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Frankhauser v. Barnhart

November 22, 2005

HENRY FRANKHAUSER, PLAINTIFF,
v.
JOANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Foschio, United States Magistrate Judge

DECISION and ORDER

JURISDICTION

The parties to this action consented to proceed before the undersigned on July 2, 2003. The matter is presently before the court on Defendant's motion for judgment on the pleadings (Doc. No. 11), filed July 1, 2003, and on Plaintiff's cross-motion for judgment on the pleadings (Doc. No. 14), filed on August 4, 2003.

PROCEDURAL HISTORY

Plaintiff filed applications for Social Security Disability Benefits ("SSDI") under Title II of the Social Security Act ("the Act"), and Supplemental Security Insurance ("SSI") under Title XVI of the Act (together, "disability benefits"), on September 14, 1995, alleging he was disabled since September 30, 1992, by alcohol and drug abuse and depression. (R. 136-38 (SSDI), 139- 40(SSI)). *fn1 The applications were initially denied on February 12, 1996 (R. 142-50), and, upon reconsideration, on February 24, 1996 (R. 154). Pursuant to Plaintiff's request filed April 12, 1996 (R. 179-80). An administrative hearing was held on May 11, 1997, before Administrative Law Judge ("ALJ") Bruce Mazzarella ("the ALJ"), at which time Plaintiff, represented by Erie County Office of Counsel Supervising Paralegal Kathleen Traina ("Traina"), appeared and testified. (R. 40-71). On September 15, 1997, the ALJ found Plaintiff was not disabled. (R. 325-40). Specifically, the ALJ determined that Plaintiff's substance abuse disorder was severe and would meet the criteria necessary to establish disability as defined under the Act. (R. 328). The ALJ, however, further determined that absent Plaintiff's alcohol and drug abuse, Plaintiff would be able to perform his past relevant work of an unskilled, repetitive nature and, as such, Plaintiff, by operation of recently enacted statutes including 42 U.S.C. ss 423(d)(2)(C) and 1382c(a)(3)(J), could not be considered disabled. (R. 328).

On October 16, 1997, Plaintiff requested review of the hearing decision by the Appeals Council. (R. 343-46). Upon considering Plaintiff's request for review of the ALJ's hearing decision and the record, the Appeals Council, on September 23, 1999, granted Plaintiff's request for review, vacated the ALJ's decision and remanded the matter to the ALJ for a new hearing and decision and specifically instructed that additional information from a medical expert was needed to determine the nature and severity of limitations arising from Plaintiff's personality and bipolar disorders which would remain absent Plaintiff's drug and alcohol abuse. (R. 347-49).

At the second administrative hearing, held on November 9, 2000, before ALJ Mazzarella, Plaintiff, again represented by Kathleen Traina, appeared and testified. Psychiatrist Nelli Mitchell, M.D. ("Dr.Mitchell") appeared as a medical expert and testified as to the nature, severity and limitations arising from Plaintiff's personality and bipolar disorders. (R. 72-135). On December 8, 2000, ALJ Mazzarella again found Plaintiff was not disabled. (R. 10-37). On December 15, 2000, Plaintiff requested review of the hearing decision by the Appeals Council. (R. 6-9). Upon considering Plaintiff's request for review of the ALJ's hearing decision and the record, the Appeals Council, on March 15, 2002, found no basis for granting the review and denied the request, thereby rendering the ALJ's hearing decision the final decision of the Commissioner. (R. 4-5). This action seeking review of the Commissioner's decision denying Plaintiff disability benefits followed on April 3, 2002.

The Commissioner's answer to the Complaint, filed on March 27, 2003 (Doc. No. 7), was accompanied by the attached record of the administrative proceedings. *fn2 On July 1, 2003, the Commissioner filed a motion for judgment on the pleadings, and a Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings (Doc. No. 12) ("Commissioner's Memorandum"). On August 4, 2003, Plaintiff filed a cross-motion for judgment on the pleadings, attached to which is a Memorandum of Law in Support of Plaintiff's Motion for Judgment on the Pleadings. ("Plaintiff's Memorandum"). On September 4, 2003, the Commissioner filed, in further support of her motion for judgment on the pleadings and in opposition to Plaintiff's cross-motion for judgment on the pleadings, The Commissioner's Reply Memorandum of Law (Doc. No. 16) ("Commissioner's Reply"). Oral argument was deemed unnecessary.

Based on the following, Defendant's motion for judgment on the pleadings (Doc. No. 11) is DENIED; Plaintiff's cross-motion for judgment on the pleadings (Doc. No. 14) is GRANTED, and the matter is remanded for calculation and payment of benefits.

FACTS *fn3

Plaintiff Henry Frankhauser ("Plaintiff"), who was born on March 24, 1961, (R. 45, 77), completed the 8th grade, dropped out of school in the 9th grade, obtained a GED in 1984 and attended Bryant and Stratton for a while but eventually dropped out. (R. 82, 251). Plaintiff who is divorced and has three children from his marriage, has worked in the past as a car detailer at a car wash, a building maintenance worker and a cook/cleaner in a restaurant. (R. 184-89).

It is undisputed that Plaintiff has a history of polysubstance abuse, primarily alcohol, marijuana and glue sniffing, for which he has sought and obtained treatment on numerous occasions from various sources. Plaintiff began abusing alcohol at age 11 and by age 15 was regularly sniffing glue and smoking marijuana. (R. 89-91, 285-86). Plaintiff testified at the time of the second administrative hearing on November 9, 2000, that he had not used drugs or alcohol for six months. (R. 89).

Also undisputed is that Plaintiff suffers from a personality disorder and a bipolar disorder which has been treated with prescription medication, including Lithium Carbonate (antipsychotic, antimanic medication for bipolar disorder), Trilafon (for management of psychotic disorders including agitated depression and schizophrenia), Paxil (psychotropic drug used to treat major depressive disorder, social anxiety disorder, panic disorder and generalized anxiety disorder), Haldol (schizophrenia medication), Cogentin (used to improve movement side effects of antipsychotic drugs), Ativan (anxiety relief medication) and Depakote (used to treat mania associated with bipolar disorder). (R. 262-64, 283- 84). Plaintiff's compliance with his prescription medication, however, has been sporadic.

On October 4, 1996, Plaintiff was admitted to Buffalo Psychiatric Center ("the Psych Center"), where Plaintiff was treated by L.B. Tjoa, M.D. ("Dr.Tjoa"), who diagnosed Bipolar I Disorder Manic, History of Polysubstance Abuse and History of Antisocial Personality. (R. 261-68). Upon examination, Plaintiff was irritable, overproductive, had irrelevant speech, inflated self esteem, disorganized thinking, loosely associated, grandiose, inappropriate behavior, and labile mood. (R. 263). Plaintiff's GAF *fn4 score was 2030. (R. 263). Plaintiff was treated with Lithium Carbonate for his labile mood, Trilafon for his delusions, and Paxil for depression and improved within a week. (R. 263). Plaintiff was advised to take his medication and cease drinking alcohol. (R. 263). Upon his discharge on November 8, 1996, Plaintiff's condition was described as friendly, not irritable, not angry, his speech was relevant and not overproductive, thinking was not disorganized, Plaintiff had no delusions, his judgment was better, self esteem was not inflated, and Plaintiff was not suicidal, depressed nor homicidal. (R. 264). Plaintiff's discharge diagnosis included Bipolar I Disorder, Recent Manic Episode, and his GAF score upon discharge was 510, indicating Dr. Tjoa had inadequate information to report on Plaintiff's overall level of functioning and carrying out activities of daily living. (R. 264).

On February 5, 1997, Dr. Tjoa completed a form relating to Plaintiff's ability to do work-related activities on a day-to-day basis in a regular work setting. (R. 258-60). Dr. Tjoa indicated Plaintiff had poor to no ability to follow work rules, deal with the public, interact with supervisors, and deal with work stresses, fair ability to relate to co-workers, use judgment and to maintain attention/concentration, and good ability to function independently. (R. 258). Plaintiff's ability to understand, remember and carry out complex or detailed, but not complex job instructions was poor to none, and his ability to understand, remember and carry out simple job instructions was fair. (R. 259). Plaintiff had poor to no ability to behave in an emotionally stable manner, relate predictably in social situation, and to demonstrate reliability, and Plaintiff's ability to maintain his personal appearance was fair. (R. 259). Dr. Tjoa further commented that Plaintiff has a history of hospitalizations for sever depression and manic behavior since 1992, and that when decompensated, Plaintiff suffers from paranoid ideation and emotional ability that interferes with Plaintiff's ability to interact with others. (R. 259). Plaintiff also has a short attention span, limited ability to focus on the task at hand, and poor impulse control. (R. 260).

Plaintiff, on November 18, 1996, was arrested by the Buffalo Police Department for reckless driving and taken to Erie County Medical Center ("ECMC") where Plaintiff was admitted on emergency status. (R. 283-84). Plaintiff's admitting diagnosis was bipolar disorder, manic phase. (R. 283-84). Upon initial mental status examination by the attending physician, Hak Ko, M.D. ("Dr.Ko"), Plaintiff was extremely labile, irritable, angry, hostile, agitated and delusional, saying that he saw a sign on the wall that says that his 12 year old daughter was a crack addict and that's why he was driving around the street, 'to keep her from evil.' He was grossly delusional and manic and apparently has not been complying with his medications. There is a question about whether he was also abusing alcohol prior to his admission.

(R. 283).

Plaintiff was treated with Haldol, Lithium, Cogentin, and Ativan for his marked agitation and Plaintiff had to be restrained on two occasions during the first two days of his admission. (R. 283). Plaintiff showed a "fairly rapid improvement" with the medications and was willing to cooperate with follow up treatment, including Lithium and Depakote. (R. 283). Upon discharge, Plaintiff was markedly improved, his behavior was in good control and his was in no physical distress. (R. 284).

Plaintiff was involuntarily hospitalized for psychiatric treatment from November 15 through November 23, 1999 at Kaleida Health Center. (R. 366). Plaintiff's counselor at Mid-Erie Counseling and Treatment Services ("Mid-Erie") Elaine Frank ("Frank"), reported that at the time of such hospitalization, Plaintiff appeared to be non-compliant with his prescribed medications, and that his decompensation was initiated by the break-up of a personal relationship. (R. 366).

On November 15, 1999, Plaintiff's treating psychiatrist at Mid-Erie, Dr. Kung, *fn5 who had treated Plaintiff since July 22, 1999, completed a questionnaire regarding Plaintiff's ability to do work-related activities on a daily basis in a regular work setting. (R. 367-69 and 370). Dr. Kung reported Plaintiff had only a fair ability to follow work rules, relate to co-workers, deal with the public, use judgment, interact with supervisors, deal with work stresses, function independently and maintain attention and concentration. (R. 367). Dr. Kung commented that Plaintiff "appears to be manic," is easily agitated, and has great difficulty focusing or concentrating on task. (R. 367). According to Dr. Kung, Plaintiff only had a fair ability to understand, remember and carry out simple, detailed but not complex and complex job instructions. (R. 368). Dr. Kung noted Plaintiff's manic disorder, his thought organization and concentration were impaired, memory was intact, but comprehension was difficult to assess. (R. 368). Plaintiff had only a fair ability to maintain his personal appearance and to demonstrate reliability, and poor to no ability to behave in an emotionally stable manner or to relate predictably in social situations. (R. 368). Dr. Kung commented that Plaintiff appears agitated at times, is argumentative and challenging and reacts unpredictably in social or group settings. (R. 368). According to Dr. Kung, Plaintiff was not able to manage benefits in his own best interest. (R. 369).

On a Psychiatric Medical Report prepared by Dr. Kung on November 15, 1999, Plaintiff's diagnosis was listed as bipolar disorder manic and alcohol abuse. (R. 370-73). At Plaintiff's most recent mental status examination on October 25, 1999, Plaintiff was manic and somewhat agitated, his appearance was fair, his speech was clear and coherent, Plaintiff reported hearing voices telling him "bad things," although Plaintiff was coherent and relevant and without overt delusions, Plaintiff showed average intelligence, some insight, limited judgment and was advised to quit drinking. (R. 371). Dr. Kung explained that when Plaintiff is decompensated, he has "great difficulty" relating to staff and others, was argumentative, challenging and threatening in his behavior, and has very poor insight into his negative behavior. (R. 372). Dr. Kung further stated that when Plaintiff takes his prescribed medications and follows through with his treatments "he can be stable ...


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