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Brooks v. Colvin

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

March 27, 2014

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


JOHN E. MARTIN, District Judge.

This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Billy Ray Brooks on May 23, 2012 and Plaintiff's Memorandum in Support of Motion for Summary Judgment or Remand [DE 18], filed by Plaintiff on October 16, 2012. Plaintiff requests that the February 16, 2011, decision denying Plaintiff's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") be reversed or remanded. For the reasons set forth below, the Court denies Plaintiff's request for remand.


Plaintiff filed an application for Disability Insurance Benefits on July 16, 2009, and an application for Supplemental Security Income on July 25, 2009, alleging disability as of October 23, 2001, due to post traumatic stress disorder ("PTSD"), substance-induced mood disorder, coronary artery disease, congestive heart failure, chronic obstruction lung disease, high blood pressure, and high cholesterol. An earlier application had been denied on May 25, 2005, so that only the time period beginning on May 26, 2005, is relevant to the current claim. After his claim was denied on October 28, 2009, and again on reconsideration on January 10, 2010, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). A hearing was held before ALJ Roxanne J. Kelsey on January 28, 2011. Plaintiff and a Vocational Expert ("VE") testified. The ALJ issued a decision on February 16, 2011, finding Plaintiff not disabled and denying benefits. On February 21, 2012, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. § 404.981. On May 23, 2012, Plaintiff filed suit in this Court for review of the Commissioner's decision.

The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42 U.S.C. § 405(g).


A. Background

Plaintiff was 43 years old on May 26, 2005. He had completed a high school education and was trained to repair vehicle air conditioning systems. He served in the military and is a veteran of Operation Desert Storm. He has past relevant work as a tractor trailer mechanic.

B. Medical Evidence

1. Substance Abuse

Plaintiff's record contains a long history of substance abuse. On April 12, 2005, Plaintiff voluntarily reported to the emergency room requesting treatment for substance abuse after being given an ultimatum by his parents to get help or move out of their home. He reported that he had been using cocaine for the previous five years and also had a long history of marijuana use. He also reported occasional alcohol use. Plaintiff was admitted for inpatient treatment at a Veteran's Affairs ("VA") hospital in Florida. Plaintiff reported significant family and socioeconomic impairment secondary to drug use and stated that he had twice attempted suicide, but he said "he was not depressed before he started using drugs." AR 735. The admitting doctor assigned a Global Assessment of Functioning ("GAF") score of 40. Upon discharge on April 18, 2005, he was given a GAF of 45.

On November 5, 2005, Plaintiff was again admitted to the emergency room after using cocaine. He reported having attempted suicide twice in the previous two weeks. He was released the same day, but he returned to the hospital on November 16, 2005 after again using cocaine. He was admitted for inpatient care and assigned a GAF of 30-40 at admission. He was discharged on November 21, 2005, with a GAF of 65. On January 3, 2006, Plaintiff was referred to a VA Substance Abuse Treatment Team for his continued cocaine use, but Plaintiff stated that his cocaine use was "not a problem" because he was only using once a week, not every day like in the past. AR 590. On June 29, 2006, Plaintiff again reported for treatment from the Substance Abuse Treatment Team program. The record notes that Plaintiff was "court ordered to do so." AR 584.

In January 2007, after serving six months in jail, Plaintiff moved back to Indiana. On December 7, 2007, Plaintiff saw VA staff psychiatrist Dr. Adam Karwetowicz for problems with anger. He reported that he quit using cocaine eighteen months earlier, but that he continued to use cannabis on the weekends. Dr. Kawetowicz assigned a GAF score of 53. Plaintiff saw Dr. Karwetowicz again in April and July 2008. He denied cocaine use, but admitted to continued use of cannabis. On November 5, 2008, Dr. Karwetowicz created a substance abuse treatment plan for Plaintiff to treat his cannabis and alcohol abuse. On January 26, 2009, Plaintiff reported to Dr. Karwetowicz that he was using cannabis "rarely" and drinking "a few beers several times a week" but that he had not used cocaine in three years. AR 851.

On May 19, 2009, Plaintiff was admitted to the emergency room after he attempted suicide. He was transferred to the VA hospital, where he was assigned a GAF of 15 at admission. He reported that he attempted to overdose on prescription medications after becoming depressed because he relapsed on crack cocaine. He reported that he had continued to use cannabis multiple times a week prior to his relapse. Plaintiff was hospitalized for ten days. Upon discharge on May 29, 2009, he was assigned a GAF of 35.

On June 8, 2009, he returned for a follow up visit with Dr. Karwetowicz. He admitted still using cannabis and alcohol. Dr. Karwetowicz advised him that cannabis and alcohol can worsen PTSD and mood symptoms and reduce the effectiveness of medications, and he recommended treatment. Plaintiff declined a referral, stating he did not believe his use to be a problem. On July 27, 2009, Plaintiff saw Dr. Karwetowicz and reported using cocaine on an almost daily basis and using cannabis several times a week. He again declined treatment.

On September 14, 2009, Plaintiff reported to Dr. Kawetowicz that he had been off of drugs and alcohol for three weeks and was "doing much better" and stated that "people had noticed he was back to his old self now that he is off drugs." AR 834. However, he continued to decline treatment and on October 19, 2009, told Dr. Karwetowicz that he was again using cocaine and "spending every penny he can get" to buy crack cocaine. AR 829. On November 9 and 30, 2009, and January 24, 2010, Plaintiff reported to Dr. Karwetowicz that he was still intermittently using cocaine. On February 8, 2010, Plaintiff reported being sober for five weeks. On April 2, 2010, Plaintiff saw psychiatrist Dr. Constance Philipps at the VA and reported being off of cocaine for three months. He stated that he continued to drink alcohol a few nights a week. She assigned a GAF of 50.


On June 9, 2007, Plaintiff was evaluated for PTSD related to his combat experience in Operation Desert Storm by Dr. Amin Daghestani at the VA. He reported to Dr. Daghestani that he suffered from frequent intrusive memories, recollections, nightmares, and flashbacks related to his service. The evaluation also stated that Plaintiff is jumpy, hyperanxious, hypervigilant, and wakes up at night and is unable to go back to sleep. AR 378. He denied alcohol and drug abuse at that time. Dr. Daghestani assigned a GAF of 47, "reflecting the impact of post-traumatic stress disorder on his social functioning." AR 380. A decision from the Department of Veteran's Affairs dated June 27, 2007, granted Plaintiff's application for veteran's disability benefits for service connected to PTSD with an evaluation of 30 percent, effective November 14, 2005. AR 1648.

In December 2007, Plaintiff began seeing Dr. Karwetowicz for his mental health problems, including his PTSD. He continued to address his PTSD symptoms with Dr. Karwetowicz through early 2010. At various times during his treatment, he reported anger problems, exaggerated startle responses, multiple suicide attempts, social isolation, depression, mood swings, problems sleeping, irritability, conflicts with family, and trouble interacting with others. Plaintiff was prescribed numerous medications to treat these symptoms. Some time around the beginning of 2010, Plaintiff was also enrolled in a VA telehealth program and given a "Health Buddy" instrument, which permitted him to check in electronically on a daily basis with the VA to give status updates regarding his PTSD symptoms and compliance with his medications.

3. Physical Impairments

Plaintiff's record also reflects a history of heart problems, COPD, and joint pain. His heart problems date back to at least October 2001, when he had an acute myocardial infarction at a VA Clinic in Miami, Florida. Follow-up tests revealed mildly decreased ventricular ejection fraction, that is decreased levels of blood pumped from his left ventricle. Plaintiff followed up with Dr. Hayssam Kadah at the Jesse Brown VA Clinic in Chicago, and continued to see Dr. Kadah as a primary care physician. He frequently complained of chest discomfort, and Dr. Kadah recommended that he avoid "demanding physical activities." AR 1472. On September 20, 2004, Plaintiff requested a statement from Dr. Kadah that Plaintiff is disabled. Dr. Kadah noted that Plaintiff "is not to engage in demanding physical activities although he could perform sedentary/office duties." AR 1469.

After Plaintiff returned from Florida, he returned to the care of Dr. Kadah in Chicago. On May 8, 2008, Plaintiff reported to Dr. Kadah he had been experiencing left hip pain for three weeks. Dr. Kadah noted probable left tronchanteric bursitis and referred Plaintiff for an x-ray of his left hip. Those x-rays revealed only a soft tissue calcification in the lateral aspect of the left hip, which was characterized as a "minor abnormality." AR 458. He also reported that an August 25, 2008, MRI of his hip was normal, and Plaintiff reported significant improvement in his hip after receiving an injection.

On September 24, 2008, a cardiac stress test returned abnormal findings consistent with past myocardial infarction, reversible ischemia, and a decreased ejection fraction. On April 8, 2009, Plaintiff reported to Dr. Kadah chest pain that was not related to exertion. An EKG showed no significant change since an August 2007 test. Dr. Kadah diagnosed it as "probably non-cardiac chest pain but with known [coronary artery disease]." AR 848. An April 29, 2009, cardiac stress test was mildly abnormal, so Dr. Kadah referred Plaintiff to have a cardiac catherization. On May 29, 2009, while Plaintiff was hospitalized after his suicide attempt, Plaintiff underwent an angiogram, which revealed non-obstructive coronary artery disease.

On November 16, 2009, Plaintiff again complained of left hip pain in addition to right shoulder pain. Results of x-rays of Plaintiff's hip were normal. X-rays of Plaintiff's right shoulder showed only mild osteoarthritis. On January 21, 2010, Plaintiff returned to Dr. Kadah, reporting general "arthritic aches and pains" in his shoulders, hips, and back for which medications helped "some." AR 1528. Dr. Kadah assessed "muskuloskeletal pain" and recommended Plaintiff stop drinking and smoking. AR 1528. On April 19, 2010, Plaintiff reported pain in his shoulders, back, hips, hands, and feet as well as numbness in his right hand. Dr. Kadah assessed "chronic muskuloskeletal pain, " added a medication, and ordered a wrist brace to be worn at night as well as a transcutaneous electrical nerve stimulation unit. AR 1518-19.

References to Plaintiff's COPD are scattered throughout the record but are not well documented. Plaintiff's COPD appears to date to at least November 2005 when he was prescribed an Albuterol inhaler. A December 6, 2010, pulmonary functioning test revealed decreased diffusing capacity of the lungs, suggesting the presence of emphysema. The reviewing doctor assessed a moderate obstructive defect in Plaintiff's lungs but noted there was a significant response to an inhaled broncodilator.

4. Medical Opinions Regarding Functional Limitations

On October 28, 2009, state agency psychological consultant Dr. Maura Clark completed a mental residual functional capacity assessment. AR 774-91. Dr. Clark noted Plaintiff's multiple suicide attempts and his May 2009 cocaine relapse after three years of abstinence. She indicated Plaintiff has moderate limitations in Plaintiff's ability to understand and remember detailed instructions; in his ability to carry out very detailed instructions; in his ability to maintain attention and concentration for extended periods; and in his ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. She concluded that Plaintiff's impairment might interfere with his ability to complete tasks but not with his ability to perform simple, routine tasks. However, she also checked boxes indicating Plaintiff was "not significantly limited" in any of the other areas assessed, including his ability to maintain social functioning and wrote that Plaintiff "is able to relate well to others, sustain conversation and attend to tasks for sufficient periods of time." AR 776. Dr. Clark also wrote that Plaintiff "has a [history of] substance abuse, which is not material as [he] is able to [function] adequately even if currently using." AR 776.

On January 4, 2010, Dr. Karwetowicz completed a two-page form titled "Medical Assessment of Ability to do Work-Related Activities (Mental)." AR 1096-97. In it, he checked the box indicating that Plaintiff had no useful ability to function in the areas of following work rules, relating to co-workers, dealing with the public, using judgment, interacting with supervisors, dealing with work stresses, functioning independently, maintaining attention/concentration, behaving in an emotionally stable manner, and relating predictably in social situations. He also checked boxes indicating that Plaintiff is unable to understand, remember, and carry out even simple job instructions. He also indicated that Plaintiff had a fair ability to maintain his personal appearance. To explain the basis for his assessment, Dr. Karwetowicz wrote, "Pt is service connected for chronic & severe post traumatic stress disorder. Pt indicated the above disorder makes it difficult to work with & get along with people. Pt reported to symptoms of anger, irritability, reduced frustration tolerance, which are exacerbated in close proximity to people." AR 1097.

On August 30, 2010, medical expert Dr. Larry Kravitz reviewed Plaintiff's mental health records at the request of the Social Security Administration ("SSA"). He compiled a timeline of Plaintiff's PTSD and substance abuse and concluded that Plaintiff "would be limited to understanding, remembering and carrying out short and simple instructions, brief and superficial workplace contacts, and routine day-to-day work stressors" and that "[w]hen abstaining from drugs and alcohol, [Plaintiff] is capable of simple, routine work tasks mentally." AR 1561.

On September 23, 2010, Dr. Kadah filled out a four-page form titled "Medical Assessment of Ability to do Work-Related Activities (Physical)." AR 1616-19. He indicated that Plaintiff can lift or carry no more than ten pounds for at most up to one-third of an eight-hour workday and that Plaintiff can stand and walk for a total of an hour in an eight-hour workday and stand and walk for less than half an hour at a time. He wrote that he based these findings on Plaintiff's having coronary artery disease, congestive heart failure, and chronic obstructive lung disease. He also indicated that Plaintiff can never climb, stoop, crouch, crawl, or twist; that he can balance, kneel, and bend only up to one-third of an eight-hour day; and that Plaintiff's ability to push/pull is affected by his condition. Dr. Kadah also indicated that Plaintiff's conditions would impose limitations on his exposure to heights, ...

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