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Hernandez v. Colvin

United States District Court, N.D. Illinois

December 14, 2016

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


          Susan E. Cox, U.S. Magistrate Judge.

         Plaintiff Abigail Hernandez appeals the decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (“the Act”). For the reasons discussed more fully below, we remand this matter for further proceedings consistent with this opinion. Plaintiff's motion for summary judgment is granted [dkt. 14], and the Commissioner's motion [dkt. 21] is denied.



         Plaintiff filed an application for Supplemental Security Income on March 5, 2012, alleging she became disabled on January 1, 2010, due to memory loss, depression, HIV, and hepatitis C. R. 133-137, 151. At that time, she was nearly 40 years old. R. 133. She left school after the ninth grade and has almost no work history, having last worked very briefly when she was 21. R. 56-57, 141-144. Plaintiff's application was denied initially and on reconsideration, and she requested an administrative hearing. R. 88-89, 94-102, 103. On January 30, 2014, an administrative law judge (“ALJ”) held a hearing at which the plaintiff appeared and testified, and was represented by counsel. R. 50-97. In addition, Julie Lynn Bowes testified as a vocational expert (“VE”). R. 50.

         On April 14, 2014, the ALJ issued a decision denying plaintiff's application for SSI. R. 31-45. The ALJ determined that plaintiff was not disabled because she retained the capacity to perform a limited range of sedentary work that involved no more than simple, routine, repetitive tasks; did not require more than brief, superficial interaction with the public, co-workers, or supervisors; and involved no more than minor changes in the work environment. R. 36. Relying on the VE's testimony, the ALJ found that this allowed plaintiff to perform jobs like document preparer, addresser, and circuit board assembler, that exist in significant numbers in the national economy. R. 44-45. After the Appeals Council denied plaintiff's request for review, plaintiff filed suit in the Northern District of Illinois, seeking review of the decision under 42 U.S.C. §405(g).


         Plaintiff was apparently first diagnosed with HIV/AIDS in 2004, but did not begin treatment until 2008. R. 202, 280. An infectious disease treatment note from Dr. Jose Bolanos, dated October 16, 2008, indicates that plaintiff's genotype was resistant to treatment with both nucleoside reverse transcriptase inhibitors and non-nucleoside reverse transcriptase inhibitors. R. 214. He also noted that she suffered from HIV-induced lymphadenopathy and amenorrhea. R. 214. She was an alcoholic who was drinking 40 ounces of beer a day, and a heroine addict who was undergoing methadone treatment. R. 214. She had been losing weight and had a number of other health issues, including hepatitis C. R. 214. Two weeks later, Dr. Bolanos reported that he planned to start plaintiff on an HIV medication regimen of Kaletra and Truvada. R. 206, 218. Plaintiff continued fairly regular follow-ups with her HIV/AIDS treatment. As such, a large portion of the record consists of blood chemistry and lab results. These tests, while for the most part unamplified by any doctor's interpretation, always show plaintiff's CD4 or T-cell counts to be very low, often less that 100. R. 285, 287, 292, 300, 335, 534, 604-661.[1]

         In November 2008, plaintiff reported feeling depressed, fatigued, and weak. R. 234. She had memory and concentration problems and lacked motivation. R. 234. Plaintiff claimed she had not had a drink in 6 months. R. 235. Diagnosis was dysthmia, rule/out major depression; plaintiff was assigned a GAF score of 50. R. 236.

         Plaintiff missed two or three follow-up appointments in the winter of 2008-2009. R. 265. As of February 12, 2009, she was taking Methadone, Bactrim, Wellbutrin, Truvada, Reyataz, Norvir, and Aldara. R. 255.

         On April 9, 2009, plaintiff had a consultative psychiatric examination in connection with a previous application for SSI. Plaintiff reported that she had last had a drink 6 months earlier and had last used heroin a year earlier. R. 250. She said she was “too weak to work.” R. 250. Dr. Myrtle Mason reported that plaintiff exhibited some lack of general knowledge and a low average intelligence. R. 252. Plaintiff's judgement seemed intact, but plaintiff had difficulty with abstract thinking. R. 252. Her memory was somewhat impaired. R. 252. Dr. Mason diagnosed plaintiff with depressive disorder, substance abuse disorder, opiate dependence, and alcohol abuse. R. 252. She assigned a GAF score of 60. R. 252.

         The medical record does not pick up again until April 2012, in conjunction with plaintiff's current application. On April 6 2012, plaintiff had another consultative psychiatric examination, this time with Dr. Ana Gil. R. 351-355. Dr. Gil noted that plaintiff had a history of chronic alcohol dependence and last drank the day before the exam. R. 354. Plaintiff explained that she drank to quell her depression. R. 351. The doctor also noted that plaintiff was a recovering opiate addict and was receiving 140 mg. of methadone, and had been diagnosed with HIV. R. 354. R. 354. Dr. Gil reported that plaintiff had mild psychomotor retardation, a sad and restricted affect, and moderately depressed mood. R. 354. Plaintiff's immediate memory and fund of knowledge were impaired. R. 354. Dr. Gil diagnosed plaintiff with moderately severe depressive disorder. R. 355. She did not think plaintiff was capable of handling her own funds if she received benefits. R. 355.

         At a mammogram appointment on April 16, 2012, plaintiff reported using heroin. R. 690. A lesion/hematoma on her left breast was the result of either injecting the drug, or being struck by her boyfriend. R. 588. The lesion was benign. R. 368. Women's clinic notes from April 2012 through November 2012 revealed plaintiff to be going through a number of problems, including severe cervical dysplasia, hepatitis infection, and condyloma. R. 564, 565, 568. The doctor noted that plaintiff had not been compliant with treatment. R. 568. Thereafter, plaintiff missed a number of HIV follow-up appointments from the end of April through the end of July 2012. R. 538, 540, 542, 544. On April 25, 2012, Ronald Havens, Ph.D., reviewed the plaintiff's medical file from a psychological perspective, on behalf of the state disability agency. Dr. Havens noted diagnoses of depression and heroin and alcohol abuse and dependence. R. 387, 392. He thought that plaintiff would have difficulty with detailed assignments, but she could understand and remember well enough to engage in simple assignments. R. 400. Although moderately limited in maintaining concentration, persistence, and pace, she could concentrate and persist adequately enough to perform repetitive, routine tasks. R. 394, 400. She could interact appropriately with others during brief and superficial contacts and could accept criticism from a supervisor. R. 400. Plaintiff could adjust to minor routine changes in a routine work environment. R. 400.

         On May 18, 2012, Dr. Victoria Dow reviewed plaintiff's medical file as it pertained to her physical condition for the state disability agency. Dr. Dow felt that plaintiff could lift or carry 10 pounds occasionally and less than 10 pounds frequently; stand or walk at least 2 hours in an 8 hour workday; sit about 6 hours in an 8 hour workday; push or pull without limitation other than those for lifting or carrying. R. 403. She could occasionally climb ramps, stairs, ladders, ropes, or scaffolds, and could occasionally stoop, kneel, crouch, and crawl. R. 404.

         At her October 2012 appointment, the attending physician reported that plaintiff continued to have “major issues” complying with treatment and was missing doses regularly. R. 510. Plaintiff claimed that she was only drinking every other day, and this allowed her to be more compliant with her medication regimen. R. 510. The doctor had “the same conversation with her as always about the dangers of non-compliance.” R. 510. She missed 2 of her next 3 appointments. R. 505, 508. By December, plaintiff was back to drinking every day, but had cut down to 3 beers. R. 502. She missed her January and February 2013 appointments. R. 496, 498.

         On January 4, 2013, Lionel Hudspeth, Psy.D., reviewed the file for the state agency and concurred in the earlier opinion of Dr. Havens. Dr. George Andrews did the same with respect to Dr. Dow's opinion on January 7, 2013. R. 446-448.

         Plaintiff made her March 2013 appointment, blaming her recent absences on having to take care of her nephew. R. 490. She said she was taking her medication “more regularly now.” R. 490. She was also cutting back on her drinking during the week while watching her nephew. R. 492. Physical exam was essentially normal and plaintiff had no complaints other than fatigue. R. 490, 492. She missed her next appointment. R. 487. In May 2013, she was involved in a car accident and injured her left ankle; there was no fracture or dislocation. R. 687.

         In June of 2013, plaintiff stated that she was taking her medication regularly and was feeling well. R. 482. She did report some weakness and fatigue with methadone treatments, and decreased appetite. R. 482. She was still drinking. R. 482. Physical exam was essentially normal aside from joint pain in plaintiff's left foot; she had strained it in her recent car accident. R. ...

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