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Suitt v. Commissioner of Social Security

November 22, 2010

DILLON S. SUITT, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 18) and defendant's cross-motion for summary judgment (Doc. 19).

I. PROCEDURAL HISTORY

Plaintiff applied for social security benefits on January 9, 2004.*fn1 In the application, plaintiff claims that disability began on January 1, 1999. Plaintiff claims that disability is caused by a combination of "depression, personality disorder, and suicide attempts." Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing. The notice of hearing was sent on September 28, 2005. Plaintiff did not appear at the hearing and a notice to show cause was issued on October 31, 2005. After plaintiff failed to respond, plaintiff's case was dismissed by order issued on January 3, 2006. On July 27, 2007, the Appeals Council set aside the dismissal.*fn2 A new hearing was held on March 13, 2008, before Administrative Law Judge ("ALJ") Brenton L. Rogozen. In a March 24, 2008, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The medical evidence establishes that the claimant that the "severe" impairments of a mood disorder, not otherwise specified, a personality disorder, not otherwise specified, and a history of polysubstance abuse and alcohol dependence/abuse in reportedly nearly-complete sustained remission since October 30, 2007;

2. The severity of the claimant's impairments, in combination, has medically equaled the requirements of Sections 12.04 and 12.06 of the regulations since October 30, 2007, and they are expected to preclude him from working for at least 12 continuous months:

3. The claimant's history of polysubstance and alcohol dependence/abuse is not a factor material to the findings of "disability" as of the determined onset date of October 30, 2007, but was prior to that date; because the record includes no documented period of sustained sobriety for the claimant prior to October 30, 2007, there is no contraindication to the undersigned's finding that independent of his polysubstance and alcohol dependence and abuse disorders, he would have been able to perform at least simple repetitive tasks; based then on his age, education, and vocational experience, a findings of "not disabled" would be reached for all periods prior to October 30, 2007, as directed by SSR 85-15P, 20 C.F.R. 426.935(b) and Section 1614(a)(3) of the Social Security Act; and

4. The claimant has been under a "disability" since October 30, 2007, but not before that date, making him not entitled to Disability Insurance Benefits, but eligible at least on medical grounds to receive Supplemental Security Income payments beginning on that date.

After the Appeals Council declined review on April 30, 2009, this appeal followed.

II. SUMMARY OF THE EVIDENCE

The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:

April 21, 1997 -- Plaintiff voluntarily reported to the hospital complaining of depression and increasing suicidal ideation. Plaintiff was diagnosed with major depression, marijuana abuse, methamphetamine abuse, and alcohol abuse.

July 2, 1997 -- Plaintiff was admitted to the hospital as a danger to self. Plaintiff arrived at the hospital smelling of alcohol and obviously intoxicated. The treating doctor noted: "The patient's drug behavior dates back at least one decade and has been unremitting."

April 28, 1998 -- Plaintiff was admitted to the hospital as a danger to self. His toxicology screen was positive for illegal drugs though he denied recent use. On discharge, plaintiff refused any follow-up treatment.

November 4, 1999 -- Pavitar Cheema, M.D., performed a comprehensive psychiatric evaluation. At that time, plaintiff complained of bipolar disorder. He also told the doctor that he had been sober for the past 11 months.

November 25, 2002 -- Plaintiff was admitted to Sequoia Hospital as a danger to self. On discharge, the doctor stated:

He was initially noted to be somewhat dysphoric but over the next few days he seemed very pleasant and interacted appropriately with staff and peers. He was very focused on wanting to return home. He reported that he does have a job to go to. He works as a carpenter and had temporary housing with his boss. He was agreeable to follow up at mental health clinic upon discharge from the hospital. He was more stable in his mood and affect. With continued structured support and milieu therapy, he showed significant improvement and was discharged. . . .

The doctor diagnosed bipolar affective disorder in remission and amphetamine dependence.

December 13, 2002 -- Plaintiff was admitted to San Mateo County Health as a danger to self. Plaintiff's blood tested positive for methamphetamine and marijuana. Plaintiff was diagnosed with amphetamine abuse, marijuana abuse, alcohol abuse, and "rule out mood disorder NOS." The doctor's instruction on discharge was: "The patient to stop substance use."

December 28, 2002 -- Plaintiff was hospitalized after being brought in by police as a danger to self. The chart notes reflect that, while plaintiff was diagnosed two years prior with a bipolar disorder, it was unclear if plaintiff was clean and sober at the time of the diagnosis. The treating physician gave plaintiff a discharge diagnosis of amphetamine abuse, marijuana abuse, alcohol abuse, and a personality disorder, NOS. Plaintiff's toxicology screen was negative for drugs.

December 31, 2002 -- Plaintiff was discharged from the hospital following his having self-reported with a complaint of "My emotions and feelings, they're all mixed up and confusing." The doctor noted a long history of substance abuse which plaintiff stated he did not see as a problem. Plaintiff stated: "I need it with the lifestyle that I live, since I have no place to live." On discharge, plaintiff was diagnosed with amphetamine abuse, marijuana abuse, alcohol abuse, and a mood disorder, NOS.

January 5, 2003 -- A form entitled "Assessment of Suicide or Self-Harm" prepared by staff at San Mateo County Health indicates that the only risk factor for suicide or self-harm is substance abuse.

February 4, 2003 -- A "Physical Nursing Assessment" form prepared at San Mateo County Health indicates that plaintiff admitted ...


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