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Lukaszek v. Barnhart

May 13, 2008

JOSEPH LUKASZEK, PLAINTIFF,
v.
JOANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



DECISION AND ORDER

Introduction

1. Plaintiff Joseph Lukaszek challenges an Administrative Law Judge's ("ALJ") determination that he is not entitled to disability insurance benefits ("DIB") under the Social Security Act ("the Act"). Plaintiff alleges he has been disabled since August 26, 1998, because of pain and limitations from gout, osteoarthritis, and degenerative joint disease. Plaintiff met the disability insured status requirements of the Act at all times pertinent to this claim.

Procedural History

2. Plaintiff filed an application for DIB on September 17, 1998, alleging an onset of disability of August 26, 1998. His application was denied initially, and upon reconsideration. Plaintiff filed a timely request for a hearing before an ALJ, and on April 6, 1999, Plaintiff appeared and testified before ALJ Carl E. Stephan. The ALJ considered the case de novo and on June 9, 1999, issued a decision finding that Plaintiff was not disabled. Plaintiff requested the Appeals Council review the ALJ's decision. In the interim, Plaintiff filed a second application for DIB on August 9, 2001, and under the second application was initially determined to be disabled on March 13, 2001, with an onset of disability date of April 24, 2000. On January 24, 2002, the Appeals Council granted Plaintiff's request for review of the ALJ's June 9, 1999, decision, vacated that decision, and also reopened the State agency's favorable disability determination pursuant to 20 C.F.R. §§ 404.987, 404.988, and 404.989. By its order dated April 5, 2002, the Appeals Council consolidated both claims, and remanded the claims for further administrative proceedings. Plaintiff, his attorney, and a vocational expert appeared before ALJ Stephan August 21, 2002. After reconsideration of the evidence in Plaintiff's record at the time of the June 9, 1999 decision, as well as new and material medical and other evidence proffered by Plaintiff, on September 25, 2002, the ALJ issued a decision finding Plaintiff not disabled at any time during the time frames relevant to his claims. On June 3, 2005, the Appeals Council denied Plaintiff's request for review.

3. On July 5, 2005, Plaintiff filed a Civil Complaint challenging Defendant's final decision and requesting the Court review the decision of the ALJ pursuant to Section 205(g) and 1631(c) (3) of the Act, modify the decision of Defendant, and grant DIB benefits to Plaintiff.*fn1 The Defendant filed an answer to Plaintiff's complaint on November 29, 2005, requesting the Court todismiss Plaintiff's complaint. Plaintiff submitted a Memorandum of Law in Support of Plaintiff's Complaint and Motion for Judgment on the Pleadings on March 9, 2006. On May 5, 2006, Defendant filed a Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings*fn2 pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. After full briefing, the Court deemed oral argument unnecessary and took the motions under advisement.

Discussion

Legal Standard and Scope of Review

4. A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. § 405(g), 1383 (c)(3); Wagner v. Sec'y of Health and Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if it is not supported by substantial evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). "Substantial evidence" is evidence that amounts to "more than a mere scintilla," and it has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed. 2d 842 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

5. "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

6. The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act. See 20 C.F.R. § 404.1520, 416.920. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 2291, 96 L.Ed. 2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.

7. This five-step process is detailed below: First, the [Commissioner] considers whether the claimant is currently engaged substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work active-ties. If the claimant has such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Rosa v. Callahan, 168 F.3d 72,77 (2d Cir. 1999); 20 C.F.R. § 404.1520.

8. While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n.5; Ferraris v. Heckler, 728 F.2d 582 (2d Cir. 1984). The final step of this inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed. 2d 66 (1983).

9. In this case, the ALJ made the following findings with regard to factual information as well as the five-step process set forth above: (1) Plaintiff met the special insured status requirements of the Social Security Act on August 26, 1998, the date the Plaintiff became unable to work, and continues to meet them through December 31, 2002 (R. at 20);*fn3 (2) Plaintiff has not engaged in substantial gainful activity since August 26, 1998 (R. at 20); (3) The medical evidence establishes that Plaintiff has osteoarthritis and history of gout, but does not establish medical findings which meet or equal in severity the clinical criteria of any impairment listed in Appendix 1, Subpart P, Regulations No. 4 (R. at 20); (4) Plaintiff's testimony was generally credible but did not support a basis for a finding of disability (R. at 20); (5) Plaintiff retains the residual functional capacity to frequently lift and carry from 20 to 25 pounds and occasionally carry from 26 to 50 pounds, sit for eight hours, stand for three hours at a time, walk for four hours in an eight-hour day, and for three hours at a time, cannot use his feet for repetitive movements such as pushing and pulling of leg controls, cannot bend, squat, crawl, climb, or reach, and has moderate restrictions regarding unprotected heights, being around dangerous moving machinery, and operating automotive equipment. Thus, the claimant can perform his past relevant sedentary and skilled work as a social welfare examiner (R. at 20-21); and (6) Plaintiff has not been under a disability with the meaning of the Act (R. at 21). Ultimately, the ALJ determined Plaintiff was not entitled to a period of disability and disability insurance benefits as set forth in sections 216(i) and 223(d) of the Social Security Act (R. at 27).

Plaintiff's Allegations

The ALJ Failed to Consider Plaintiff's Combination of Impairments When Determining His Residual Functional Capacity

10. Plaintiff's first challenge to the ALJ's decision is that he failed to consider Plaintiff's combination of impairments when determining his residual functional capacity. See Plaintiff's Brief, p. 2; see also 20 C.F.R. § 404.1545(d); 20 C.F.R. § 404.15692(c). Specifically, Plaintiff alleges he has both physical and mental diagnoses that, in combination, cause exertional and non-exertional limitations. See Plaintiff's Brief, pp. 7-8. Plaintiff complains especially that the ALJ did not consider the psychological evaluation report of Dr. Charles Kennedy, a Veterans' Administration psychologist, which stated Plaintiff suffered from Post Traumatic Stress Disorder (PTSD) (R. at 349-350). Thus, according to Plaintiff, the ALJ committed reversible error.

The Court disagrees with Plaintiff's claim that the ALJ failed to properly consider the psychological evaluation of Dr. Kennedy. Prior to Plaintiff's assessment for PTSD by Dr. Kennedy, he did not complain of, or seek treatment for, any behavioral or psychological impairment except alcoholism, which Plaintiff had controlled for over 15 years by daily attendance at Alcoholics Anonymous (AA) meetings (R. at 449). From the record, it is clear that Dr. Kennedy began following Plaintiff for PTSD only beginning November 26, 2001 (R. at 257). Dr. Kennedy continued assessing Plaintiff for PTSD on February 19, 2002, March 12, 2002, May 20, 2002, and May 31, 2002, using a psychological battery of self-report measures including the Mississippi Scale for Combat related Stress, the Keane PTSD Subscale of the MMPI2, the Dissociative Experiences Scale, and the Back Depression inventory, as well as behavioral observations (R. at 254, 256, 257). On August 7, 2002, Dr. Kennedy issued his evaluation that Plaintiff suffered from PTSD as a result of his service in Vietnam from May 1967, through May 1968 (R. at 349-250). Dr. Kennedy noted Plaintiff's psychological tests and interviews revealed a chronic and persistent pattern of mild distress that impacted Plaintiff's ability to conduct normal daily activities (R. at 350). He rated Plaintiff's Global Assessment of Function (GAF) at 61, suggesting Plaintiff had some mild symptoms, such as depressed mood and mild insomnia, OR some difficulty in social, occupational, or school functioning; but, hegenerally functioned well and had some meaningful interpersonal relationships*fn4. Id.

Further, in Plaintiff's Disability Report of September 27, 1998, he claimed only the impairments of gout, a left knee problem, and osteoarthritis (R. at 83). He reported broad and varied activities of daily living, including cooking, shopping, caring for his invalid mother, reading, daily attendance at AA meetings, and regular social visits (R. at 93). Plaintiff reported no on-thejob problems other than those caused by his gout, left knee impairment, and osteoarthritis (R. at 94).

At his first hearing before the ALJ on April 6, 1999, Plaintiff claimed only a left knee impairment and arthritis (R. at 436-457). While the ALJ questioned Plaintiff about his combat service in Vietnam, Plaintiff did not report any psychological condition or symptoms stemming from that service (R. at 448-449). At his second hearing before the ALJ on August 21, 2002, Plaintiff again claimed to be impaired only by gout, arthritis, degenerative joint disease, and drowsiness from medication (R. at 462-516). Under questioning by both the ALJ and Plaintiff's attorney about his impairments, symptoms and treatments, Plaintiff did not mention any mental impairment, or mental limitation. Id.

On May 19, 2004, a representative of the Department of Veterans Affairs (DVA) provided an explanation to Plaintiff about his ten percent disability rating because of PTSD, and noted:

Treatment reports, Veterans Administration Center Albany, from January 21, 1986 through May 6, 2004, shows recent treatment for PTSD. An assessment from Dr. Kennedy on August 7, 2002 gives a diagnosis of PTSD. The examination showed you were alert, cooperative, and fully oriented. There was no evidence of hallucinations, delusions, looseness of association, or flight of ideas. There was no suicidal or homicidal ideation or intention. You reported occasional nightmares, efforts to avoid war experiences, memory problems, sleep difficulties, episodic anger outbursts, mood shifts, and emotional numbness. The interview revealed a chronic and persistent pattern of mild distress.

An evaluation of 10 percent is assigned from October 29, 1999. An evaluation of 10 percent is granted whenever there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by continuous medication.

The evidence does not show that this condition presents such an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular scheduler standards.

(R. at 379).

While this explanation of the DVA's assessment of Plaintiff's PTSD impairment was received by the Appeals Council after the ALJ's decision of September 25, 2002, it is clear to the Court that the the Appeals Council considered the opinion of Dr. Kennedy to be an accurate impression of the effect of PTSD on Plaintiff's daily function. Thus, while the ALJ had Dr. Kennedy's evaluation in his possession at the time of his decision, the opinion reflected such minimal findings and mild impairment because of PTSD that, coupled with Plaintiff's failure to complain about behavioral or mental limitations, and his attorney's failure to question or assert such limitations, the ALJ cannot be faulted for failing to assume that Plaintiff's diagnosis of PTSD caused more than a mild effect on his day-to-day functioning.

Plaintiff's diagnosis of PTSD, even with his acknowledged severe impairments of gout and osteoarthritis, do not prove Plaintiff is disabled within the meaning of the Act. See 42 U.S.C. § 423 (d) (2) (A). Per the Act, an individual is considered to be under a disability "only if he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Id. Based on the ALJ's consideration of the evidence of record, including all documents identified in the record, Plaintiff's testimony at two hearings, and the ALJ's observations of Plaintiff, the ALJ concluded Plaintiff could perform a wide range of sedentary to light work, and could return to his past relevant sedentary employment as a welfare claims examiner (R. at 20-21). Thus, the Court finds the ALJ considered all of Plaintiff's impairments and limitations contained in the record, and properly found him not disabled within the meaning of the Act.

The ALJ Failed to Give Appropriate Weight to the Opinions of Plaintiff's Treating Physicians

11. Plaintiff's second challenge to the ALJ's decision is that he did not give controlling weight to the opinions of Plaintiff's treating medical specialists, specifically Doctors Charles Adomfeh, M.D., and Charles Kennedy, Ph. D. See Plaintiff's Brief, pp. 2, 9-10. Instead, Plaintiff claims the ALJ substituted his own opinion for that of themedical experts. See Plaintiff's Brief, p. 10. Plaintiff asserts that since Dr. Adomfeh's findings and observations were substantially consistent with the findings and observations of consultative examiner Dr. Amelita Balagtas, the opinion of Dr. Adomfeh with regard to Plaintiff's limitations and his residual functional capacity, should have been controlling. See Plaintiff's Brief, p. 9. Further, Plaintiff claims the ALJ failed to address Dr. Kennedy's opinion of Plaintiff's mental health status at all. See Plaintiff's Brief, pp. 9-10. Thus, because the ALJ did not properly consider the combination of Plaintiff's mental and physical impairments, his decision is not supported by the substantial evidence of record. See Plaintiff's Brief, p. 10.

According to the "treating physician's rule,"*fn5 the ALJ must give controlling weight to the treating physician's opinion when the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record." 20 C.F.R. § 404.1527(d)(2); see also Green-Younger v. Barnhart, No. 02-6133, 2003 WL 21545097, at *6 (2d Cir. July 10, 2003); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).

Even if a treating physician's opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless give it "extra weight" under certain circumstances. Under C.F.R. § 404.1527(d)(1)-(6), the ALJ should consider the following factors when determining the proper weight to afford the treating physician's opinion if it is not entitled to controlling weight: (1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors that are brought to the attention of the court. See de Roman, 2003 WL 21511160, at *9 (citing C.F.R. § 404.1527(d)(2); see also Shaw, 221 F.3d at 134; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).

Having reviewed the evidence at issue, this Court detects no reversible error in the ALJ's treatment of the opinion of Plaintiff's treating physician, Dr. Adomfeh, or the DVA psychologist, Dr. Kennedy. Rather, the ALJ's decision reflects his extensive evaluation of all the medical evidence in the record developed from the date of Plaintiff's alleged onset of disability on August 26, 1998, through the date of the ALJ's decision on September 25, 2002 (R. 14-21). The medical evidence includes treatment notes, evaluations of Plaintiff's progress, and test results (R. at 106-516). While much of the medical record provided by Dr. Adomfeh is consistent with the records of Plaintiff's other treating and examining physicians, his August 2002 opinion of Plaintiff's physical capacities is unsupported by his own records and the records of the other physicians (R. at 407-408). There is simply no medical evidence provided by Dr. Adomfeh that suggests Plaintiff's medical condition had deteriorated so severely that by August 2002 he could not use his hands for any repetitive motion. With respect to the PTSD assessment of Dr. Kennedy, the doctor opined Plaintiff has "mild distress that impacts on the patient's ability to conduct normal daily activities" (R. at 350). He also noted Plaintiff participated in a "VVRP group"*fn6, continued frequent attendance at AA meetings, and would be offered individual psychotherapy if needed. Id. It is unclear from the record if Plaintiff ever established a treating relationship with Dr. Kennedy, or with any other mental health professional who could be classified as a treating source, to treat symptoms of PTSD. Thus, for the purpose of Plaintiff's challenge to the ALJ's decision, Dr. Kennedy cannot be considered a "treating physician," but served more in the role of a consulting examiner. See 20 C.F.R. 404.1527(4)(d)(2).

On May 1, 1998, Plaintiff was diagnosed by his treating physician, Dr. Joel Koslow, with severe osteoarthritis of his left knee (R. at 121-122). The doctor prescribed anti-inflammatory medication, and recommended Plaintiff stay off work from his machine maintenance job with the United States Postal Service (USPS) until May 11, 1998 (R. at 121). Plaintiff followed up with Dr. Koslow, who then recommended he stay off work until July 25, 1998 (R. at 123).

On July 22, 1998, Plaintiff underwent a surgical consultation with Dr. John Albrigo (R. at 106-107). In Dr. Albrigo's report to Dr. Koslow, he noted Plaintiff complained of recurrent left knee swelling and pain, but could remember no specific trauma (R. at 106). Upon examination, the doctor found Plaintiff had a full range of motion in the knee, but noted discomfort with marked flexion in the popliteal region, and tenderness to palpation at the medial joint line. Id. The knee was stable to all stress tests, and alignment appeared normal. Id. Dr. Albrigo observed x-rays of Plaintiff's knee appeared normal, with no joint space narrowing, evidence of loose body, or other abnormality. Id. The doctor suspected a tear in the medial meniscus of the left knee and recommended arthroscopic surgery (R. at 107).

Plaintiff was again examined by Dr. Koslow on August 25, 1998 (R. at 116-117). Dr. Koslow certified Plaintiff's absence from work under the Family and Medical Leave Act (FMLA) for several months longer (R. at 116).

On September 15, 1998, Plaintiff was examined by Dr. Nhe Le at the Veterans Administration Medical Center (VAMC) in Albany, New York (R. at 157-158). Plaintiff disclosed a history of gout in his foot, and complained of tenderness and pain in his left knee, and both shoulders (R. at 157). Plaintiff's physical examination was unremarkable (R. at 158). Dr. Le noted that while Plaintiff was slightly tender in both shoulders, he had no edema or swelling, and no limitation of range of motion in his shoulders. Id. The doctor opined ...


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