Lucas v. Astrue
| Decision Date | 30 July 2013 |
| Docket Number | Case No: 11 C 7456 |
| Parties | LEATISHA S. LUCAS, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
The plaintiff, Leatisha Lucas, who did not attend her hearing for reasons unclear from the record, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying his applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 423(d)(2), and Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). Ms. Lucas asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision. While we are reversing, the question of Ms. Lucas's unexplained failure to attend the hearing looms large, and should she again not attend the hearing without a showing of good cause, there should be no further review as she will have failed to exhaust administrative remedies. Van Williams v. Social Security Admin., 152 Fed.Appx. 153 (3rd Cir. 2005); Bush v. Bowen, 690 F.Supp. 417, 418 (W.D.Pa. 1988).
Ms. Lucas applied for disability benefits on March 2, 2007, alleging that she had been disabled since September 5, 2005, due to depression. . Her application was denied initially and upon reconsideration, and Ms. Lucas requested an administrative hearing. (R. 54-62, 67-74, 80-82). The hearing was postponed a couple of times because Ms. Lucas did not have transportation - Ms. Lucas lived in Elgin and the hearing was in Oak Brook - and was obtaining representation. It was postponed one more time to arrange a consultative examination at the request of Ms. Lucas's attorney. (R. 31-32, 34). When the hearing was finally held, on July 7, 2010, Ms. Lucas did not attend, despite at least two notices. (R. 176, 188). The problem could not have been transportation this time because her attorney went to her home to pick her up, but she was nowhere to be found. (R. 39). Inexplicably, the hearing proceeded with counsel but without Ms. Lucas and testimony from Dr. Kathleen O'Brien, a medical expert, and Glee Ann Kehr, a vocational expert. (R. 36-53). On August 5, 2010, the ALJ issued a decision finding that Ms. Lucas was not disabled because she did not have a severe impairment. (R. 14-20). This became the final decision of the Commissioner when the Appeals Council denied Ms. Lucas' request for review of the decision on September 7, 2011. (R. 1-4). See 20 C.F.R. §§ 404.955; 404.981. Ms. Lucas has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Ms. Lucas was born on May 27, 1977, making her thirty-three years old at the time of the ALJ's decision. (R. 195). She made it through the eleventh grade. (R. 240). She has held several short-lived jobs - home care, fast food, temp agency work - but from 1998 to December 2006, she was paid by the state to take care of her sister's children. (R. 236). She says her childcare days came to an end because she was told to stop until she had a mental health evaluation. (R. 235).
The medical record in this case is rather scant. Ms. Lucas went to her community health clinic on November 2, 2006, and reported that she was depressed, agitated, anxious, and sad. She was losing sleep and nervous about her financial situation. (R. 310). She used alcohol and drugs when she was depressed. (R. 311). Examination revealed that her affect, speech, thought process, and attention were all within normal limits. Her memory and judgment were good; her intelligence was average. (R. 311). The diagnosis was depression and anxiety, and Ms. Lucas was assigned a GlobalAssessment of Functioning score of just 43.1 A pysch evaluation and counseling were recommended. (R. 312).
Ms. Lucas returned to the clinic on January 30, 2007. She said she was "going through a lot of stress." She was isolative and suffering from insomnia. (R. 319). She recounted that she had been hospitalized at age 14 after taking pills. She had a depressed affect, but thought process and content were normal. Attention was "distractible", recent memory was poor, remote memory was fair. Judgment and insight were fair. She exhibited suicidal and homicidal ideation. (R. 320). The diagnosis this time was major depressive disorder and the GAF score was 58. (R. 320). Ms. Lucas was started on Lexapro. (R. 320).
On March 20, 2007, Ms. Lucas reported that she was "stressing a lot." Her affect was depressed. Her thought process, content, and attention were all within normal limits. (R. 318). Memory, judgment, and insight were fair. There was no suicidal or homicidal ideation. (R. 318). She was continued on Lexapro. (R. 318).
The disability agency arranged for Ms. Lucas to have a consultative physical examination on May 8, 2007, with Dr. Scott Kale. Ms. Lucas denied using drugs or alcohol. (R. 333). She recounted that she had been stabbed in the chest at age 14, andoccasionally experience some residual pain there. (R. 333-34). She had no shortness of breath or wheezing. Her only other physical complaint was occasional right knee pain stemming from a work injury. But she denied any limping, leg collapse, swelling. (R. 334). Physical examination was normal, with the exception of slight limitation of motion in the lower back. (R. 334).
Dr. Kelly Johnson performed a psychiatric examination that same day at the same offices. Ms. Lucas explained that she became depressed in 2002 when her mother died. She complained of frequent crying spells and difficulty sleeping, as well as irritability and mood swings. She had decreased energy and appetite. (R. 337). Ms. Lucas allowed that she did use alcohol when depressed, but denied using drugs. She avoided contact with other people. She said that her right knee made it difficult for her to ambulate freely. (R. 338). The doctor said that Ms. Lucas appeared tearful and had a restricted affect. (R. 338). Ms. Lucas denied any suicidal ideation or hallucinations. She did express some paranoia and fear of other people. She could remember only two of three objects after several minutes. She was able to recount the last 24 hours of her life. She knew who the current president was. She could not perform serial sevens, but she did exhibit some capacity for abstract thinking. Dr. Johnson felt she met the criteria for ongoing major depressive disorder. (R. 339).
Psychologist Kirk Boyenga reviewed the psychological evidence file on behalf of the disability agency on May 29, 2007. He noted depression with anhedonia, psychomotor agitation, decreased energy, and difficulty concentrating or thinking. (R. 344). He noted a history of post traumatic stress disorder and thought the evidence wasconflicting with regard to substance abuse. (R. 346, 349). Ms. Lucas's impairment resulted in a moderate restriction of daily activities, moderate difficulties with social functioning, and mild limitations in concentration. (R. 351). Dr. Richard Bilinsky reviewed the physical impairment evidence and concluded that Ms. Lucas's physical impairments were not severe. (R. 355). Dr. Francis Vincent and psychologist Jerold Heinrich hen reviewed the file and concurred with both earlier reviews. (R. 361).
The record also demonstrates that Ms. Lucas failed to attend her counseling sessions a number of times, resulting in the community center dropping her case and closing her file. (R. 363-64).
Ms. Lucas had one more consultative examination - on February 19, 2010 with psychologist Michael Stone. Ms. Lucas told her she had been stabbed in the lung in the past but had never had a psychiatric hospitalization. She denied problematic use of drugs or alcohol. (R. 393). Ms. Lucas allowed that she had been incarcerated in the past for assault and battery. (R. 394). She was taking Seroquel (antipsychotic medication), Lexapro (antidepressant), Ranitidine (stomach acid), Citralopram (antidepressant), and Naproxen (NSAID). (R. 393). During the examination, Ms. Lucas was tense and irritable, but did not exhibit manic symptoms typical of bipolar disorder. (R. 394). Affect was depressed and agitated. She related feelings of hopelessness, anhedonia, and helplessness. Thought content was positive for depression, but there was no suicidal ideation, hallucinations, or paranoid ideation. Ms. Lucas's thought process was normal but she could not maintain attention and concentration consistently throughout the examination. Memory was somewhat impaired. She had trouble with abstract thinking.Simple calculations were difficult for her. Judgment was impaired. (R. 395-96). Ms. Lucas's symptoms were indicative of depression, agitation, anxiety, and impulse control disorder. Her prognosis was guarded and she would be unable to manage any benefits she might receive on her own. (R., 396-97). Ms. Lucas would be moderately impaired in her ability to interact with the public, co-workers, and supervisor, and respond to changes in a work setting. (R. 399).
As already noted, Ms. Lucas did not attend her hearing. The hearing commenced with testimony from psychologist Kathleen O'Brien, the medical expert ("ME"). The ME noted diagnoses of agitated depression and anxiety, and impulse control and panic disorder by self-report. (R. 41). Ms. Lucas's impairments did not meet or equal a listing. In fact, based on the three visits to the clinic, the ME felt they were non-severe. (R. 41). Relying on the notes from Ms. Lucas's initial visit to the clinic in November 2006, the ME concluded that Ms. Lucas had no problems with social interaction and that her...
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