suicide attempts. ( Id. ) His medications at the time were Risperdal, Zoloft, Buspar, Trazodone, and Levothyroxine. ( Id. ) He told Dr. Tylkin he had no children. (AR 676.) Dr. Tylkin diagnosed him with major depressive disorder with psychotic features and ruled out generalized anxiety disorder; she assessed a GAF score of 40-50 and added a prescription for Clonazepam at bedtime. (AR 679.)

Administrative Hearing and Decision

Nieves was present at the September 7, 2011 hearing and requested a postponement. (AR 112.). There were also postponements requested during the November 16, 2011 hearing and the January 6, 2012 hearing. (AR 101, 92.) A hearing was conducted before ALJ James D. Wascher in Chicago, Illinois on April 13, 2013. Three individuals testified at the hearing: Nieves; Dr. Larry Kravitz, a psychological expert; and James Breen, ...


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