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Hudzenko v. Colvin

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

June 24, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.


SHEILA FINNEGAN, Magistrate Judge.

Plaintiff John Hudzenko, Jr., seeks to overturn the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. 42 U.S.C. §§ 416, 423(d). The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and Plaintiff has now moved for summary judgment. After careful review of the record, the Court grants Plaintiff's motion and remands the case for further proceedings.


Plaintiff filed his application for DIB on March 29, 2010 (with a protective filing date of December 24, 2009), alleging that he became disabled on November 29, 2009. (R. 163; 184). His date last insured was December 31, 2013. (R. 184). His stated medical conditions included bipolar disorder and back pain. (R. 188). The Social Security Administration ("SSA") denied the applications initially on July 2, 2010, and again on reconsideration on November 3, 2010. (R. 100; 102). Pursuant to Plaintiff's timely request, Administrative Law Judge ("ALJ") Daniel Dadabo held an administrative hearing on July 25, 2011. (R. 44). The ALJ heard testimony from: Plaintiff, who appeared with counsel; Plaintiff's witness, Mr. Michael Freiberg, a case manager from the Lake County Health Department; and vocational expert ("VE") Dr. Jeffrey W. Lucas. (R. 50; 82; 87). On September 8, 2011, the ALJ found that Plaintiff has disabling limitations, but he has a substance abuse disorder that is a material contributing factor to those limitations. (R. 26-37). The ALJ further found that Plaintiff's mental and physical limitations would not be disabling if he stopped abusing substances, and therefore Plaintiff was not disabled. ( Id. ). The Appeals Council denied Plaintiff's request for review on November 16, 2012, and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. (R. 1-5).

Plaintiff's primary argument is that the ALJ erred in determining that he would not be disabled were he not a substance abuser. Specifically, Plaintiff asserts that the ALJ erred by (1) not explaining how the evidence shows that Plaintiff's mental residual functional capacity ("RFC") would improve if he did not use drugs or alcohol; (2) improperly weighting the opinion of his treating psychiatrist Dr. Javed, as set forth in the December 9, 2010 letter, the October 22, 2010 report of DDS examiner Dr. Kenneth E. Heinrichs, and the observations of his case worker, Mr. Michael Freiberg; and (3) improperly evaluating his credibility.


Plaintiff was born on March 1, 1967, was 44 years old, and was living with and helping to care for his disabled mother at the time of the ALJ's decision. (R. 50; 61; 100). He had worked as a pest control technician for almost 18 years until December 2005, when he could no longer perform his duties due to back pain. (R. 48; 52-53; 188-89). He then worked several jobs, including in retail and as a security officer, but stopped working on November 28, 2009 because he had been repeatedly let go from his jobs. (R. 55; 60; 188-89).

A. Medical History

1. 2009

According to a report summarizing Plaintiff's medical history, he reported receiving his first psychiatric treatment in about 2001 or 2002 for feelings of depression and anxiety, and he was eventually diagnosed with bipolar disorder. (R. 338). The earliest treatment notes in the record are dated December 30, 2008, and indicate that Plaintiff was then receiving medication management services from a psychiatrist, Dr. Darem Reddy. (R 336). Some of Dr. Reddy's notes state that he had been treating Plaintiff for a few years by December 2008, and was aware Plaintiff had a substance abuse problem. (R. 344, 346). Dr. Reddy's notes from early to mid-2009 indicate that the psychiatrist generally saw Plaintiff every few weeks for 15-minute visits. (R. 332, 334, 336). In these notes, Dr. Reddy reported that Plaintiff appeared "stable at his level of functioning, " was working full-time, and was taking his medications for his bipolar disorder (Seroquel, Depakote and Lexapro). ( Id. ).

Dr. Reddy made a full psychiatric examination of Plaintiff on October 1, 2009, and found that Plaintiff: was alert, oriented and cooperative; had relevant speech, an appropriate affect, and a relaxed and pleasant mood; was not suicidal or homicidal; and had good judgment, average intellect, intact short and long term memory, and fair insight. (R. 344-46). Dr. Reddy further found that Plaintiff had not been hospitalized in the past year and was taking his medications, working full-time, and not drinking or using illegal drugs. ( Id. ). Plaintiff next saw Dr. Reddy on December 15, 2009, reporting increased anxiety and depression due to various interpersonal problems and the recent loss of his job. (R. 332). He also admitted being non-compliant with his medications. ( Id. ). Dr. Reddy sent Plaintiff to the Crisis Care Program ("CCP") of the Lake County Health Department for medication stabilization, and he was admitted to the CCP that same day. (R. 332; 386).

The next day, on December 16, 2009, Plaintiff was evaluated at the CCP by psychiatrist Dr. H. Singh. (R. 338-42). Plaintiff complained of stress, confusion, and auditory hallucinations, and again admitted to being non-complaint with his medications. (R. 338). Plaintiff also said that he had lost several jobs recently due to "messing up" and angry outbursts, including for sending an angry email to his boss. (R. 338-39). Dr. Singh found Plaintiff was not forthcoming about whether he had recently been using illegal drugs or drinking alcohol, and the psychiatrist suspected substance abuse. (R. 340). Dr. Singh also found that Plaintiff's mental status was abnormal, in that he displayed inadequate grooming; he was apprehensive and anxious; his affect was intense and inappropriate; his speech was pressured and spontaneous; his answers to questions were illogical; his insight was lacking; and his judgment was impaired. ( Id. ). On the positive side, Plaintiff was also alert and oriented, with his memory intact. ( Id. ). Dr. Singh assessed Plaintiff with bipolar disorder (potentially with psychotic features due to auditory hallucinations), and provisionally diagnosed him with substance-induced mood or psychotic disorder. ( Id. ). The psychiatrist increased Plaintiff's Seroquel dosage and "highly recommended" that he comply with his medications. (R. 342). Plaintiff was discharged from the CCP on December 19, 2009, after his condition had improved due to medication stabilization. (R. 386-87).

2. January 2010 through Mid-July 2010

On January 12, 2010, Plaintiff returned for a follow-up with Dr. Reddy, complaining of stress and anxiety, including because he was denied unemployment benefits. (R. 330). Plaintiff reported that, while he was not working, he was caring for his disabled mother and attending to the needs of his father, who was hospitalized. ( Id. ). Dr. Reddy increased Plaintiff's Lexapro dosage to combat his stress and anxiety and recommended he continue his other medications. (R. 330). Plaintiff continued to receive medication management services from Dr. Reddy, and generally reported taking his medications, with one exception. (R. 537-38). In early March 2010, Dr. Reddy noted that Plaintiff attempted to self-treat issues with lack of sleep and nightmares by taking extra Seroquel. (R. 537). The psychiatrist adjusted Plaintiff's medication dosages and reminded him to take them as prescribed, and Plaintiff later reported being compliant again. ( Id. ).

Plaintiff also sought treatments around this time from the Lake County Hospital for back pain. In a February 18, 2010 medical history form for that hospital, Plaintiff stated that he smoked marijuana joints daily. (R. 366-67). On March 29, 2010, while he continued to receive back pain treatments and medication management services, Plaintiff completed an application for DIB through the SSA. (R. 163). A couple months later, in late May 2010, Plaintiff again visited the CCP for assistance in medication stabilization. (R. 738). At this time, the CCP decided to assign Plaintiff a case manager, Mr. Michael Freiberg, to help him maintain compliance with his medications and treatments without the need for admission to the CCP. (R. 737-41). Mr. Freiberg began meeting with Plaintiff in June 2010, and (among other services) helped him with medical benefits applications. ( Id. ).

On June 14, 2010, Plaintiff was examined by Disability Determination Services ("DDS") clinical psychologist Dr. William W. Lee, to evaluate his DIB claim. (R. 163; 391-93). In Dr. Lee's June 21, 2010 report, he noted that Plaintiff was caring for his disabled mother, including by doing household chores and taking her for appointments. (R. 392). Plaintiff stated that caring for his mother was stressful, he felt depressed and anxious, and he slept a lot. ( Id. ). He also occupied his time by using his computer. ( Id. ).

Dr. Lee observed that Plaintiff displayed good hygiene, was well-groomed, was attentive, had no abnormal motor movements, and spoke in a clear, organized, and coherent manner. (R. 391). Plaintiff was also oriented to person, place and time; his immediate memory recall was intact, and he was able to drive himself to his appointment. (R. 392). Plaintiff, however, also displayed poor eye contact, pressured speech, a depressed and anxious mood, and a flat and constricted affect. (R. 391). Dr. Lee also found that Plaintiff's delayed memory recall, concentration, computation and reasoning skills, and fund of knowledge, were poor, and his common sense and judgment were limited. (R. 392). As part of his assessment, Dr. Lee also reviewed Plaintiff's medical records, noting that he reported being "clean and sober" for several years, but that Dr. Singh had provisionally diagnosed him with substance abuse-related disorders. (R. 392-93). Dr. Lee diagnosed Plaintiff with bipolar disorder and polysubstance abuse in remission, and opined that Plaintiff would not be able to independently manage any funds that might be awarded to him. (R. 393).

A couple of days later, on June 23, 2010, psychologist Dr. Russell Taylor completed a Psychiatric Review Technique and a Mental RFC Assessment of Plaintiff for DDS. (R. 411-27). The records Dr. Taylor reviewed in preparing the reports included treatment records from Drs. Reddy and Singh and Dr. Lee's June 21, 2010 report. (R. 423). Dr. Taylor assessed Plaintiff with a mood disorder that caused decreased energy and feelings of worthlessness, poor judgment concerning high-risk activities, and a substance addiction disorder with an "unknown remission status." (R. 414; 419). Dr. Taylor found that Plaintiff's mental conditions caused him mild limitations in his activities of daily living, moderate limitations in maintaining social functioning and concentration, persistence or pace, and one or two episodes of decompensation. (R. 421). Regarding Plaintiff's RFC, Dr. Taylor opined that Plaintiff could carry out simple tasks for a normal work period, could adapt to simple, routine changes and pressures, and could interact and communicate in a work setting with reduced social demands. (R. 427).

In support of his determinations, Dr. Taylor noted that Plaintiff had been admitted to CCP for medication stabilizations and that Dr. Singh had found he was anxious, but also alert with an intact memory. (R. 423). And although Dr. Reddy later found Plaintiff was under stress and anxious, he was also able to care for his parents at the time. ( Id. ). Dr. Taylor acknowledged that during Dr. Lee's examination, Plaintiff appeared anxious and showed some memory problems, computation issues and other deficits. ( Id. ). But Dr. Lee also found Plaintiff was cooperative, appeared clean, was oriented, and spoke in a clear and organized manner. ( Id. ). Plaintiff also reported to Dr. Lee that he was caring for his mother, driving, and using a computer. ( Id. ). Furthermore, Dr. Taylor noted that in Plaintiff's report of activities of daily living, he stated he used the internet, prepared simple meals, did chores, drove alone, bought groceries, and paid bills. ( Id. ). On July 2, 2010, shortly after Dr. Taylor wrote his reports, the SSA denied Plaintiff's application for DIB. (R. 100).

Plaintiff also met or talked with his case manager, Mr. Freiberg, on several occasions in July 2010, to "vent" his frustrations with various issues, including his denial of benefits, and discuss coping techniques. (R. 724-31). Plaintiff also reported to Mr. Freiberg that his mother visited a nursing facility for rehabilitation for some part of July 2010 (from the records, it is not clear how long she was at the facility). (R. 728).

3. Late July and Mid-August 2010 Hospitalizations

On July 20, 2010, Plaintiff attempted suicide by taking a handful of his Depakote and Seroquel pills and smoking marijuana. This occurred after a fight with his girlfriend regarding his recent drug use and accusations that he was involved in some criminal activity (that Plaintiff claimed was only being perpetrated by his father). (R. 445-47). Mr. Freiberg attempted to check on Plaintiff at this time, but instead spoke to Plaintiff's girlfriend. (R. 723). She reported that Plaintiff had gone "out of control, " that drugs were involved, and that she had called the police. ( Id. ). The police caused Plaintiff to be taken to the emergency room at the Advocate Condell Medical Center ("Advocate"). (R. 445).

At Advocate, Plaintiff was examined by the attending emergency room physician, Dr. Mohina Gupta. (R. 445). Plaintiff admitted to Dr. Gupta that he smoked marijuana and drank alcohol. ( Id. ). Dr. Gupta found Plaintiff was physically unharmed by his suicide attempt, but referred him for a psychiatric consultation with Dr. Robert Baker. (R. 446-47). Plaintiff told Dr. Baker that he had attempted suicide once before, six years ago. (R. 447). He also again admitted to "occasionally" smoking marijuana. ( Id. ). Dr. Baker found Plaintiff depressed, with a history of suicide attempts and a cannabis abuse disorder, and recommended he receive inpatient psychiatric stabilization. (R. 447-48). Plaintiff was involuntarily admitted to Advocate and remained there until July 26, 2010, at which time he was transferred to Elgin Mental Health Center ("Elgin") for the recommended psychiatric treatment. (R. 481-83; 516).

Upon admission to Elgin, Plaintiff was examined by Dr. Syed Waliuddin, a psychiatrist. (R. 516-25). Plaintiff told Dr. Waliuddin that he had been functioning well and at his usual capacity until several weeks earlier, when he experienced financial, relationship, legal and family issues. (R. 521). These issues included an argument with his girlfriend, sadness over a friend's death, and problems with his children, ex-wife and father. (R. 521). Plaintiff also admitted drinking alcohol "a few times a week, " and smoking and growing marijuana (which also caused him significant stress, because he thought the police might know about the marijuana). (R. 516; 521; 523). Dr. Waliuddin found Plaintiff had good verbal skills, appeared to be in good physical health, was alert and oriented, and had normal speech, thought processes and motor behavior. (R. 516-17; 524). However, Plaintiff appeared depressed with a sad, constricted affect; exhibited some paranoia; had poor to fair judgment and a deficient delayed memory recall; and showed a high suicide potential. (R. 517; 524). Dr. Waliuddin assessed Plaintiff as bipolar with a Global Assessment of Functioning ("GAF") score of 20, recommended Plaintiff engage in group and individual therapy, and told him to restart his medications.[2] (R. 525).

While at Elgin, Plaintiff was examined by a social worker, whom he told that he had significant substance abuse issues, including that he had lost a job in 2006 due to a positive drug test screening. (R. 526-32). Plaintiff remained at Elgin until August 5, 2010, at which time he was discharged by Dr. Waliuddin. (R. 518-20). Upon discharge, Dr. Waliuddin found Plaintiff had excellent compliance with his medications, good attendance at his therapy sessions, was oriented with normal motor behavior, speech, affect, and thought process, and had improved insight and judgment. (R. 518-19). She raised his GAF score to 55.[3]

On August 6, 2010, the day after being discharged from Elgin, Plaintiff met with psychiatrist Dr. Bard S. Javed, upon referral by Dr. Reddy. (R. 536). Plaintiff's case manager, Mr. Freiberg was also present. (R. 536; 716-23). Plaintiff stated that he felt anxious, but was not suicidal or having any medication side effects. (R. 536). Dr. Javed found Plaintiff was oriented, well-related, had reasonable understanding, and assigned a GAF score of 55. ( Id. ). The psychiatrist told Plaintiff to continue his medications as instructed, and further found Plaintiff's bipolar disorder appeared controlled with medication. ( Id. ). Dr. Javed also found that Plaintiff's alcohol abuse was in remission, but that he was still engaged in substance abuse, as Plaintiff admitted using marijuana the day he was released from Elgin. ( Id. ). As a result, Dr. Javed told Plaintiff he needed to work with Mr. Freiberg on attending substance abuse counseling. ( Id. ).

A few days later, on August 10, 2010, Plaintiff told Mr. Freiberg he was having suicidal thoughts (including planning to lay on the train tracks to kill himself), and Mr. Freiberg took him to the Vista Medical Center West ("Vista") emergency room. (R. 714; 756). Plaintiff denied using any alcohol or illegal drugs at that time, but his urine tested positive for cannabinoids (as well as trycyclic antidepressants).[4] (R. 755; 759). Two days later, Plaintiff was transferred to the psychiatric unit at Vista, and examined by psychiatrist Dr. Art Pogre. (R. 750-51). Plaintiff told Dr. Pogre that he was "trying not to" drink alcohol or use drugs, but over the past several days his girlfriend had brought him alcohol and marijuana. (R. 750). Plaintiff also admitted that he had not been taking his prescribed medications for at least two days prior to visiting Vista. ( Id. ). Plaintiff stated that his suicidal thoughts had subsided while at Vista, he wanted to be discharged, and he planned to keep away from his girlfriend. ( Id. ).

Dr. Pogre found Plaintiff had a constricted affect, an "indifferent" mood and a current GAF score of 45.[5] (R. 751). However, the psychiatrist also found that Plaintiff: was well-groomed, cooperative, and friendly; had good eye contact, normal speech, no abnormal motor movements; had no hallucinations, delusions, paranoid, obsessive or racing thoughts; had intact thought processes, including with goal-directed thought and the ability to think abstractly; and had intact insight and judgment. ( Id. ). Since Plaintiff was no longer suicidal or violent, Dr. Pogre approved him for discharge on August 13, 2010. ( Id. ). After his discharge from Vista, Plaintiff continued to meet with his case manager, Mr. Freiberg. (R. 704-11). They discussed coping ...

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