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Bouthillier v. Astrue

September 9, 2009

RICHARD A. BOUTHILLIER PLAINTIFF
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Joy Flowers Conti United States District Judge

MEMORANDUM OPINION

CONTI, District Judge.

Pending before this court is an appeal from the final decision of the Commissioner of Social Security ("Commissioner" or "defendant") denying the claims of Richard A. Bouthillier ("plaintiff") for supplemental security income ("SSI") under Title XVI of the Social Security Act ("SSA"), 42 U.S.C. §§ 1381-83, and disability insurance benefits ("DIB") under Title II of the SSA, 42 U.S.C. §§ 401-33. Plaintiff asserts that the decision of the administrative law judge (the "ALJ") should be reversed or remanded because the decision is not supported by substantial evidence. Defendant asserts that the decision of the ALJ is supported by substantial evidence. The parties filed cross-motions for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. The court will deny plaintiff's and defendant's motions for summary judgment and will remand this case for further proceedings consistent with this opinion.

Procedural History

In October 2004, plaintiff filed an application for DIB and SSI, alleging that his hepatitis C and depression rendered him unable to work since December 1, 2003. (R. at 111.) Plaintiff's claims were denied on February 1, 2005. (R. at 69.) Plaintiff requested and was granted a hearing before the ALJ, which was held on December 6, 2006. (R. at 37-62.) Plaintiff, who was represented by counsel, testified at the hearing. (R. at 41-56.) A vocational expert ("VE") also testified. (R. at 56-61.) On March 7, 2007, the ALJ issued an unfavorable decision (R. at 23-29) and plaintiff timely filed a request for review with the Appeals Council. (R. at 19.) After a denial of the request on May 22, 2008, and having exhausted all administrative remedies, plaintiff filed this action. (R. at 10-12.)

Plaintiff's Background and Medical History

Background

Plaintiff was forty-eight years old at the time of the hearing and had completed high school and two years of college. (R. at 42.) In the past, he worked as a landscape laborer and a utility worker. (R. at 57-58.)

Medical History

On July 29, 2004, plaintiff tested positive for hepatitis C. (R. at 156, 261, 270.) The records indicate that plaintiff had been aware of his hepatitis C for some time, but doctors had been unable to perform treatment due to plaintiff's marijuana addiction.*fn1 (R. at 153, 239.) The hepatitis C caused cirrhosis*fn2 of plaintiff's liver. (R. at 51-52, 640.) At a gastroenterology consultation for his hepatitis C, plaintiff complained of severe fatigue with prolonged exertion.

(R. 155.) An abdominal ultrasound on November 18, 2004, indicated that plaintiff had choleslithiasis,*fn3 biliary sludge in the gallbladder, possible small polyp in the wall of the galbladder, and minimal fatty infiltration of the liver. (R. 311.)

On April 28, 2005, plaintiff began a forty-eight week Pegintron*fn4 and Ribavirin*fn5 medication treatment to lower his hepatitis C virus count. (R. at 351, 331-52, 700-36.) While undergoing the treatment, plaintiff reported side effects of fatigue, arthralgia/myalgias, irritability, sleep problems, hair loss, rash, inability to "get going," nausea, diarrhea, loss of appetite, headache, depression, and tinnitus.*fn6 (R. at 331, 334-35, 338, 341, 345, 473, 481-82, 485, 489-90, 492-93, 498, 502, 506.) On a scale of zero through ten, plaintiff reported fatigue at separate times at a six through an eight during his course of treatment. (R. at 473, 485, 489-90, 492-93, 498, 502, 506.) Plaintiff was additionally treated, during this period, for cellulitis*fn7 , boils, and lesions. (R. at 329, 340, 365-69, 372, 374.) Plaintiff's hepatitis C treatment ended March 30, 2006, at which time it was noted that plaintiff demonstrated an early virological response*fn8 (EVR) at week twelve and an end-of-treatment response*fn9 ("ETR"). (R. at 509-10.)

History of Drug Abuse

Plaintiff became a marijuana addict at the age of fifteen. (R. at 178.) He enlisted in the military, but was discharged after two years due to marijuana use. (R. at 55, 205, 273-4.) He also used cocaine until he completed a rehabilitation program in 1989. (R. at 150.) Plaintiff's marijuana addiction continued and he was occasionally fired from jobs due to his addiction. (R. at 273-74.) On August 30, 2004, plaintiff entered a two-week Center for the Treatment of Addictive Disorders ("CTAD") program for his marijuana dependence. (R. at 150, 157.) Plaintiff participated in classroom educational activities, group sessions, and one-on-one counseling while in the program. (R. at 151.) Plaintiff was discharged from the program on September 16, 2004. (R. at 150.) At the time of discharge, plaintiff's drug screen tests were negative. (R. at 151.) Plaintiff was instructed that he was permitted to resume all prehospitalization activities except those that might lead to the resumption of drug use. (Id.)

Plaintiff attended follow-up care sessions at the Butler Veterans Medical Center. At his September 22, 2004 visit, Dr. Ripu Jindal, a psychiatrist, indicated that plaintiff's cannabis dependence was in early remission, but encouraged plaintiff to continue seeking treatment for the addiction. (R. at 244). This remission was noted again on October 6 and 20, 2004. (R. at 238, 240).

Mental Health History

On August 21, 2004, plaintiff argued with his girlfriend, at which time she dared him to walk in front of a car after he indicated that he was sufficiently upset to commit suicide. (R. at 152.) Plaintiff stepped into traffic and a car swerved to avoid hitting him. (R. at 152, 209, 212.) One of plaintiff's neighbors observed him walk into the road and called the authorities. (R. at 44.) Plaintiff was admitted that same day to Butler Memorial Hospital and transferred to the Pittsburgh Veteran's Administration Medical Center ("VAMC"). (R. at 152-53.) Plaintiff was started on Zoloft.*fn10 (R. at 218.)

On August 23, 2004, plaintiff's mood was described as "somewhat depressed over his situation" and he was assessed with a Global Assessment of Functioning ("GAF") of 40.*fn11 (R. at 209-10.) He was diagnosed with depression with suicidal ideation. (R. at 215.) He was recommended for individual and group therapies for both his mental impairments and his drug addiction. (R. at 210.) During his time in the hospital, plaintiff began experiencing difficulties with an abscessed wisdom tooth. (R. at 194.) On August 29, 2004, plaintiff and his girlfriend went to the RN and demanded that he have immediate care for his wisdom tooth. (R. at 189.) Plaintiff's girlfriend ...


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