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Hicks v. Colvin

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

May 29, 2015

DAVID D. HICKS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

MEMORANDUM OPINION AND ORDER

Young B. Kim, United States Magistrate Judge.

David Hicks claims that he became disabled on August 10, 2010, because he suffers from congestive heart failure, edema of the lower extremities, morbid obesity, gout, and back pain. After the Appeals Council declined to review the administrative law judge’s (“ALJ”) decision denying benefits to Hicks, he filed this suit seeking judicial review. See 42 U.S.C. § 405(g). Before the court are the parties’ cross motions for summary judgment. For the following reasons, Hicks’s motion for summary judgment is denied and the Commissioner’s motion is granted:

Procedural History

Hicks applied for Supplemental Security Income (“SSI”) benefits on August 11, 2010, claiming a disability onset date of August 10, 2010. (Administrative Record (“A.R.”) 22.) His application was denied on October 29, 2010, and upon reconsideration on December 30, 2010. (Id.) At his request, Hicks received a hearing before an ALJ, which took place on November 21, 2011. (Id. At 47.) Following the hearing, the ALJ issued a written decision finding that Hicks was not disabled. (Id. at 22-29.) The Appeals Council denied Hicks’s request for review, (id. at 1-3), making the ALJ’s decision the final decision of the Commissioner of the Social Security Administration. See Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013). Hicks filed this lawsuit on July 3, 2013, seeking judicial review, see 42 U.S.C. § 405(g), and the parties consented to this court’s jurisdiction, (R. 6); 28 U.S.C. § 636(c).

Facts

Many years of frequent cocaine use, heavy drinking, and poor diet precede Hicks’s recent medical woes. In August 2010, a few days before his 45th birthday, Hicks, who suffers from obesity, sought medical care for shortness of breath, back pain, and declining functional ability. (A.R. 208.) Through a battery of examinations and tests, Hicks’s treating physicians determined that Hicks had a “moderately severe” enlarged heart and experienced atrial fibrillation, and they ultimately diagnosed him with acute systolic heart failure. (Id. at 197, 274.) They also diagnosed Hicks with alcohol or cocaine-induced dilative cardiomyopathy. (Id. at 229.) Hicks also received treatment for gout. (Id. at 311, 356.) According to Hicks, these maladies impaired his mobility and rendered him unable to work. Hicks submitted documentary and testimonial evidence in support of his claim at his November 2011 administrative hearing.

A. Medical Evidence

For much of his life Hicks consumed 10 to 12 cans of beer each day, used tobacco, and regularly snorted a mixture of cocaine and marijuana. (A.R. 274, 423.) He sometimes also used heroin. (Id. at 384.) In the months preceding his August 2010 visit to the hospital, Hicks, already overweight, consumed large amounts of junk food and gained between 20 and 30 pounds in a relatively short period of time. (Id.) There is no evidence that Hicks sought medical attention for his worsening physical condition at any time before he arrived in the Emergency Department at the Cook County Hospital on August 9, 2010. (Id. at 196.) At the time of his hospital admission, Hicks was in atrial fibrillation with rapid ventricular response. (Id. at 229.) Hicks told the treating medical personnel that he could only walk two to three blocks before back pain or shortness of breath overtook him. (Id. at 273.) Hicks also told the medical personnel that he believed his back pain was related to his weight and diet. (Id. at 274.) An echocardiogram showed ventricular and atrial dilation. (Id.) Hicks’s heart rate was 120 beats per minute and his urine sample tested positive for cocaine. (Id. at 270.) Hicks was discharged three days later on August 12, 2010. (Id. at 229.) Hicks’s diagnoses were atrial fibrillation, alcohol or cocaine-induced dilative cardiomyopathy, and systolic heart failure. (Id.) Upon discharge, Hicks was instructed to quit smoking, walk daily, limit his salt intake, and monitor his weight. (Id. at 230.)

Hicks took the advice of his physicians to heart. Beginning with his diagnosis in August 2010, Hicks regularly reported for his medical visits to monitor his medications and to check his progress over the course of the following year. (See Id. at 355, 357, 424, 428.) The majority of Hicks’s medical visits through the spring and summer of 2011 focused on adjusting the dosage of Hicks’s Coumadin medication that he was taking regularly to treat his atrial fibrillation. (See. e.g., Id. at 413, 415, 417.) Treatment records from these appointments repeatedly note Hicks’s professed abstinence from tobacco, cocaine, heroin, and alcohol beginning on the day of his diagnosis. (See Id. at 376, 378, 381, 384-85.) By June 2011, after nine months of abstinence from substance abuse, his health improved. Hicks sought treatment for gastrointestinal problems, but he denied shortness of breath, abdominal pain, or weakness. (Id. at 394.) He received additional counseling on his diet, which was noted as “not good, ” (id. at 419), but Hicks’s heart rate was under control and he had no complaints of palpitations or symptoms of heart failure. (Id. at 420.)

Concurrently with his treatment, Hicks sought assessments relating to his SSI application. All three of Hicks’s residual functional capacity (“RFC”) determinations took place within the first three months after his initial diagnosis. In October 2010, a State Disability Examiner, Dr. Charles Carlton, performed a consultative examination on Hicks and found that it was “possible” that Hicks’s standing tolerance could be limited, but that he could safely sit, perform tasks that involve lifting 10 to 20 pounds, and walk greater than 50 feet without an assistive device. (Id. at 314.) Dr. Carlton also found that Hicks’s range of motion was normal. (Id. at 314-15.) Later that same month, Dr. Charles Kenney authored a RFC assessment finding that none of Hicks’s conditions were of listings-level severity, and opining that he could stand or walk for at least two hours in an eight-hour workday, sit for approximately six hours in an eight-hour workday, and could frequently lift 10 pounds and occasionally lift 20 pounds. (Id. at 324-25.) Dr. Kenney also determined that Hicks was restricted from climbing ladders, ropes, or scaffolding, and from concentrated exposure to extreme heat, cold, humidity, odors, hazardous machinery, or heights. (Id. at 326-27.)

The following month, in November 2010, Hicks received another RFC assessment, this time from Dr. Michael Shapiro. Dr. Shapiro was among the physicians who treated Hicks when he was admitted to the Cook County Hospital on August 9, 2010. (See Id. at 341-42.) According to Dr. Shapiro, Hicks could only stand or walk less than two hours in an eight-hour workday, and could only sit two hours in an eight-hour workday. (Id. at 334.) Dr. Shapiro also stated that Hicks would need a job that allows him to shift from sitting, standing, or walking at will, and to take a ten-minute break every two hours. (Id.) The reports from Drs. Carlton, Kenney, and Shapiro were all generated in the fall of 2010, and none of them was privy to Hicks’s medical records from June 2011, the time when Hicks was asymptomatic of heart failure and when he denied shortness of breath.

After the administrative hearing, Hicks’s counsel submitted a “Post-Hearing Memorandum, ” attaching an unauthenticated printout purporting to demonstrate that Hicks had “31 medical appointments” between August 25, 2010, and November 23, 2011. (Id. at 447-48.) The printout was accompanied by a letter from Hicks’s attorney claiming that Hicks was “vocationally unreliable for at least 12 months.” (Id. at 447.)

B. Hicks’s Hearing Testimony

At the November 2011 hearing before the ALJ, Hicks testified that he lives with his aunt and his mother in a building owned by his aunt. (A.R. 51.) He does not pay rent, is single, and has no children. (Id.) Although he is able to read and write, Hicks testified that he fell in with “the wrong crowds” and dropped out of high school. (Id. at 52.) Hicks testified that he does not have a driver’s license. (Id.) Except for a seasonal job as a laundry room attendant at a baseball park many years ago, Hicks has never worked. (Id. at 52-53.) At the time of his hearing, Hicks received $200 in food stamps each month. (Id. at 52.)

Hicks testified that his physical condition prevents him from accomplishing even simple chores. For example, Hicks testified that he cannot take out the garbage, make his bed, or wash the dishes because he cannot stand upright for long enough. (Id. at 53.) According to Hicks, he can walk half a city block at the most, but probably not even that far, before he has to stop because of shortness of breath. (Id. at 53, 58.) Pain in his back and his leg occasionally prevent him from sleeping. (Id.) Hicks’s leg pain is caused by gout and he testified that he takes medication that relieves the pain for two to three hours before the pain returns. (Id. at 54.) Hicks testified that his gout causes frequent swelling in his leg and that sometimes the swelling takes weeks to improve. (Id. at 58.) Hicks also testified that he has arthritic hands. (Id. at 55.) Notwithstanding these conditions, Hicks’s testimony also indicates that he has been making efforts to right the ship: he quit using cocaine and alcohol, attends monthly medical appointments, and is on various medications. (Id. at 54.)

The ALJ was skeptical of Hicks’s testimony and it appears that this skepticism at times verged on hostility. (See Id. at 55-57.) When questioning Hicks about a physician’s report that Hicks was unable to stand and walk or sit for more than two hours at a time, the ALJ asked the following questions and Hicks provided the following answers:

Q. And so it says that you could only stand and walk about two, less than two hours. Did he stand with you for two hours to see how long you could stand for?
A. Yeah, but when I stand my back start [sic] hurting. Then I have to sit down.
Q. Usually doctors are pretty busy. He stood with you for two ...

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