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Pukis v. Commissioner of Social Security

United States District Court, N.D. Indiana, Hammond Division

February 3, 2014

JOHN PUKIS, Plaintiff,


JON E. DEGUILIO, District Judge.

On September 11, 2009, Claimant John Pukis applied for Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income Benefits ("SSI") with an alleged disability onset date of January 5, 2009.[1] [Administrative Record, hereafter "AR", 232-41]. Pukis's application was denied and he requested a hearing before an Administrative Law Judge ("ALJ"). [AR 157]. The hearing was held on April 1, 2011, before ALJ Curt Marceille in Gary, Indiana. [AR 76-119]. Pukis and a Vocational Expert ("VE") testified, with Pukis's attorney in attendance. Id. On May 6, 2011, the ALJ issued a decision finding Pukis not disabled under the Social Security Act [AR 57-69], concluding that he had the residual functional capacity ("RFC")[2] to perform jobs that existed in significant numbers in the national economy. [AR 68-69]. On August 27, 2012, the Appeals Council denied Pukis's request for a review of the ALJ's decision, at which point the ALJ's decision became the final decision of the Commissioner. [AR 1-3].

On October 31, 2012, Pukis filed his complaint in this Court pursuant to 42 U.S.C. ยง 405(g), alleging that the ALJ's decision was in error. [DE 1]. On March 26, 2013, the Commissioner filed an answer to Pukis's complaint. [DE 12]. On June 6, 2013, Pukis filed his opening brief [DE 16], on September 11, 2013, the Commissioner filed a response [DE 22], and on September 30, 2013, Pukis filed his reply. [DE 24]. For the reasons that follow, the Court finds a remand is necessary because the ALJ's findings relative to medical equivalence and Pukis's RFC were not sufficiently substantiated with evidence in the record.


John Pukis was born on July 11, 1961. [AR 232]. Pukis was 49 years old at the time of the ALJ's opinion, and he suffers from neck pain [AR 84-85], chronic back pain from osteoarthritis, chronic obstructive pulmonary disease ("COPD") [AR 578], difficulties with standing and sitting for a long period [AR 83-84], depression and suicidal thoughts [AR 96-97], pain in the right shoulder from a previous surgery, and pain in the right knee and left ankle from previous injuries. [AR 103]. He has reportedly attempted to commit suicide 10-12 times since 1985. [AR 94]. Pukis has more recently been diagnosed with alcohol and opiate dependence [AR 1971-72; 1193-96], and he was previously addicted to heroin "on and off" after his military discharge in 1984 until 2006. [AR 95].

Pukis received a GED in 1980. [AR 306]. He served in the United States Military from November 3, 1980 to February 13, 1984. [AR 232]. In the 15 years prior to his disability application, Pukis worked as a laborer, steel worker, and as an ultrasound operator. [AR 114, 308]. Even after having surgery in 1995 for biceps tenodesis of the right shoulder [AR 460, 715, 969, 978], he was able to work from 1995 through 2005 in iron manufacturing. [AR 602]. Pukis stopped working on January 5, 2009 [AR 308], when he was terminated due to missing work while incarcerated, and his records reflect he had violated his probation due to substance abuse. [AR 81-82]. After termination he actively searched for employment but could not find work which he could physically perform. [AR 83-84]. He remained insured for the purposes of DIB until March 31, 2013. [AR 57].

A. Medical Health History

On January 22, 2006, Pukis was admitted into the ER subsequent to becoming unconscious after a heroin overdose and it was noted he had depressive thoughts. [AR 599-603]. Upon admission, Pukis had a Global Assessment of Functioning ("GAF") of 30[3] [AR 500], and he stated that he "almost died, overdosed on heroin." [AR 601]. Pukis's past psychiatric history indicated that he was a substance abuser, but indicated he had gone weeks without a drink prior to his admittance. [AR 602]. On January 24, 2006, Pukis requested to be discharged, stated that his withdrawals had passed, and that upon admission he actually did not intend to kill himself, but rather felt as if he would die if he continued his life style. [AR 603]. Upon discharge, his health summary indicated he had substance induced mood disorder, alcohol dependence, heroin dependence, a history of marijuana use, and a GAF score of 40.[4] [AR 600].

General medical evaluations in March of 2006 revealed that Pukis was suffering from depression and right elbow pain. [AR 994-998]. Over a year later, in September through October of 2007, Pukis visited Dr. Ham at Bone & Joint Specialists, P.C., who determined that Pukis suffered from a stiff right elbow on account of arthritis and cubital tunnel syndrome, and it was suggested that Pukis undergo surgery by having a contracture release performed. [AR 463-64]. After having the surgery in late October 2007, Pukis began receiving therapy. On January 16, 2008, Pukis attended a follow-up visit wherein he reported no complaints and planned to return to work as a welder on January 28. [AR 457]. Dr. Ham determined that Pukis was doing well and would in fact be released to work, without restriction, by January 28, 2008. [AR 457; AR 481].

However, on August 25, a follow-up study of Pukis's right elbow indicated he had arthritis of the elbow and two small metallic tuck points at the level of the medical humeral epicondyle. [AR 647-48]. On October 1, 2008, an X-ray of Pukis's right elbow displayed diffuse significant osteoarthritis with small suture anchors on the medial distal humerus. [AR 970].

In April 2008, Pukis went to St. Catherine Hospital due to chest pain that he began feeling while at work, and he was discharged later that day with a diagnosis of chest pain, anxiety, and hypertension. [AR 1774, 1778-81]. On August 15, 2008, an Emergency Department record indicated that Pukis was feeling depressed, empty, and lost. [AR 993]. Pukis claimed during his visit that he had been laid off work for the past 2 months at that point. Id. He denied having suicidal ideation ("SI"), but noted that his mother passed away in February of that year. [AR 985]. His mental evaluation indicated a history of heroin abuse and years of depression which was becoming progressively worse. Id. The evaluation noted that Pukis had developed a phobia of crowds during the last 5-6 years, that he had panic attacks on occasion, and that he had difficulty falling asleep, which he attributed in part to his elbow pain. Id.

A psychiatry attending note from September 17, 2008 indicated that there was also some concern that Pukis was having seizures, which required further evaluation. [AR 975-78]. Pukis continued to experience stress from his chronic pain in his right shoulder, elbow, and wrist, as well as hypertension, COPD, Hepatitis C, and a history of two head injuries. [AR 978-80]. He was diagnosed with opiate dependency, polysubstance abuse, chronic pain, depressive and anxiety symptoms, and possible seizures. [AR 980]. Pukis received a GAF score of 50.[5] Id.

In August 2008, an x-ray imaging of Pukis's right elbow revealed a low narrowing and arthritis, along with the presence of two small metallic tuck points at the level of the medial humeral epicondyle. [AR 648]. On October 1, 2008, an orthopedic surgery consultant determined that Pukis had significant right elbow pain and stiffness following prolonged immobilization of his right upper extremity and noted that Pukis was taking a variety of narcotics for this pain. [AR 969-970].

A neurology report taken the next day indicated that Pukis's left temporal region displayed a mild to moderate slow wave abnormality, indicating a neurological disturbance. [AR 969]. And a psychiatric progress note completed two weeks later by Dr. Constance Phillips indicated that Pukis was no longer being prescribed vicodin for his chronic arm pain, and that he wanted to be placed on methadone treatment for his withdrawal symptoms [AR 966]. He claimed to still be in pain and also denied any heroin use since the summer of 2008. Id. Pukis received a GAF score of 45 that session. [AR 968]. A follow up progress report by Dr. Phillips on November 13, 2008 noted that Pukis was experiencing myoclonic jerks in the middle of the night, but no other seizure-like activity. [AR 962]. The doctor's diagnostic impressions included depressive disorder not otherwise specified ("NOS"), anxiety NOS, opiate dependency, history of polysubstance abuse, chronic pain in the right arm, and seizure disorder. [AR 963]. Pukis received a GAF score of 50. Id.

Pukis was next seen at the hospital in January of 2009 due to intolerable left shoulder pain that he had been having for one and a half weeks, which was diagnosed as musculoskeletal arm pain. [AR 1791-94]. Pukis denied any known injury and was able to move the arm independently to change into his hospital gown. [AR 1794]. He was discharged the following day in stable condition. [AR 1796].

Then on February 2, 2009, Dr. Phillips created a suicide risk assessment note, where she indicated that Pukis's risk level was low and that he was doing better, sleeping 8-10 hours a night, and staying clean from opiates and alcohol. [AR 710-711]. The doctor's diagnostic impressions included depressive disorder NOS, anxiety NOS (consider panic disorder with agoraphobia), opiate dependency in recovery, history of polysubstance abuse, chronic pain in the right arm, and history of a seizure disorder. [AR 712]. Pukis received a GAF score of 50. [AR 961].

However, later that month, Pukis was hospitalized for three days after having become increasingly suicidal and drinking to "quiet the thoughts in his head." [AR 578-79]. Upon admission, he indicated he was ready to overdose with ten bags of heroin. [AR 581]. He reported having lost his job and having been a heroin addict for 23-24 years. [AR 581]. He also admitted to recently using heroin on a daily basis, drinking two to three fifths of liquor daily, and using methadone, benzodiazepines, and narcotic analgesics "off the street." [AR 579]. He claimed to have taken his medications regularly with little benefit. [AR 703]. Pukis's drug screen indicated a positive result for benzodiazepine. [AR 579, 1819]. Pukis received therapy and stated he wanted to work on maintaining sobriety and obtaining unemployment insurance. Id. Upon admission his GAF score was 38, and upon his February 27 discharge, his GAF score was 51. He was diagnosed with opiate dependence, alcoholic dependence, depressive disorder, COPD, chronic pain, osteoarthritis, abnormal EEG, and Hepatitis C. [AR 578].

A mental health progress note from March 2, 2009, created by Dr. Phillips, reported that Pukis was feeling 100% better since his previous hospital admission. [AR 635]. He denied having any SI and claimed he was fully compliant with the citalopram (used to manage depression). Id. However, a follow-up report a week later indicated that Pukis was only getting 3-4 hours of sleep a night (which continued throughout the month) and that he was drinking multiple beers daily, but he denied using opiates or cocaine. [AR 631-33]. When social workers attempted to contact Pukis the following month, they could not reach him and instead reached his girlfriend who noted that he was doing "excellent." [AR 628]. By mid April 2009, Dr. Phillips noted Pukis had not been following through with appointments and she was concerned about his desire to commit to less structured/intensive services. [AR 627]. When Dr. Phillips finally reached Pukis in late April 2009, he claimed to be doing well mood-wise, and indicated that he remained clean from illegal drugs, but had been drinking 1-2 beers per day. [AR 625]. Pukis was not sure whether the gabapentin was doing much for his anxiety, and he reported that he was taking a lot of ibuprofen for his chronic pain. Id.

When Pukis actually met with Dr. Phillips in late April 2009, Dr. Phillips determined that Pukis suffered from recurrent depressive disorder, anxiety disorder, polysubstance dependence, and assigned him a GAF score of 45. [AR 620-623]. On June 9, 2009, Pukis met with Dr. Phillips again, and claimed that he was clean and sober, denied having any side effects with his current medications, and stated that he was only sleeping 4-6 hours per night. [AR 617]. Dr. Phillips referred Pukis for individual psychotherapy to reduce his anxiety. [AR 618].

On July 11, 2009, Pukis was admitted to the St. Mary Medical Center Emergency Department after hitting a wall while operating a motorcycle inebriated. [AR 532-35]. Pukis had an ankle sprain, multiple external abrasions, and road rash on his left arm and the left side of his chest. [AR 534-35]. CT scans performed of his skull proved negative, but left ankle scans revealed an old injury. It was also determined that he had mild arthritic changes in his spine at C7. [AR 546-52]. Pukis's drug screen was negative for amphetamine and barbiturates, but positive for benzodiazepines. [AR 553]. He was discharged the same day. [AR 530].

On August 24, 2009, a psychology progress note conducted after Pukis met with psychiatric coordinator Dr. Ronald Ballenger, indicated that he was feeling suicidal the past few weeks, but not that particular day. [AR 612-13]. Pukis admitted he missed his last session due to being drunk. [AR 613]. Pukis noted that he had felt suicidal and depressed over the past several years. [AR 613]. He was assigned a GAF score of 45 and he reported a pain level of 4 in his left elbow. [AR 614]. Pukis also met with Dr. Phillips that day and admitted that he had already drank beer that day, that he had been buying alprazolam on the street, and that while he remained clean from narcotics and cocaine, he felt like "he has been losing it again." [AR 615].

A general medical note from early September 2009 indicates that Pukis was being reevaluated for smoking and treated for alcohol use. [AR 609]. At the time of the visit, his documented body mass index was 28.5. Id. During his visit, Pukis admitted that his drinking made it somewhat difficult for him to do normal activities, such as work, take care of things at home, and get along with others. [AR 610]. Pukis denied having thoughts about suicide. Id. It was noted that he demonstrated a positive screen for PTSD. Id. Later that month, Pukis spoke with Dr. Phillips, during which Pukis expressed concerns about his anxiety and fleeting SI with no plans or intent. [AR 609]. He stated that he was still drinking and denied relapsing with opiates or cocaine. Id.

Licensed clinical psychologist Patrick McKian, Ph. D., performed a mental status examination of Pukis on October 7, 2009. [AR 715]. Pukis indicated he was claiming disability because of his loss of mobility of his right arm and shoulder after having surgery in 1996 and elbow and wrist surgery in October 2008. Id. Pukis noted that his medical symptoms included shortness of breath much of the time, chronic pain in the right arm, and tingling and numbness of the fingers in his right hand. [AR 716]. Pukis also reported that he was suffering from COPD, Hepatitis C, depression and anxiety, and substance abuse problems [AR 715], but he was able to take care of his own personal hygiene. While he had no hobbies, he used to be good at chess but began having a difficult time concentrating. [AR 717]. McKian determined that Pukis suffered from recurrent major depression, as evidence by his multiple hospitalizations, depressed mood, social withdrawal, apathy, loss of interest in most activities, loss of appetite, and sleep disturbance. [AR 718]. McKian concluded that Pukis often used drugs and alcohol as a way to self medicate prior to receiving treatment, which was probably exacerbating his depression. Id. McKian also opined that Pukis had chronic pain in his right shoulder, elbow, and wrist, shortness of breath, possible seizure disorder, and Hepatitis C. McKian assigned Pukis a GAF score of 60.

On October 19, 2009, Pukis was admitted into the in-patient psychiatric floor in Dyer for three days after he had taken a razor blade and cut his left wrist in the presence of the police. [AR 605-08, 722, 1967]. His blood alcohol level was high upon admission. [AR722]. Pukis claimed that he had cut himself to relieve himself of the guilt from trying to hurt his girlfriend recently, and not because of suicidal thoughts. [AR 605, 877]. He reported that he was experiencing pain in his right shoulder. Id. He acknowledged that he had stopped taking both the citalopram and the gabapentin medications due to feeling itchy. [AR 607]. Pukis stated that he has continued to drink about 2-3 beers daily. Id. He denied any relapse with heroin or cocaine and any cravings for drugs. Id. While in in-patient care, Pukis stated that his sleep fluctuated and he had poor concentration. [AR 1967]. He denied any SI, but admitted that he had attempted suicide 2-3 times in the past after overdosing on heroin. Id. He was discharged on October 22, 2009, with a GAF score of 35-40, and his discharge diagnoses included alcoholic dependence, history of opiate and cocaine abuse, depression, anxiety (rule out substance induced mood disorder with anxiety and generalized anxiety disorder). [AR 724]. A week later, Pukis met with Dr. Phillips and claimed that he was feeling alright, but that he was having bad nightmares and panic attacks. [AR 875].

The next month, Pukis was evaluated by psychologist Ronald Ballenger, who indicated that Pukis had dysthymic disorder, opiate dependency in early recovery, polysubstance abuse, and a GAF score of 45. [AR 747-48]. During the evaluation, Dr. Ballenger reviewed Pukis's cutting behavior, and Pukis expressed that he did not know what he was thinking when he cut himself. [AR 748]. He exclaimed that he no longer had a desire to kill himself. Id.

On November 11, 2009, Pukis was examined by Dr. Smejkal who indicated that Pukis presented with complaints of right arm and elbow pain/stiffness, depression, suicidal thoughts, COPD, Hepatitis C, and shortness of breath. [AR 752-56]. Dr. Smejkal indicated that although Pukis had pain and stiffness in his right arm and elbow, he did not have a decreased range of motion and retained full strength with normal grip strength and good fine finger manipulative abilities. Id. His impression was that Pukis suffered from a history of osteoarthritis in his right elbow and arm, Hepatitis C, depression, and suicidal tendencies, and that he also suffered from COPD and had previously had bones spurs removed from his right elbow. Id.

On November 16, 2009, a CT head scan was conducted due to an abnormal EEG, and the report indicated that Pukis shakes in his sleep. [AR 806]. The findings were consistent with mild cerebral and cerebellar atrophy and pansinusitis. [AR 807].

On November 17, 2009, a psychology progress note indicated that Pukis had dysthymic disorder, opiate dependency in early recovery, and polysubstance abuse, and he was drinking beer and hard liquor a few times a week. [AR 870-73]. Pukis received a GAF score of 45 that day. [AR 874]. A neurology note created two days later reported that Pukis had black out periods involving moments of waking up and not knowing what happened, and that he suffered from jerking "fits" in his sleep. [AR 867]. A November 23, 2009, medical progress note indicated that Pukis had sinusitis. [AR 866].

A psychiatric review technique and mental RFC assessment performed by Donna Unversaw, Ph.D., on December 1, 2009, indicated that Pukis suffered from recurrent major depression and generalized anxiety disorder, and he was polysubstance dependent (alcohol, heroin, and benzodiazepine). [AR 771-88]. Dr. Unversaw found that Pukis had mild limitations with restrictions in activities of daily living, moderate difficulties with maintaining social functioning and maintaining concentration, persistence, or pace, and no episodes of decompensation (each of an extended duration) or evidence of "C" criteria". Dr. Unversaw determined Pukis was not significantly limited in his abilities to remember locations and worklike procedures; to understand, remember, and carry out very short and simple instructions; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; to sustain an ordinary routine without special supervision; to work in coordination with or proximity to others without being distracted by them; to make simple workrelated decisions; to interact appropriately with the general public; to ask simple questions or request assistance; to accept instructions and respond appropriately to criticism from supervisors; to maintain a socially appropriate behavior; to adhere to basic standards of neatness and cleanliness; to respond appropriately to changes in the work setting; to be aware of normal hazards and take precautions; to travel in unfamiliar places or use public transportation; and, to set realistic goals and make plans independently of others. [AR 785-86]. Dr. Unversaw also opined that Pukis was moderately limited in his abilities to understand, remember, and carry out detailed instructions; to maintain attention and concentration for extended periods; to complete a normal workday and workweek without interruptions from psychologically based symptoms; to perform at a consistent pace without an unreasonable number and length of rest periods; and, to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Id. Dr. ...

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