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Pascente v. Colvin

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

May 5, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


SHEILA FINNEGAN, Magistrate Judge.

Plaintiff James Pascente seeks to overturn the final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416, 423(d), 1381a. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 2 8 U.S.C. § 636(c), and after careful review of the record, the Court now affirms the Commissioner's decision.


Plaintiff applied for SSI on November 23, 2009 and DIB on January 5, 2010, alleging in both applications that he became disabled on September 2, 2008 due to bipolar disorder and paranoia, and later adding complaints of neuropathy and pain in his left leg, back pain and depression. (R. 162-66, 192, 246, 264). The Social Security Administration denied the applications initially on April 7, 2010, and again upon reconsideration on September 8, 2010. (R. 94-102, 107-14). Plaintiff filed a timely request for hearing and appeared before Administrative Law Judge Judith S. Goodie (the "ALJ") on July 14, 2011. (R. 53). The ALJ heard testimony from Plaintiff, who was represented by counsel, as well as from vocational expert Richard T. Fisher (the "VE"). Shortly thereafter, on August 26, 2011, the ALJ found that Plaintiff is not disabled because there are a significant number of light jobs he can perform. (R. 32-46). The Appeals Council denied Plaintiff's request for review, (R. 1-3), and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner.

In support of his request for remand, Plaintiff argues that (1) the ALJ failed to account for all of his mental limitations, resulting in a flawed RFC; (2) the flawed RFC led to an incomplete hypothetical question to the VE, compromising the vocational testimony; (3) the ALJ provided no basis for finding him capable of performing light work; and (4) the ALJ erred in finding that he would only be off task for four minutes per hour. As discussed below, the Court finds no merit to any of these arguments.


Plaintiff was born on May 14, 1959, and was 52 years old at the time of the ALJ's decision. (R. 162). He completed the 10th grade and has worked at various times as a sandblaster, mechanic, park attendant/janitor, truck driver and telemarketer. (R. 60, 198, 223-27). Most recently, Plaintiff worked for seven years as a mailer for the Chicago Sun Times, inserting advertising into the paper and piling bundles onto pallets. (R. 193, 194, 228). He was fired from the mailer job on September 2, 2008 because he hit someone during an altercation. (R. 58, 193).

A. Medical History

At some point in 2007, a bed frame fell on Plaintiff's leg, completely severing his left Achilles tendon. (R. 301). The record does not contain any related medical documents, but Plaintiff told consultative examiner Alexander Panagos, M.D., that he had surgery to repair the damage. ( Id. ). Plaintiff did not undergo any formal rehabilitation or physical therapy at that time and continued to work until he was fired on September 2, 2008. (R. 73, 301). More than a year later, on September 29, 2009, he applied for disability benefits.

The first medical note in the record is from Kenneth M. Levitan, M.D., who conducted a psychiatric evaluation of Plaintiff on March 16, 2010 for the Bureau of Disability Determination Services ("DDS"). (R. 278-81). Plaintiff complained of hallucinations (hearing people calling his name and doorbells ringing) as well as paranoia, and reported that an alcohol counselor he saw in 2008 thought he may have bipolar disorder.[1] He also discussed having mood swings, with lows lasting about an hour and highs lasting about two hours. (R. 278). Plaintiff stated that he is almost always depressed, and Dr. Levitan noted that he was sad throughout the interview. (R. 278-79). Nevertheless, Plaintiff conceded that he had never received any psychiatric care or counseling and was not taking prescription medications for any mental condition. ( Id. ).

Plaintiff told Dr. Levitan that he gets along with other people, cooks, cleans, washes himself and manages his own finances. Despite a history of drug and alcohol abuse, he had been "totally abstinent" for a year and a half. (R. 279). On examination, Plaintiff "seemed quietly sad and anxious in a controlled way, " and had difficulty concentrating. His recent and remote memory were both fair and he showed limited insight into problems, but his judgment was good. (R. 280). Dr. Levitan diagnosed Plaintiff with mixed anxiety-depression, past chronic alcoholism and chronic alcohol abuse, past chronic drug abuse (cocaine), and status post injured left leg with some residual numbness around the left ankle. Dr. Levitan opined that Plaintiff can perform "simple and routine tasks, " communicate with coworkers and supervisors, and "follow and understand instructions, " but "would have difficulty handling regular work pressure and stress" and "could not be relied on to retain" instructions. (R. 281).

A little less than two weeks later, on March 31, 2010, Elizabeth Kuester, M.D., completed a Psychiatric Review Technique of Plaintiff, also at the behest of DDS. (R. 282-94). Dr. Kuester diagnosed Plaintiff with mixed anxiety/depression, (R. 285), and substance addiction disorder in remission. (R. 290). She found that Plaintiff has mild restriction of activities of daily living; mild difficulties maintaining social functioning; moderate difficulties in maintaining concentration, persistence or pace; and no episodes of decompensation. (R. 292). Based on Dr. Levitan's assessment, Dr. Kuester concluded that Plaintiff's complaints of "some very severe psych[iatric] s[ymptoms] are not well supported by his lack of t[reatment]." (R. 294).

In a Mental Residual Functional Capacity ("RFC") Assessment completed the same day, Dr. Kuester opined that Plaintiff is moderately limited in: the ability to understand, remember and carry out detailed instructions; the ability to maintain attention and concentration for extended periods; 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; the ability to interact appropriately with the general public; and the ability to set realistic goals or make plans independently of others. (R. 296-97). In Dr. Kuester's view, Plaintiff can "learn and perform simple, routine tasks adequately with ordinary supervision." (R. 298).

On June 20, 2010, Plaintiff started seeing Nasreen N. Ansari, M.D., an internist with Community Health Network. Plaintiff complained of heel-to-toe numbness in his left foot but denied experiencing any pain that day. Dr. Ansari observed a scar on Plaintiff's left lower leg but it does not appear that she prescribed any related medication at that time. The doctor did, however, prescribe Lisinopril for Plaintiff's hypertension. (R. 338).

Nine days later, on June 29, 2010, Dr. Panagos performed his Internal Medicine Consultative Examination of Plaintiff for DDS. (R. 301-05). Plaintiff complained of worsening auditory hallucinations and depression for the previous two years with intermittent suicidal thoughts. He also discussed his past drug and alcohol abuse, as well as the injury to his Achilles tendon. (R. 301). Plaintiff told Dr. Panagos that he experiences pain with "weight-bearing and ambulation" that shoots from his left ankle to his pinky toe, and he often loses his balance when his left leg buckles. (R. 302). He rated the pain at a level of 7 out of 10 and denied being able to run, crouch, squat, kneel or bend, but said he can walk 50 feet or up 20 stairs without an assistive device. ( Id. ).

Dr. Panagos noted that during the examination, Plaintiff was cooperative and exhibited a good attitude and demeanor. ( Id. ). He had full range of motion in all joints, including the left ankle, and he was able to bear his own weight and walk with a normal gait without the use of an assistive device. (R. 303). Plaintiff also had no difficulty getting on or off the exam table or getting up from a chair, and he was able to heel and toe walk and do tandem gait. (R. 303-04). Dr. Panagos diagnosed (1) "Auditory Hallucinations with Depression with no formal diagnosis"; and (2) "Completely Severed Left Lower Extremity Achilles Tendon involving tendon repair." (R. 304).

Plaintiff's next examination for DDS was a July 14, 2010 Psychiatric Evaluation with Henry Fine, M.D. (R. 307-10). Plaintiff told Dr. Fine that he was "being treated" for "[b]ad stress" and hallucinations (constantly hearing people call his name and a doorbell ringing), though he acknowledged he was not taking any related medication. (R. 307, 308). He complained of sleep disturbance but then said he was getting about six hours per night; he described his energy as "okay"; and he mentioned some "suicidality as a teen" which he attributed to drug use. (R. 307). Dr. Fine described Plaintiff as having an appropriate affect, an even mood "with some range, " and no signs of "delusions, confusions or hallucinations." (R. 308-09). He diagnosed major depression, recurrent, with anxiety and mild psychotic features, and noted that Plaintiff was not receiving any treatment for his psychiatric problems, though he "apparently self medicate[d]" with drugs and alcohol in the past. (R. 310). Dr. Fine stated that Plaintiff seemed to minimize his mental problem, and indicated that he "shows immediate memory deficit, [and] problems with fund of information." ( Id. ).

Plaintiff returned to Dr. Ansari on July 23, 2010 for more hypertension medication. (R. 337). The following month, on August 17, 2010, David Mack, M.D., determined that Plaintiff's claim for disability benefits based on his left Achilles tendon repair should be denied. (R. 329). Dr. Mack explained that Dr. Panagos's examination revealed no loss of motion in the ankle or any other area, and Plaintiff was able to walk without an assistive device, do tandem gait, heel and toe walk, and get up from a chair and onto the exam table with no difficulty. In light of these objective medical findings, Dr. Mack found Plaintiff's complaints of severe limitations to be only partially credible. (R. 331).

Shortly thereafter, on August 28, 2010, Donna Hudspeth, Psy.D., completed a second Psychiatric Review Technique of Plaintiff for DDS. (R. 311-23). Dr. Hudspeth diagnosed Plaintiff as having major depression, recurrent, with anxiety and mild psychotic features, (R. 314), and a substance abuse disorder in remission. (R. 319). She agreed with Dr. Kuester's assessment that Plaintiff has mild restrictions in activities of daily living, mild difficulties in maintaining social functioning, and moderate difficultiesin maintaining concentration, persistence or pace, but added that Plaintiff had also suffered one or two episodes of decompensation. (R. 321). Notably, Dr. Hudspeth did not explain the basis for finding any episodes of decompensation, and she subsequently concluded that "there is a lack of treatment to support [Plaintiff's] alleged limitations." (R. 323).

In a Mental RFC Assessment completed the same day, Dr. Hudspeth opined that Plaintiff is moderately limited in: the ability to understand, remember and carry out detailed instructions; the ability to interact appropriately with the general public; and the ability to set realistic goals or make plans independently of others. (R. 325-26). Dr. Hudspeth summarized her findings by stating that Plaintiff "is able to understand, remember and perform simple two and three step tasks"; communicate with a supervisor and coworkers but not the public; make "ordinary work related decisions"; and "adapt to work schedules and the structure of a work routine." (R. 327).

Less than a week later, on September 3, 2010, Plaintiff went to Dr. Ansari for a check of his blood pressure, which was "much improved" with medication. Plaintiff reported taking Tylenol for his leg pain and newly complained of panic attacks. Dr. Ansari prescribed lorazepam to help with the anxiety. (R. 336). When Plaintiff returned to Dr. Ansari on December 3, 2010, he continued to complain of panic attacks and nerve pain in his left leg. Dr. Ansari switched Plaintiff to Valium for the panic attacks and prescribed Neurontin for the pain. (R. 335). Plaintiff saw Dr. Ansari again on April 5, 2011 for refills of his medications. He was "doing well" at that time ...

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