Sunday v. Barnhart, Cause No. 1:02-CV-23 (N.D. Ind. 9/24/2002), Cause No. 1:02-CV-23.
| Decision Date | 24 September 2002 |
| Docket Number | Cause No. 1:02-CV-23. |
| Parties | LYNN SUNDAY, Plaintiff v. JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the Court1 for judicial review of a final decision of the defendant, Commissioner of Social Security ("Commissioner"), denying the application of the plaintiff, Lynn Sunday ("Plaintiff"), for Disability Insurance Benefits ("DIB") and for Supplemental Security Income ("SSI") beginning July 31, 1998.
Section 205(g) of the Social Security Act ("the Act") provides, inter alia, It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g).
On December 23, 1998, the Plaintiff filed an application for DIB and SSI, and he alleges an inability to work beginning July 31, 1998. The Plaintiff's claims were denied initially and upon reconsideration. On May 19, 2000, a hearing was held before the Administrative Law Judge Bryan J. Bernstein ("ALJ"). The Plaintiff was represented by counsel and testified at the hearing. Also testifying were the Plaintiff's son, Ryan Sunday, and Christopher Young, a vocational expert ("VE").
Nearly one year later, on April 25, 2001, the ALJ issued his decision wherein he made the following findings:
1. The claimant met the disability insured status requirements of the Act on July 31, 1998, the date the claimant stated he became unable to work, and has acquired sufficient quarters of coverage to remain insured through at least December 31, 2002.
2. The claimant has not engaged in substantial gainful activity since July 31, 1998.
3. The medical evidence establishes that the claimant has physical residuals from a stroke, an impairment which is severe but which does not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart p, Regulations No. 4.
4. The claimant's statements concerning his impairment and its impact on his ability to work are not entirely credible. The testimony of Ryan Sunday was credible, but did not establish disability.
5. The claimant has the residual functional capacity to lift and/or carry 20 pounds occasionally. He can walk for five to ten minutes at a time. He cannot perform work requiring fine coordination or repetitive gripping. He cannot work at a closely regimented pace. He needs the option to alternate sitting and standing at will.
6. The claimant is unable to perform his past relevant woik as a maintenance millwright.
7. The claimant is 51 years old, an individual "closely approaching advanced age."
8. The claimant has a high school education.
9. The claimant has skilled work experience but has acquired no transferable work skills.
10. Considering the claimant's age, educational background, and residualfunctional capacity, he is able to make a successful vocational adjustment to work which exists in significant numbers in the national economy. Such work includes employment as a cashier (500 positions) and office helper (600 positions).
12. [sic] The claimant has not been under a disability, as defined in the Social Security Act, at any time through the date of this decision (20 C.F.R. § 404.1520(f) and 416.920(f)).
(Tr. at 17-18.)
Based on these findings, the ALJ determined that the Plaintiff was not entitled to DIB or SSI. The Plaintiff requested review by the Appeals Council, which was denied on November 27, 2001, leaving the ALJ's decision as the final decision of the Commissioner. This appeal followed.
The Plaintiff filed his opening brief on July 15, 2002. The Commissioner filed her "Memorandum in Support of the Commissioner's Decision" on August 28, 2002. The Plaintiff replied on September 12, 2002.
The Plaintiff was forty-nine years old in July 1998, the alleged onset date of disability, a "younger individual" as defined in the Act.2 See 20 C.F.R. § 404.1563(c).
The Plaintiff has a ninth grade education3 and has previous work activity as a millwright.
The Plaintiff claims a disability due to residual effects of a prior stroke, an organic mental disorder, and brain atrophy.
Between July 20 and July 31, 1998, the Plaintiff was hospitalized at the Veterans Administration ("VA") Hospital after developing dizzy spells, headaches, nausea, slurred speech, difficulty balancing, ringing in his right ear, and a left facial dmop. (Tr. at 313.) He was admitted to the Intensive Care Unit, and a CT scan of the head showed an old infarct4 in the carotid nucleus but no new acute infarct. (Id.) A neurological examination indicated muscle power in both extremities at 5/5, no sensory deficits, and an unsteady gait. (Tr. at 314.) The VA physician initially diagnosed the Plaintiff with ataxia5 marked by symptoms of vertigo, and possible left cerebrovascular accident.6 (Id.) A carotid ultrasound showed findings consistent with 70%-90% stenosis of the origin of the right internal carotid artery, but no "hemodynamically significant stenosis" was present. (Id.) However, a subsequent MRI scan performed in Indianapolis, showed a hemorrhagic infarct. (Id.)
On August 3, 1998, a physical therapy note from the VA indicated that the Plaintiff had received seven treatments for balancing/coordination exercises and gait training, and he was able to ambulate independently and perform balance/coordination exercises with 90% accuracy (Tr. at 317.) The physical therapist concluded that the goal of being able to ambulate independently had been met. (Id.)
On August 24, 1998, a psychological evaluation was performed by Dr. Jay Patel and Diane Thomas at the request of Vocational Rehabilitation. (Tr. at 94-104) He complained of problems with stamina and difficulty with coordination, depression, difficulty sleeping, a lack of motivation, and difficulty concentrating and remembering. (Tr. at 94.) Dr. Patel and Dr. Thomas opined that he demonstrated the cardinal symptoms of depression. (Tr. at 102.) The Plaintiff was diagnosed with alcohol dependence, in early remission, cannabis dependence, in early remission, and dysthymia.7 (Tr. at 103.) The Plaintiff's Global Assessment of Functioning ("GAF") score during the preceding year was 60. (Id.)
On September 10, 1998, the Plaintiff saw Dr. Sherwin Kepes for another psychological examination at the request of Vocational Rehabilitation. (Tr. at 105-111.) When asked about the presence of a learning disability, the Plaintiff stated that he was never good with spelling and he tended to invert numbers. (Tr. at 106.) Dr. Kepes noted that the Plaintiff's affect was somewhat flat, suggesting some underlying depression. (Tr. at 107.)
Dr. Kepes administered a number of psychological tests. On the WAIS-III, the Plaintiff test results provided a verbal IQ of 88, a performance IQ of 75, and a full scale IQ of 80, which placed him at the lower limit of the low average range and within the borderline range based on DSM-IV criteria. (Id.) Dr. Kepes also administered the Wechsler Memory Scale-III. (Tr. at 108.) Dr. Kepes opined that the Plaintiff's scores indicated a primary deficit in immediate memory, with an ability "to retain what he is able to encode." (Id.) Dr. Kepes noted that the Plaintiff's difficulty comes in stages, suggesting that he will need to engage in more repetition as a means of enhancing his general memory function. (Id.) Dr. Kepes also administered the Wide Range Achievement Test-III ("WRAT-III"). The Plaintiff's scores reflected reading skills at the 8th grade level, spelling skills at the 5th grade level, and arithmetic skills at the 5th grade level. (Tr. at 109.) However, he scored at the 12th grade level on the vocabulary test but with comprehension at the 7th grade level. (Id.)
Regarding functional occupational limitations, Dr. Kepes opined that the Plaintiff would have difficulties with balance and mobility, and his short term memory would require that he be placed in a reasonably structured environment where the speed of learning is not especially important. (Tr. at 110.) He diagnosed the Plaintiff with Recurrent Major Depressive Disorder,8 and Mild and Alcohol Dependence in early and full Remission. (Tr. at 111.)
On September 16, 1998, the Plaintiff had a CT scan performed on his head which revealed no significant change from an MRI performed 2 months earlier. (Tr. at 230.)
On September 17, 1998, a carotid arteriography revealed approximately 50% stenosis at the origin of the right internal carotid artery with mild narrowing of the precavernous portion of the internal carotid artery (Tr. at 219.) The left common carotid artery and intemal carotid artery was normal. (Id.)
Between September 29 and October 2, 1998 the Plaintiff was hospitalized at the VA Hospital in Indianapolis because of residual balance problems, right hand numbness and parasthesia, as well has chronic and unrelenting tinnitus and hearing loss in his right ear, which apparently all set in after his stroke. (Tr. at 238-241.) Light-touch, pin-prick, and vibration tests were grossly intact distally in all four extremities. (Tr. at 240.) Strengili was 5/5, but slightly reduced on the right side and muscle stretch reflexes were 1+ throughout. (Id.) His casual walk showed slight ataxia. (Id.)
During the Plaintiff;s hospitalization, a CT scan of his head showed evidence of right cerebellar infarct consistent with right...
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