CONCLUSION

The Commissioner’s findings are supported by substantial evidence and, thus, are
conclusive. Therefore, the Commissioner’s decision that Plaintiff was not disabled is affirmed, and
Plaintiff's Motion for Summary Judgment is denied.

IT IS SO ORDERED.

Ibo, Darrah, Judge

United States District Court

Date: aes LS 2002—

-13-


and accelerated thinking,” Plaintiff reported that he either slept all day or was “driving all day”. He
described a history of attention deficit hyperactivity disorder (“ADHD”), depression, and a manic
episode. He also reported that he was losing control with his gambling, and he feared losing his job
because he was argumentative. Plaintiff also reported abusing cocaine.

On the basis of these reports, Dr. Wyma diagnosed Plaintiff with bipolar affective disorder,
manic, with cocaine abuse significantly affecting his condition. Dr. Wyma also indicated that a
diagnosis of ADHD would have to be verified. Dr. Wyma prescribed medication and recommended
treatment, stating that Plaintiff required further treatment for his substance abuse.

In September 1999, two state agency physicians reviewed the medical evidence and
determined that Plaintiff could lift fifty pounds occasionally and twenty-five pounds frequently and
sit, stand and walk for six hours in an eight-hour workday.

On January 14, 2000, Dr. Alan Nelson performed a psychiatric evaluation at the request of
the state agency. Based on Plaintiff's reports that he stayed in bed all day twice a week, went out
only when necessary, did no shopping or cooking, and had no hobbies, Dr. Nelson diagnosed
Plaintiffas having depressive and personality disorder and past history of cocaine and alcohol abuse.
Dr. Nelson also noted that Plaintiff was chronically moderately to severely depressed and anxious
for five years. Dr. Nelson also noted that these symptoms were worsening.

In January 2000, Plaintiff began receiving psychiatric treatment on a regular basis. The
following evidence was contained in reports of Plaintiffs counseling sessions that were included in

the record that was considered by the ALJ.

°The Court will only consider Plaintiffs mental disorders in disposing of Plaintiff's
Motion for Summary Judgment as Plaintiff has only raised his mental disorders, and none of his
other impairments, in this motion.

-4-


Plaintiff argues that his bipolar disorder is of listing-level severity because he exhibits a
pervasive loss of interest in almost all activities, sleep disturbance, feelings of guilt and
worthlessness, and thoughts of suicide, the listed symptoms for depressive disorder, and all of the
listed symptoms for manic disorder except hallucinations, delusions, or paranoid thinking.

The ALJ’s finding that Plaintiff's bipolar disorder was not of listing-level severity is
supported by substantial evidence. The record shows that even after December 14, 1998, which
Plaintiff asserts to be the correct onset date, Plaintiff did not persistently exhibit the listed symptoms
of depressive or manic disorder.’ In July 1999, in a Fatigue Questionnaire, Plaintiff described a
typical day as including (1) preparing breakfast, lunch, and dinner; (2) working out; (3) taking his
child to swimming or day camp; (4) taking a drive; (5) taking his child to a sporting event; (6)
putting his children to bed; and (7) watching television before going to bed himself. In November
1999, in an Activities of Daily Living Questionnaire, Plaintiff reported that (1) he or his wife cooked
meals, (2) he did light cleaning and the laundry and vacuuming two or three times a week, (3) his
condition did not affect his ability to bathe or dress himself, (4) he needed no help remembering to
take his medication or go to appointments, (5) he had no problems thinking or concentrating or

finishing tasks, and (6) he had no problems with delusions or forgetfulness.

*Depressive syndrome is established by medically documented persistence, either
continuous or intermittent, of at least four of the following: (1) pervasive loss interest in almost
all activities, (2) appetite disturbance with change in weight, (3) sleep disturbance, (4)
psychomotor agitation or retardation, (5) decreased energy, (6) feelings of guilt or worthlessness,
(7) difficulty concentrating or thinking, and (8) thoughts of suicide. 20 C.F.R. § 404, app. 1,
subpt. P, § 12.04(A)(1)(a)-(i) (2002) (“$12.04”). Manic syndrome is established by medically
documented persistence, either continuous or intermittent, of at least three of the following: (1)
hyperactivity; (2) pressure of speech; (3) flight of ideas; (4) inflated self-esteem; (5) decreased
need for sleep; (6) easy distractibility; (7) involvement in activities that have a high probability of
painful consequences which are not recognized; or (8) hallucinations, delusions, or paranoid
thinking. § 12.04(A)(2)(a)-(h).

-9-


administratively discharged on August 18, 2000.

In September 2000, Plaintiff reported to his counselor that, in the past, he had abused drugs
twice a week for sixteen years but that he was currently attending Alcoholics Anonymous meetings
and another support group. On September 20, 2000, Hughes reported to his counselor that he felt
good, slept through the night, and was taking steps to lose weight. On September 28, 2000, he

reported to his counselor that he slept well and was refinishing his basement. His counselor noted

that he had very mild hypermania.

On October 21, 2000, the counselor’s notes indicate that Plaintiff went on a gambling binge.
On January 9, 2001, Dr. Wyma wrote a letter to Plaintiff's attorney regarding Plaintiff's
bipolar affective disorder and substance abuse. Dr. Wyma stated that Plaintiff had been disabled for

the past several years. However, Dr. Wyma stated that he could not tell whether the substance abuse

or the mental illness was causing Plaintiff’s disability.

ALJ's Findings and Decision

The ALJ made the following findings:

1,

[Plaintiff] met the disability insured status requirements of the Act on
January 14, 1998, the date he alleges he became unable to work, and
continues to do so through at least the date of this decision.

[Plaintiff] appears to have engaged in substantial gainful activity for
significant periods after January 14, 1998, but is not currently so engaged.
[Plaintiff] has a “severe” impairment involving asthma, a back injury,
depression, and substance abuse: [sic] but not an impairment or combination
of impairments listed in or medically equal to one listed in Appendix 1,
Subpart P, Regulations No. 4.

[Plaintiff's and Mrs. Hughes’] testimony, to the extent that they are alleging
he suffers from disabling limitations, much more disability independent of
substance abuse, is not credible when compared against the objective medical
evidence and factors in SSR 96-97p.

[Plaintiff] has the residual functional capacity to perform the physical
exertional requirements of work involving lifting up to 50 pounds

-6-


In January 2000, Plaintiff stated to his counselor that he was a stay-home father and that he
provided child care, although he and his wife (“Mrs. Hughes”) disagreed about parenting. Plaintiff
reported that he had not used cocaine in the last two months.

On February 23, 2000, Plaintiff reported to his counselor that his mood was good and that

he was doing some remodeling work. However, he also stated that it was hard to focus. Also in
February 2000, Dr. Tomasetti, a psychologist, evaluated Plaintiff's mental impairment.
Dr. Tomasetti found that Plaintiff had a depressive disorder but had no manic syndrome. Dr.
Tomasetti found that Plaintiff had (1) a slight limitation in daily living; (2) moderate difficulty with
social functioning; (3) frequent deficiencies of concentration, persistence, or pace; and (4) never had
an episode of deterioration or decompensation in work or work-like settings. Dr. Tomasetti
concluded that Plaintiff had the mental capacity to engage in substantial gainful employment.

On March 21, 2000, Mrs. Hughes reported to her husband’s counselor that she suspected that
Plaintiff was abusing drugs again because he disappeared for long stretches of time. Plaintiff
reported to the counselor that he was gambling. In May 2000, Plaintiff tested positive for drugs but
attributed it to dietary or food supplements. At that time, he was living with his parents and worked
ten hours per week.

On July 22, 2000, Plaintiff was admitted to a psychiatric unit at Central DuPage Hospital
after he stopped taking his medication and started using cocaine. He was transferred to the partial
hospital program at Central DuPage Hospital. Plaintiff reported involvement in gambling to earn
money as a bouncer and a protector. Plaintiff was still using cocaine and drinking. On
August 11, 2000, Plaintiff reported that he slept well, felt good, and that the medication had no side

effects. August 17, 2000, Plaintiff grabbed a fellow patient during a group meeting and was

-5-


Under the Social Security Act, individuals are disabled if they cannot engage in any
substantial gainful activity due to any medically determinable physical or mental impairment. 42
U.S.C. § 416(i). The ALJ uses the following inquiry to determine whether the claimant has
established disability: (1) whether the claimant is currently employed, (2) whether the claimant has
a severe impairment, (3) whether the claimant’s impairment meets or equals one of the impairments
listed by the Commissioner in Appendix 1, Subpart 4 of the regulations, (4) whether the claimant
can perform his past relevant work, and (5) whether the claimant is capable of performing work in
the national economy. Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001) (citing Clifford, 227
F.3d at 868 (citation omitted)).

The ALJ considers the five factors sequentially, i.e., “[a]n affirmative answer leads either to
the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled. ... A negative at any
point, other than Step 3, ends the inquiry and leads to determination that a claimant is not disabled.”
Zurawski, 245 F.3d at 886 (citing Zalewski v. Heck, 760 F.2d 160, 162 n.2 (7th Cir. 1985)).

DISCUSSION

Plaintiff moves for summary judgment, arguing that the ALJ erred in (1) failing to analyze
properly the effects of Plaintiff's bipolar condition, (2) failing to determine that Plaintiff's bipolar
condition meets Listing 12.04A3, (3) stating that the onset date of Plaintiff's disability was
January 14, 1998 rather than December 14, 1998, (4) disqualifying Plaintiff because drug and alcohol
were material to his disability, (5S) rejecting the treating physician’s opinion regarding the effect of
drug and alcohol use on Plaintiff's condition, and (6) that the ALJ’s findings discounting Plaintiff's
and Mrs. Hughes’ credibility were not rationally supported by the record. Plaintiff’s third argument

is of most concern to this Court.

-8-


Minute Order Form (06/97)

so¥

United States District Court, Northern District of Ilinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge John W. Darrah than ‘Assigned Judge
CASE NUMBER 01 C 6862 DATE 4/25/2002
CASE MICHAEL D. HUGHES vs. JO ANN B. BARNHART
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented]

DOCKET ENTRY:

(1) Q Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) QO Answer brief to motion due. . Reply to answer brief due.

(4) oO Ruling/Hearing on set for at

(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at

(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at .

(7) Oo Trial[set for/re-set for] on at

(8) o [Bench/Jury trial] [Hearing] held/continued to at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) O General Rule21 CIFRCP41(a)(1) OO FRCP41(a)(2).

(0) of [Other docket entry] Status hearing held. Enter Memorandum Opinion And Order. The
Commissioner’s findings are supported by substantial evidence and, thus, are conclusive. Therefore, the
Commissioner’s decision that plaintiff was not disabled is affirmed, and plaintiff's motion for summary
judgment is denied.

a1) of [For further detail see order attached to the original minute order.}

RIS

No notices required, advised in open court.

No notices required.
req umber of notices

Notices mailed by judge’s staff.

APR 26,2002

Notified counsel by telephone,

Docketing to mail notices.

Mail AO 450 form,

docketingtefuty initials

Copy to judge/magistrate judge.

courtroom date maited notice

deputy’s ie vite ue
initials Een

Date/time received in

central Clerk's Office ‘mailing depoty initials



supported by substantial evidence.

Plaintiff also argues that the ALJ erred in stating that the onset date of disability was
January 14, 1998, and disqualifying Plaintiff from disability insurance benefits because Plaintiff last
worked regularly in December 1998. While Plaintiff's application indicates that he became unable
to work on December 14, 1998, Plaintiff told the ALJ that he was alleging disability since January
14, 1998. However, there is substantial evidence, even after December 14, 1998 that supports the
ALJ’s finding that Plaintiff is not disabled, as was discussed above. Therefore, reversal on this
ground is not appropriate in either event.

The ALJ found that there was ample evidence that if Plaintiff were to take his medication and
cease all substance abuse, he could work productively. Plaintiff argues that the ALJ erred in
disqualifying him due to the materiality of drug and alcohol abuse to his disability and in rejecting
Plaintiff's treating psychiatrist’s, Dr. Wyma’s, opinion regarding the effect of Plaintiff's drug and
alcohol abuse on his bipolar disorder.

In support of this argument, Plaintiff points to the statement of Dr. Wyma in a
January 9, 2001 letter that:

based on my assessment, it would not be possible to tell whether the drug abuse or

the bi-polar [sic] illness were [sic] causing his disability unless he had a solid period

of time clear of the drug use and in psychiatric treatment so that we could assess the

role of chemical dependency and psychiatric illness.

However, the state agency psychologist, Dr. Tomasetti, reviewed the medical evidence, including
a similar opinion by Dr. Wyma in 1999, and concluded that Plaintiff was capable of performing
substantial gainful activity.

The ALJ did not deny Plaintiff disability benefits due to Plaintiff's drug and alcohol abuse,

-11-


Moreover, the record is replete with other evidence after December 14, 1998, where Plaintiff
reports that he was not experiencing any of the symptoms listed in § 12.04. In January 2000,
Plaintiff described himself as a stay-at-home dad and reported to his counselor that he was providing
childcare. In April 2000, Plaintiff reported to his counselor that he was working ten hours a week
and slept about seven hours a night. In May, August, and September of 2000, Plaintiff reported to
his counselor that he slept well. In September 2000, Plaintiff also told his counselor that he was
refinishing his basement. This evidence contradicts Plaintiff's claim that his depressive disorder was
of listing-level severity because he exhibited a pervasive loss of interest in all activities and sleep
disturbances. Furthermore, the record does not indicate that Plaintiff was persistently exhibiting the
listed symptoms of manic disorder. Rather, on numerous occasions within the relevant time frame
as noted above, Plaintiff reported that he slept well and had no problems thinking, concentrating, or
finishing tasks. The counselor noted in April and September 2000 “mild” hypermania and pressure
of speech. Finally, Plaintiff did not satisfy the criteria for bipolar disorder of listing-level severity.*

Therefore, the ALJ’s finding that Plaintiff's bipolar disorder was not of listing-level severity was

‘The severity of bipolar disorder can also be established bya:

[m]edically documented history of a chronic affective disorder of at least two

year’s duration that has caused more than a minimal limitation of ability to do

basic work activities, with symptoms or signs currently attenuated by medication

or psychosocial support, and one of the following:

1. Repeated episodes of decompensation, each of extended duration; or

2. A residual disease process that has resulted in such marginal adjustment
that even a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to decompensate;
or

3. Current history of 1 or more years’ inability to function outside a highly
supportive living arrangement, with an indication of continued need for
such an arrangement.

§ 12.04(3)(B)(1)-(4).
-10-


occasionally or carrying up to 25 pounds frequently; mentally, he can

perform at least routine, simple, low stress work.

[Plaintiff] is able to perform past relevant work.

7. Alternatively, given [Plaintiff's] younger age of 33 years, high school
equivalent education, and residual functional capacity to perform medium
level unskilled work, other jobs exist in significant numbers that he can
perform, consistent with Section 404.1569, Regulations No. 4 and Medical-
Vocational Rule 203.28, Table No. 3, Appendix 2, Subpart P, Part 404.

8. [Plaintiff] is not 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)].

com

The ALJ decided that Plaintiff was not entitled to a period of disability insurance benefits
under sections 216(i) and 223 of the Social Security Act. The Appeals Council affirmed this
decision, and Plaintiff appealed to this Court.

LEGAL STANDARD UPON REVIEW

Under the Social Security Act, the Commissioner’s findings are conclusive if they are
supported by substantial evidence and no error of law occurred. 42 U.S.C. § 405(g). “Substantial
evidence means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Dixon vy. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001) (citation omitted). The
reviewing court “may not decide the facts, reweigh the evidence, or substitute its own judgment for
that of the ALJ.” Floress v. Massanari, 181 F. Supp. 2d 928, 937 (N.D. Ill. 2002) (citing Herron v.
Shalala, 19 F.3d 329, 333 (7th Cir. 1994)). The ALJ is not to “substitute his or her own judgment
for a physician’s opinion without relying on other medical evidence or authority in the record.”
Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000). “While the ALJ is not required to address every
piece of evidence, he must articulate some legitimate reason for his decision. ... Most importantly,
he must build an accurate and logical bridge from the evidence to his conclusion.” Clifford, 227 F.3d

at 872 (citations omitted).


He began treatment for depression in August 2000. In January 1998, he had been prescribed
anti-depressant medication but stopped taking it after three months because he felt he did not need
it.

Plaintiff further testified that he could lift twelve pounds, sit for thirty-five minutes, and walk
for ten minutes. He also stated that he could not take careof his children alone because he could not
lift his two-year-old child.

Vocational Expert’s Testimony

A Vocational Expert (“VE”) also testified at the hearing before the ALJ. The VE testified
that Plaintiff's past work as a welder and fabricator was medium, semi-skilled work and that his
work as a wood flooring installer was heavy, semi-skilled work. The VE also testified that a person
of Plaintiff's age; education; experience; and with Plaintiff's ability to lift fifty pounds occasionally
and twenty-five pounds frequently and sit, stand, and walk for six hours each in an eight-hour
workday could perform Plaintiff's past welding and fabricating jobs. A person with moderate
restrictions in his ability to: (1) maintain attention and concentration for extended periods, (2)
complete a normal workday and workweek, (3) work at a consistent pace, (4) get along with co-
workers and peers, and (5) set realistic goals or make plans independently of others would be
precluded from all work.

Medical Evidence
The following medical evidence was in the record that was considered by the ALJ. In August

1998, Plaintiff was admitted to the hospital complaining of racing thoughts, inability to attend work,

3.


Administrative Law Judge (“ALJ”) John Mondi on January 10, 2001. The ALJ determined that
Hughes was not disabled in a decision dated March 21, 2001. The ALJ’s decision was affirmed by
the Appeals Council on July 16, 2001, making the ALJ’s decision the final decision of the
Commissioner.
THE ADMINISTRATIVE PROCEEDING
Plaintiff's Testimony

Plaintiff was born on July 18, 1967. He has the equivalent of a high school education and
limited college experience. At the time of the ALJ’s decision, he was thirty-three years old and had
two children, nine and two years old. Plaintiff worked as a steel fabricator from 1992 until 1996,
when he moved to Chicago with his wife. In the summer of 1998, he worked for a welding company
but quit after two months due to depression. He worked as a wood floor installer from September
until November in 1998 and did some general contracting and remodeling work in 2000. Plaintiff
earned $23,414.62 in 1998.

At the hearing before the ALJ on January 10, 2001, Plaintiff testified that he was unable to
work due to shortness of breath, low tolerance for dust particles or chemicals, a bad back and
because he took anti-depressant medication. He also testified that he had difficulty climbing stairs,
bending and sleeping, and had experienced a weight gain of thirty-five pounds. Plaintiff testified
that he took up to fifteen Advil each day and that the only side effects he experienced from his
medication were weight gain, dry mouth, and irritable bowel syndrome.

Plaintiff testified that he had not abused cocaine for 145 days, although he has a history of
cocaine abuse. He was treated for drug abuse in 1985 and in August 2000. Plaintiff last used

cocaine in February 1998.

-2-


UNITED STATES DISTRICT COURT = P97 =,
NORTHERN DISTRICT OF ILLINOIS “

i)

EASTERN DIVISION APR 26 2002
MICHAEL D. HUGHES, )
SS# 349-64-0115, ) ’
Plaintiff, } Case No. 01 C 6862
v. } The Honorable John W. Darrah
JO ANNE B. BARNHART’, }
Defendant. }

MEMORANDUM OPINION AND ORDER

Plaintiff, Michael D. Hughes (‘Plaintiff’), moves, pursuant to Federal Rule of Civil
Procedure 56(a), for summary judgment. Plaintiffmoves for reversal of the Commissioner of Social
Security’s (“the Commissioner”) decision that he was not disabled. For the reasons that follow,
Plaintiff's Motion for Summary Judgment is denied.

PROCEDURAL HISTORY

Plaintiff, Michael D. Hughes (“Hughes”), applied for Disability Insurance Benefits on
May 18, 1999, age thirty-two at the time, on the ground that he had become disabled due to breathing
problems, a herniated disc in his back, and depression. The Social Security Administration initially
denied his application on September 15, 1999, and again upon reconsideration on March 8, 2000.

Hughes filed a request for a hearing which was granted. The hearing was held before

'On November 9, 2001, Jo Anne B. Barnhart became Commissioner of Social Security.
In accordance with Federal Rule of Civil Procedure 25(d)(1) and 42 U.S.C. § 405(g), Jo Anne B.
Barnhart is automatically substituted for Larry G. Massanari as the Defendant in this civil action.

\2

-1-


but, rather, because he found the fact that Plaintiff was able to work while abusing drugs and alcohol
undermined Plaintiff's credibility. Drug and alcohol abuse are material when the claimant would
not be disabled but for the substance abuse disorder. See Davis v. Chater, 952 F. Supp. 501 (N.D.
Ill. 1996). The ALJ never found Plaintiff to be disabled but for, or due to, his drug and alcohol
abuse. Instead, the ALJ found that Plaintiff, despite his drug and alcohol abuse, was not disabled.

Thus, the ALJ’s finding that Plaintiff could work productively ifhe ceased abusing drugs and
alcohol is supported by substantial evidence, and no error occurred in this regard,

Finally, Plaintiff argues that the ALJ erred in discounting his and his wife’s credibility.

The ALJ stated in his decision that Plaintiff’s testimony was “not credible when compared
against the objective evidence and factors in SSI 96-7p” because Plaintiff was able, in the past, to
work while binging on alcohol and cocaine and not being treated for his bipolar disorder. The ALJ
stated that Mrs. Hughes’ testimony was not credible because, although she stated that she was afraid
to leave Plaintiff home alone with the children, the record indicated that he provides childcare at
home.

The ALJ’s credibility determinations will be reversed only if they are patently wrong. Dixon,
270 F.3d at 1177. The ALJ’s credibility determinations were not patently wrong. As was noted
above, Plaintiff's own reports several times in 1999 and 2000 that he provided childcare at home
undermine Mrs. Hughes’ claim that she was aftaid to leave Plaintiff alone with the children.
Plaintiff's reports that he was redoing his basement and had abused drugs and alcohol for sixteen
years while holding down jobs as a welder are substantial evidence that support the ALJ’s credibility

determinations. Therefore, reversal of this finding of the ALJ is also denied.

-12-