Fuchs v. Astrue

873 F.Supp.2d 959

Michael FUCHS, Plaintiff,

v.Michael J. ASTRUE, Commissioner of Social Security Administration, Defendant.

No. 11 C 7137.

United States District Court,

N.D. Illinois,

Eastern Division.

July 6, 2012.

Michael Aaron Glazer, Jeffrey A. Rabin and Assoc., Des Plaines, IL, for Plaintiff.

Katherine Ellen Beaumont, AUSA–SSA, United States Attorney's Office, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

JEFFREY COLE, United States Magistrate Judge.

The plaintiff, Michael Fuchs, seeks judicial review of the final decision of the Commissioner of Social Security (Commissioner), made on August 19, 2011, which found plaintiff was not disabled and thus was not entitled to Disability Insurance Benefits under Title II of the Social Security Act. See42 U.S.C. §§ 405(g), 416(i), 423(d) (2009). Mr. Fuchs asks the court to reverse the decision without remand for a rehearing. Alternatively, Mr. Fuchs asks the court to reverse the final decision with a remand for a new hearing. The Commissioner requests the court to affirm the administrative law judge's decision that plaintiff was not disabled and deny plaintiff's requested remedy.

I.Procedural History

Plaintiff filed an application for disability benefits on December 15, 2009. (R. 152–158). Plaintiff's application was denied initially on February 6, 2009 (R. 73). The application was again denied upon reconsideration on May 13, 2009. (R.74).

At plaintiff's request, a hearing was held before an administrative law judge (ALJ) on April 13, 2010. (R.78). At the hearing, the plaintiff amended the alleged onset date of disability from March 17, 2005, to December 28, 2008. (R.194). Thomas Dunleavy, a vocational expert, and Constance Fullilove, Ph.D., a medical expert, testified. (R. 134–136).

On August 25, 2010, the ALJ issued his decision, finding that plaintiff was not disabled. (R.78–94). On September 8, 2010, plaintiff requested a review of that decision. (R.145–146). The request was denied on August 19, 2011. (R.95). Plaintiff then initiated this civil action for judicial review of the Commissioner's final decision.

II.The Record Evidence

A.The Vocational Evidence

Mr. Fuchs was born on February 14, 1958, making him fifty two years old at the time of the ALJ's decision. (R. 202). He has a high school education. (R.8, 329). He last worked as a janitor for Sam's Club from July 2007 until December 2008. (R.326). He was fired when he could not concentrate and get the job done correctly (R.9). Before that, Mr. Fuchs worked as a barber from March 1995 until June 2006. (R.326).

B.The Medical Evidence

Mr. Fuchs was hospitalized at Silver Cross Hospital from March 16 to March 18, 2006, for a bipolar episode, manic, with psychosis. (R.356–360). He was noted to be paranoid and was hearing voices as well as having grandiose ideas. Id. Auditory hallucinations were described as the “devil talking to him.” Id. His GAF score was 20 at the time of admission and 40 upon discharge. Id.

From July 21 to July 27, 2007, Mr. Fuchs was hospitalized at Provena Saint Joseph Medical Center. (R.435–439). He was noted to be paranoid and delusional and was experiencing flight of ideas. Id. He was also noted to have stage 3 chronic kidney disease. (R.440).

Mr. Fuchs was again hospitalized at Provena Saint Joseph Medical Center from July 19 to July 21, 2008. (R.388–395). He was noted to have “alerted mental status changes” and was found to have increased lithium levels. Id. He reported hearing voices telling him to kill himself and hoping that his family dies. Id. His brother reported that claimant has been worsening with regards to psychosis, having persecutory and paranoid ideations. Id.

Dr. Boddapati has been the plaintiff's psychiatrist since 2002. (R.661). In a treatment note dated September 12, 2008, Mr. Fuchs admitted to auditory hallucinations, and is noted to have problems with social skills. (R.479). On October 27, 2008, Mr. Fuchs presented for psychiatric evaluation. He was diagnosed as having paranoid schizoaffective disorder and was assigned a GAF score of 45. (R.474–475). On June 24, 2009, plaintiff reported paranoia and difficulty sleeping. (R.650). Furthermore, on October 19, 2009, plaintiff reported auditory hallucinations and paranoia. (R.648). He is noted to be “unable to function.” Id.

In a report dated March 15, 2010, Dr. Boddapati opines that Mr. Fuchs is unable to function in a competitive work setting on a full-time basis. Dr. Boddapati also opines that Mr. Fuchs exhibits manic syndrome, manifested by hyperactivity, flight of ideas, decreased need for sleep, easy distractibility, and hallucinations, delusions, or paranoid thinking resulting in marked restrictions in activities of daily living, and extreme difficulties in maintaining a social functioning, maintaining concentration, persistence, and pace, as well as repeated episodes of decompensation. (R.661–663).

Mr. Fuchs began seeing Terry Nolan for regular therapy sessions in September of 2008. (R.601–614). In their initial meeting on September 12, 2008, Mr. Nolan notes Mr. Fuchs to have auditory hallucinations and to believe his downstairs neighbor is running a “secret cell.” (R.614). On October 2, 2008, plaintiff reported to Mr. Nolan that he is hearing voices when he listens to music. (R.613). Plaintiff is also noted to have some paranoia. Id. On January 7, 2009, Mr. Nolan notes that plaintiff was fired from his maintenance job for being too slow. (R.608). On July 7, 2009, plaintiff reported auditory hallucinations. (R.601). On August 10, 2009, plaintiff is noted to be “agitated and fidgety,” (R.655). On October 18, 2009, Mr. Nolan notes that “the client speaks as if his problems with his neighbors and the voices he heard were real.” (R.654).

In a report dated March 3, 2010, Mr. Nolan opines that claimant's illness markedly restricts daily activities, and markedly restricts socialization. Mr. Nolan also notes that fatigue and stress usually trigger the paranoid episodes. (R.659–660).

C.The Administrative Hearing Testimony

1.The Plaintiff's Testimony

Mr. Fuchs testified that he believes when he goes to the grocery store, “they turn up the intercom when I come in the building and warn everyone I'm there.” (R.31). When asked by the ALJ why he thinks he cannot work in a full-time capacity, he replied, “a lot of it's concentration. I, I can't remember where I'm at. I do things—over. I constantly have to drink out of the fountain. I'm using the bathroom at least six times. I'm wandering. I don't get anything done.” (R.37).

2.The Medical Expert's Testimony

At the hearing, Dr. Fullilove was called upon to serve as an impartial medical expert. She testified that plaintiff has paranoid schizophrenia, bipolar disorder, and substance abuse. (R.53). She further testified that based on the record, plaintiff meets listing 12.03 for psychotic disorders. (R.54). In making this determination, she considered plaintiff's delusions and hallucinations, marked difficulties in maintaining social functioning, and marked difficulties in maintaining concentration, persistence, or pace. Id. Dr. Fullilove also found plaintiff to have moderate restrictions in activities of daily living, noting that the severe limitations of his functionality are not dependent upon his drug use. Id.

The ALJ questioned the medical expert about places in the record where the treating doctor's assessment does not seem as severe as Dr. Fullilove's assessment. (R.57). Dr. Fullilove replied:

The evidence indicates that there are times when Mr. Fuchs tends to function better than at other times. And I think that's part of the pattern. He, he can look good for a while, but it appears that, in terms of being able to persist with, sometimes, his employment or competitive activity, the persistence—the ability to persist is totally not there. So, sometimes he looks fairly stable and can perform for a while, then it, it's—he kind of breaks down, and it's sometimes kind of kicked back down whether or not he's, he's using or noncompliant with medication, or whatever the case may be, just the normal course of the disease over a while. Over a period of time, it's, it's—there's an inconsistency that's not documented. That's what happened before.

(R.58).

3.The Vocational Expert's Testimony

Mr. Dunleavy testified as a vocational expert. The ALJ asked the vocational expert to assume a person of the claimant's age, education, and work experience could perform simple, routine, repetitive tasks in a work environment that would be free of fast-paced production requirements, involving only simple work-related decisions, with few workplace changes. (R.62). Mr. Dunleavy said that such a person could not perform Mr. Fuchs's past work because it is too fast-paced. (R.64). However, such a person could perform similar jobs, such as housekeeping, of which there are a significant number of positions in the Chicago Metropolitan area. Id. The ALJ then changed the hypothetical to additionally require that the person would only have occasional interaction with the public and only occasional contact with coworkers or supervisors. (R.65–66). Mr. Dunleavy testified that such a person would still be able to work as a housekeeper, as well as a laundry folder or hand packager. (R.65–67). There are a significant number of laundry folder and hand packager jobs in the region. Id.

III.The ALJ's Decision

The ALJ found that Mr. Fuchs has suffered from schizophrenia, bipolar disorder, and substance abuse. (R.80). After reviewing the medical record, the ALJ determined that these impairments fail to meet or medically equal a listed impairment in 20 CFR Part 404, Subpart P, Appendix 1, giving particular consideration to Listings 12.03, 12.04, and 12.09. (R.81). She considered the longitudinal record and the opinion of the state agency psychological consultant to conclude that the claimant failed to satisfy “paragraph B” criteria, which requires that the impairments result in at least two of the...