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Babilya v. Astrue

September 30, 2009


The opinion of the court was delivered by: Lenihan, Magistrate Judge

Doc. Nos. 10 & 12


Acting pursuant to 42 U.S.C. § 405(g), Gary Babilya ("Babilya" or "Plaintiff") appeals from a February 15, 2007 decision of the Commissioner denying his application for disability insurance ("DIB") and supplemental security income ("SSI"). Cross Motions for Summary Judgment are presently before the Court. The Motion filed by Plaintiff at Doc. No. 10 will be denied, and the Motion filed by the Commissioner at Doc. No. 12 will be granted.

Procedural Background

On October 6, 2005, the Plaintiff filed his application for DIB and SSI, alleging that he has been disabled since April 1, 2003. (Tr. 36, 47) He described the conditions precluding his ability to engage in substantial gainful activity as drug and alcohol abuse and possible mental disorders. (Tr. 57) Following an initial denial of benefits on May 9, 2006 (Tr. 36), Plaintiff requested a hearing. (Tr. 37)

The hearing on Plaintiff's application took place on December 7, 2006, before administrative law judge ("ALJ") Patricia C. Henry, in Latrobe, Pennsylvania. (Tr. 376-416) Plaintiff, who was represented by counsel, testified, along with an impartial vocational expert. Plaintiff's mother, Joan Babilya also testified. (Tr. 376) At the time of the hearing, Plaintiff was a 46 year-old divorced high school graduate. (Tr. 380-81)

Plaintiff testified that he lives in one room of his parents' hotel which is connected to a trailer where his parents live. (Tr. 381) His mother does his laundry and makes his dinners. (Tr. 381) His drivers license was suspended due to a DUI violation. (Tr. 382) Since alleging disability in April 2003, Plaintiff has worked sanding and delivering kitchen cabinets, and as an assembly line worker. (Tr. 384-85) Plaintiff testified that he has not drunk alcohol for one and one half to two years. (Tr. 385) He indicated that he has been going to drug and alcohol outpatient treatment three times a week for one year. (Tr. 385-86) He testified that as part of the program, he is urine tested frequently. (Tr. 386) Plaintiff's medications at the time of the hearing included Zyprexa for depression, Depakote, Effexor, Trazodone, and Oxycodone. (Tr. 389) He believes that some or all of these medications cause him to sleep all the time; he has never been an inpatient in a psychiatric hospital. (Tr. 389) Other than going to drug and alcohol rehabilitation three times a week, Plaintiff testified that he does nothing but lie around and sleep all day. (Tr. 390) Plaintiff indicated that he has no friends and does not socialize, other than talk with men who also have rooms in his parents' hotel. (Tr. 390) He complained that his knee is still numb from an August 20, 2006 automobile accident, his elbows hurt, and he cannot straighten his back. (Tr. 392) Plaintiff testified that even with medication, he still suffers from mood swings and has a short temper. (Tr. 393) His mother has to remind him to take showers and to shave. (Tr.393) He does no grocery shopping. Plaintiff testified that he can lift nothing and that all his doctors have indicated that he cannot work. (Tr. 395) He stopped physical therapy because his insurance would no longer cover it. He indicated that even with hydrocodone, his lower back and neck still hurt. (Tr. 396) He testified that he limps as a result of breaking his toe in the August 20, 2006 car accident. (Tr. 396-97) Even though he sleeps all day, he does not feel rested. He receives laser therapy on his back as a result of the car accident.

Plaintiff's mother testified that she does Plaintiff's laundry, cooking, and shares the responsibility of taking him to his doctors' appointments with her husband. (Tr. 401-02) Plaintiff's father does the grocery shopping. (Tr. 402) She tells Plaintiff when to shower and shave. She indicated that when he gets a job, he loses it in a few weeks. He lost a job for falling asleep while working. She testified that his eating habits are inconsistent and that he has a bad temper. (Tr. 403) As to Plaintiff's sleeping habits, she testified that he will sleep 12 or 14 hours a day, and sometimes he does not get out of bed and she will go and check on him to be sure he is alright. (Tr. 404) She testified that she believes Plaintiff is not using drugs or alcohol since he has been attending outpatient classes three days per week.

Standard of Review

The standard of judicial review is whether the Commissioner's decision is supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401; Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552 (1988)); Smith, 637 F.2d at 970; Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). "Substantial evidence" is more than a "scintilla." Jesurum v. Secretary of United States Dep't of Health and Human Servs., 48 F.3d 114, 117 (3d Cir. 1995); Stunkard v. Secretary ofHealth and Human Servs., 841 F.2d 57, 59 (3d Cir. 1988); Smith, 637 F.2d at 970. If supported by substantial evidence, the Commissioner's decision must be affirmed.

The Supreme Court has described a five-part test established by the Commissioner to determine whether a person is disabled: The first two steps involve threshold determinations that the claimant is not presently working and has an impairment which is of the required duration and which significantly limits his ability to work. See 20 C.F.R. §§ 416.920(a) through (c) (1989). In the third step, the medical evidence of the claimant's impairment is compared to a list of impairments presumed severe enough to preclude any gainful work. See 20 C.F.R. pt. 404, subpt. P, App. 1 (pt. A) (1989). If the claimant's impairment matches or is "equal" to one of the listed impairments, he qualifies for benefits without further inquiry. § 416.920(d). If the claimant cannot qualify under the listings, the analysis proceeds to the fourth and fifth steps. At these steps, the inquiry is whether the claimant can do his own past work or any other work that exists in the national economy, in view of his age, education, and work experience. If the claimant cannot do his past work or other work, he qualifies for benefits. §§ 416.920(e) and (f). Sullivan v. Zebley, 493 U.S. 521, 525-26 (1990). Accord Barnhart v. Thomas, 124 S.Ct. 376, 379-80 (2003). The initial burden rests with Plaintiff to demonstrate that he is unable to engage in his past work. Stunkard, 841 F.2d at 59; Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981); Dobrowolsky, 606 F.2d at 406; Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979). The burden then shifts to the Commissioner to show that other work exists in the national economy that he could perform. Green v. Schweiker, 749 F.2d 1066, 1071 (3d Cir. 1984). The fifth step is divided into two parts:

First, the [Commissioner] must assess each claimant's present job qualifications. The regulations direct the [Commissioner] to consider the factors Congress has identified as relevant: physical ability, age, education, and work experience. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f) (1982). Second, [he] must consider whether jobs exist in the national economy that a person having the claimant's qualifications could perform. 20 C.F.R. §§ 404.1520(f), 404.1566-404.1569 (1982).

Heckler v. Campbell, 461 U.S. 458, 460-61 (1983) (footnotes omitted).

The ALJ's Decision

The ALJ found that Plaintiff had a number of severe impairments, including sleep apnea, degenerative disc disease, bipolar disorder, and polysubstance abuse, anxiety disorder and personality disorder. (Tr. 19) When Plaintiff uses drugs and alcohol, the ALJ found that Plaintiff's bipolar disorder meets Listing 12.04 Affective Disorder, his Anxiety disorder meets Listing 12.06, his Personality disorder meets listing 12.08, and his Substance Abuse Disorder meets Listing 12.09 of 20 C.F.R. Part 404, Subpart P, Appendix1 (20 C.F.R. 416.920(d)). (Tr.19) In the absence of polysubstance abuse, the ALJ found that the Plaintiff's anxiety and bipolar/depressive disorder would continue to cause more than a minimal impact on his ability to perform basic work activities, and therefore, would continue to be severe. (Tr. 23) The ALJ also noted that there was "no evidence to show that he would have a personality disorder exhibiting aggressiveness or hostility absent his drug and alcohol use." (Tr. 23) The ALJ then found that absent polysubstance abuse, Plaintiff's anxiety and depressive disorders would not meet Listing 12.04 Affective Disorder, and Listing 12.06 Anxiety Disorder of 20 C.F.R. Part 404, Subpart P, Appendix1 (20 C.F.R. 416.920(d)). Thereafter, the ALJ found that Plaintiff has: the residual functional capacity to engage in light work . . ., that avoids balancing, stooping, kneeling, crouching, crawling or climbing of ladders, ropes, scaffolds, ramps or stairs; is limited to no more than simple, routine, repetitive tasks, not performed in a fast paced production environment; involves only simple, work related decisions; relatively few work place changes and no more than occasional interaction with supervisors, co-workers or the public.

(Tr. 24) The ALJ further found that Plaintiff is unable to perform any past relevant work (Tr. 26). Finally, relying on the testimony of the vocational expert, the ALJ concluded that considering Plaintiff's "age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the [Plaintiff] can perform." (Tr. 27)

Having carefully reviewed the entire record, the undersigned concludes that the ALJ's decision was neither erroneous nor unsupported by substantial evidence. Accordingly, the Court will limit its ...

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