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Debaise v. Astrue

February 16, 2010

BENJAMIN A DEBAISE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Nora Barry Fischer, District Judge

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Benjamin A. Debaise ("Plaintiff") brings this action pursuant to 42 U.S.C. §405(g) and §1383(c)(3), seeking review of the final determination of the Commissioner of Social Security ("Commissioner") denying Plaintiff's claim for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act. The parties have filed cross motions for summary judgment (Docket nos. 8, 12)pursuant to Federal Rule of Civil Procedure 56, and the record has been developed at the administrative level. For the following reasons, the decision of the ALJ is supported by substantial evidence and Plaintiff's motion (Docket No. 8) will be denied and Defendant's motion (Docket No. 12) will be granted.

II. PROCEDURAL HISTORY

Plaintiff protectively filed his application for DIB on January 25, 2007, alleging disability since June 3, 2005 due to diabetes, vision problems, asthma, bipolar disorder, and cocaine addiction.

Plaintiff's claim was initially denied on March 12, 2007. (Docket No. 6-4 at 2)*fn1. He requested a hearing before an Administrative Law Judge ("ALJ") on May 16, 2007. (R. 94-5). A hearing was held on July 1, 2008. (R. 25-64). Plaintiff, who was represented by counsel, appeared and testified at the hearing. (Id.) Amy Debaise, Plaintiff's spouse, and Timothy Mahler, a vocational expert, also testified. (Id.). On September 30, 2008, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Act. (R. 12-28). The Appeals Council subsequently denied Plaintiff's request for review, thereby making the ALJ's decision the decision of the Commissioner in this case. (R. 1-6). Plaintiff now seeks review of that decision by this Court.

III. STANDARD OF REVIEW

This Court's review is limited to determining whether the Commissioner's decision is supported by substantial evidence. 42 U.S.C. § 405(g); Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). The Court may not undertake a de novo review of the Commissioner's decision or re-weigh the evidence of record. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). Congress has clearly expressed its intention that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. §405(g). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 522, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). As long as the Commissioner's decision is supported by substantial evidence, it cannot be set aside, even if the reviewing court "would have decided the factual inquiry differently."Haranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). "Overall, the substantial evidence standard is a deferential standard of review." Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).

In order to establish a disability under the Act, a claimant must demonstrate a "medically determinable basis for an impairment that prevents him from engaging in any 'substantial gainful activity' for a statutory twelve-month period." Stunkard v. Sec'y of Health and Human Servs.,841 F.2d 57, 59 (3d Cir. 1988); 42 U.S.C. §423 (d)(1). A claimant is considered unable to engage in substantial gainful activity "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423 (d)(2)(A).

An ALJ must do more than simply state factual conclusions to support her ultimate findings. Baerga v. Richardson, 500 F.2d 309, 312-13 (3d Cir. 1974). The ALJ must make specific findings of fact. Stewart v. Secretary of HEW, 714 F.2d 287, 290 (3d Cir. 1983). Moreover, the ALJ must consider all medical evidence contained in the record and provide adequate explanations for disregarding or rejecting evidence. Weir on Behalf of Weir v. Heckler, 734 F.2d 955, 961 (3d Cir. 1984); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).

The Social Security Administration ("SSA"), acting pursuant to its rule making authority under 42 U.S.C. §405(a), has promulgated a five-step sequential evaluation process to determine whether a claimant is "disabled" within the meaning of the Act. The United States Supreme Court summarized this process as follows:

If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further. At the first step, the agency will find non-disability unless the claimant shows that he is not working at a "substantial gainful activity." [20 C.F.R.] §§ 404.1520 (b), 416.920 (b). At step two, the SSA will find non-disability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." [20 C.F.R.] §§ 404.1520(c), 415.920(c). At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. [20 C.F.R.] §§ 404.1520(d), 416.920(d). If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called "vocational factors" (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. [20 C.F.R. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(c).

Barnhart v. Thomas, 540 U.S. 20, 24-5, 124 S.Ct. 176, 157 L.Ed. 2d 333 (2003)(footnotes omitted.)

If the claimant is determined to be unable to resume previous employment, the burden shifts to the Commissioner (Step 5) to prove that, given the claimant's mental or physical limitations, age, education, and work experience, he or she is able to perform substantial gainful activity in jobs available in the national economy. Heckler v. Campbell, 461 U.S. 458, 461(1983); Stunkard, 842 F.2d at 59; Kangas, 823 F.2d 775, 777 (3d Cir. 1987); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986).

IV. FACTS

A. General Background

Plaintiff was born on March 9, 1975. (R. 28). Plaintiff was thirty-one years old on the date he filed his application for DIB, and was thirty-four at the time of his hearing before the Administrative Law Judge ("ALJ"). (R. 13, 28). Plaintiff completed high school and two or three years of college. (R. 28, 40). Plaintiff's past relevant work can be generally classified as unskilled manufacturing and restaurant labor. (R. 132-36). Examples of Plaintiff's job titles during this period include: machine-operator, assembler, cook, bartender, fast food restaurant manager, kitchen manager/supervisor, and bouncer. (Id.). Starting in January of 2007 after being fired from the last job he held, Plaintiff claims he was unable to work full-time because of "issues dealing with stress" that exacerbated a bipolar disorder and low blood sugar related to diabetes (R. 47). Plaintiff has remained unemployed since January 3, 2007. (Docket No. 9 at 3). Plaintiff alleges the following conditions preclude him from gainful employment: diabetes, vision problems, asthma, bipolar disorder, and cocaine addiction. (Docket No. 9 at 2).

B. Medical History

Plaintiff is approximately 6'5" tall and weighs approximately 300 pounds. (R. 285, 593). His family history includes drug and alcohol abuse, and his father was also treated for mental illness. (R. 212, 617). His own medical history is complex, and marked by substance abuse. Plaintiff suffered from asthma, Type 1 Diabetes (diagnosed at the age of fourteen), and bipolar disorder for an uncertain period prior to his application for DIB. (R. 213). His problems with substance abuse include crack cocaine, marijuana, and painkillers since 1992. (R. 446).

The earliest medical records available indicate that Plaintiff completed an inpatient treatment program from July 30, 2002 to August 6, 2002 at the Greenbriar Treatment Center, a free-standing drug and alcohol treatment facility. (R. 199). Then, on March 6, 2003, Plaintiff was admitted to the ICU at Saint Vincent Health Center, as a transfer from Titusville Hospital, for a drug overdose and was seen by Dr. Elizabeth Pollard. (R. 212). Plaintiff gave a history indicating that he had been in rehabilitation for cocaine and marijuana abuse in the past. (R. 221). Per Dr. Pollard's orders, Plaintiff remained in the hospital for several days for observation. (R. 222).

On July 10 of that year, after he fell while at work and broke a rib, Plaintiff was seen by Dr. Arthur Lewis at the Titusville Area Hospital. (R. 268-76). Dr. Lewis filled out and signed a report that temporarily restricted the type and amount of work that Plaintiff could perform. (Id.).

Plaintiff saw Dr. C.E. Fougerousse, a psychiatrist at Sunbridge Health in State College, PA, for therapy from January of 2004 to April of 2006. (R. 278-83). Dr. Fougerousse's notes of their eleven sessions in that time document Plaintiff's mood changes, insomnia, cocaine use, difficulty achieving orgasm, and record numerous adjustments in his course of medications, including prescriptions for: Depakote ER, Lexapro, Abilify, Trazadone, Zyprexa, Lamictal, Effexor XR (Id.).*fn2

Plaintiff had a consultation with Dr. Rick D. Pasquariello on May 28, 2004. (R. 286-87).

During this appointment Plaintiff explained that he had a rib fracture from his fall at work, that he was in persistent pain despite the Percocet he received at the emergency room, especially when he took deep breaths, and that he was feeling nauseous. (Id.). Dr. Pasquariello prescribed a Duragesic patch. (Id.)*fn3

Plaintiff then saw Dr. Jan S. Ulbrecht on June 25, 2004 in the hopes of beginning insulin pump therapy for his diabetes. (R. 285-86). Since this was Plaintiff's initial visit, Dr. Ulbrecht decided to monitor Plaintiff's health while on his current diabetes treatment before determining whether Plaintiff needed the pump. (Id.).

Although Plaintiff was supposed to have a follow-up visit with Dr. Ulbrecht in one week, Plaintiff did not return until January 7, 2005, stating that he had obtained a new job and had thought that he was not permitted to take time off from work for doctor appointments. (R. 296-97). Dr. Ulbrecht remained hesitant to start Plaintiff on insulin pump therapy until he had further monitored Plaintiff's health and until Plaintiff was more responsible about monitoring it himself. (Id.). Dr. Ulbrecht discussed Plaintiff's binge eating and weight gain and Plaintiff told the doctor that he would make an appointment in the next week with Lynn Parker Klees, R.D., M.S., C.D.E., who has expertise in binge eating.

Plaintiff had a follow-up visit on January 28, 2005, to check his blood sugar level, which he had been monitoring since his last appointment.(R. 295). Dr. Ulbrecht ordered Plaintiff to have blood tests done after this visit in order to continue monitoring his diabetes. (Id.). A second follow- up occurred on April 29, 2005, when Dr. Ulbrecht commented that Plaintiff had been testing and recording his blood sugar levels twice a day, which showed high variability. (R. 294). Dr. Ulbrecht told Plaintiff to keep a food diary of his daily food intake and set up an appointment for the next week so Plaintiff could discuss his binge eating with Ms. Klees, with whom he had still not met. (R. 294). A third follow-up visit occurred on May 9, 2005, where Dr. Ulbrecht and Plaintiff reviewed Plaintiff's blood sugar levels, Plaintiff discussed managing his binge eating with Ms. Klees, and Dr. Ulbrecht decided to start pump therapy with the Plaintiff at his next appointment. (R. 293). However, Plaintiff's next appointment with Dr. Ulbrecht was not until August 19, 2005 and was a yearly check-up rather than a follow-up appointment to begin pump therapy. (R. 291). Dr. Ulbrecht noted that Plaintiff is inconsistent in testing his blood sugar levels and taking his insulin. (Id.) He reported that Plaintiff had not started pump therapy. (Id.). Plaintiff had blood tests after this visit and Dr. Ulbrecht determined that he needed to coordinate with Plaintiff's psychologist in order to best treat him. (Id.).

On March 3, 2006, Plaintiff was seen by Michael J. Talone, OD, of the Nittany Eye Associates, for a routine diabetic eye evaluation, and Dr. Talone reported to Dr. Pasquariello that Plaintiff was "doing well" in April of that year. (R. 621).

Plaintiff did not return to see Dr. Ulbrecht until June 30, 2006. (R. 301). Plaintiff reported that since his previous visit he had been put on Synthroid and had been hospitalized in UPMC Western Psychiatric Institute, but no records of that hospitalization are in the record.*fn4 (Id.). Dr. Ulbrecht continued to report that the best treatment for Plaintiff would be to coordinate treatment methods with Plaintiff's psychologist or psychiatrist and to further monitor Plaintiff to decide whether he could handle insulin pump therapy. (Id.).

On August 1, 2006, Dr. John Boswell saw Plaintiff for a psychiatric consultation. (R. 622). Dr. Boswell reported his findings on Plaintiff's psychological conditions associated with his bipolar disorder to Dr. Pasquariello, including mood swings, manic episodes, and binge eating, and he started Plaintiff on a "trial on Lithium in combination with Depakote."*fn5 (R. 622-23).

Plaintiff failed to make his scheduled follow-up appointment with Dr. Ulbrecht and did not return until August 14, 2006. (R. 303). Dr. Ulbrecht noted that Plaintiff had started to see Dr. Boswell and that Plaintiff's "diabetes self-care is basically atrocious." (Id.).

Plaintiff then returned to Dr. Pasquariello on August 15, 2006, to treat a rash that had developed after being prescribed Lithium and Ativan by Dr. Boswell.*fn6 (R. 302). Dr. Pasquariello told Plaintiff to discontinue use of Lithium and to use over-the-counter medicines like Benadryl and Claritin pm Pruritus to treat the rash. (Id.).

Plaintiff saw psychologist Dr. Dennis W. Kreinbrook, Ph.D. and others at Kreinbrook Psychological Services sporadically from October 24, 2006 to February 23, 2007, for his bipolar disorder. (R. 378-97). They recorded Plaintiff's past drug use, his father's bipolar disorder, and Plaintiff's mood swings over the course of their appointments; he continually adjusted Plaintiff's medications, and reported that Plaintiff scored 50-41, indicating "serious symptoms or serious impairment in functioning," on the Global Assessment of Functioning Scale.*fn7 (Id.).

At this time, Plaintiff also saw Dr. Stephen Kowalyk for treatment of his diabetes. (R. 350-66). Dr. Kowalyk kept a record of the Standards of Care for Diabetes Mellitus over the six times he saw Plaintiff from November 1, 2006 to August 27, 2007. (R. 355-66). He recorded information such as Plaintiff's height and weight, his LDL and HDL cholesterol levels, his triglycerides, and his HGB A1C (hemoglobin associated with diabetes) levels. (Id.).

Plaintiff saw an internal medicine physician, Dr. Steven E. Mills around the same time on two occasions, November 22, 2006 and December 11, 2006, in connection with feeling shaky from diabetes. (R. 342-49). At the follow-up visit on December 11, 2006, Dr. Mills ordered that Plaintiff have an EKG, which found that his "sinus rhythm [was] within normal limits." (Id.).

Plaintiff next saw Dr. Alexandre Dombrovski, a psychiatrist at Kreinbrook Psychological Services, as an outpatient from December 2, 2006 to April 9, 2008. (R. 568-90). Dr. Dombrovski recorded Plaintiff's medical history, noting chronic depression, insomnia, cocaine use relapse, his later abstinence from using cocaine, second relapse, further abstinence from cocaine use, and Plaintiff's ECT therapy*fn8 after his fifth suicide attempt. (Id.). Throughout the period of time in which Plaintiff sought treatment, Dr. Dombrovski prescribed and adjusted the dosages of numerous drugs, including: Geodon, Depakote, Cymbalta, Rozerem, Synthroid, Levitra, Humalog, Benadryl, Ativan, Prilosec, Lantus, Lisinopril, and Sonata.*fn9 (Id.).

Meanwhile, the Mutual Aid Ambulance Service was repeatedly called to assist Plaintiff during moments of crisis at home: first, on December 12, 2006, by Plaintiff's wife because Plaintiff was unresponsive when she tried to wake him. (R. 526). The EMTs checked his glucose level, monitored his heart, and gave him Dextrose, but Plaintiff refused to be transported to the hospital.

(R. 527).

Plaintiff saw David Green, OD for an eye examination on December 18, ...


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