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Benitez v. Astrue

May 23, 2008

ARNOLD BENITEZ, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Richard J. Sullivan, District Judge

MEMORANDUM AND ORDER

Plaintiff Arnold Benitez brings this action to challenge the May 12, 2004 final determination of the Commissioner of the Social Security Administration*fn1 (the "Commissioner" and the "SSA," respectively) denying his claim for Supplemental Security Income ("SSI") under the Social Security Act, 42 U.S.C. § 401 et seq. (the "Act"). Benitez moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, requesting that the Court reverse the Commissioner's decision and remand for further administrative proceedings. The Commissioner cross-moves for judgment on the pleadings affirming the decision. For the reasons herein, Benitez's motion is denied and the Commissioner's motion for judgment on the pleadings is granted.

I. BACKGROUND

A. The Facts*fn2

1. Personal History

Benitez was born on July 6, 1938, and was sixty-four years old at the time when SSI benefits were denied. (Tr. 104, 474.) He completed eleventh grade and can speak and write in English. (Tr. 474.) At the time of his administrative hearing, Benitez was separated from his wife (Tr. 444), and living alone at New Era Veterans, a facility for veterans with physical and mental health problems. (Tr. 467-67A.)

According to Benitez, after serving in the military from 1955 to 1957, he became a diamond setter in 1963 and spent most of his working life in that profession. (Tr. 444-45, 447.) As a diamond setter, he mounted diamonds on rings using a machine and performed his work while sitting. (Tr. 477.) He worked for a variety of companies and then became self-employed. (Tr. 476.) From 1987 to1994, Benitez was incarcerated. (Tr. 190, 447, 482-83.) After his release, he briefly returned to his job as a diamond setter. (Tr. 445, 478.) In 1996, Benitez went to Puerto Rico to work in a family restaurant, but he returned to New York shortly thereafter because he was unable to financially contribute to the business. (Tr. 445-46, 478.) Benitez has not performed any work since 1996; his only income since that time has been public assistance and Social Security retirement benefits. (Tr. 478-79, 474.)

Benitez claims he is unable to work because of asthma, post-traumatic stress disorder ("PTSD"), and depression. (Tr. 447-48, Tr. 475, 482.)

2. Medical History

a. Mental Health Impairments

i. Depression

On October 4, 1996, Benitez was taken by ambulance to Jacobi Medical Center after expressing a desire to commit suicide to his probation officer. (Tr. 198.) The intake examination revealed that he had no past psychiatric hospitalizations, but he had become increasingly depressed because he had separated from his wife and was facing imminent eviction from his home. (Tr. 198-99.) He had not been sleeping or eating and exhibited poor judgment, insight and impulse control. (Id.) On admission, he was diagnosed with adjustment disorder with depressed mood and suicidal ideation. (Tr. 199.) Benitez was admitted for inpatient hospitalization and responded well to treatment. (Tr. 200, 202.) Upon his discharge on November 29, 1996, his affect was brighter, his mood euthymic, and he no longer had suicidal thoughts. (Id.)*fn3 His insight, judgment and impulse control were all described as "fair." (Id.) On November 29, 1996, he was medically and psychiatrically cleared from Jacobi Medical Center and referred to outpatient treatment at Metropolitan Hospital. (Tr. 202-203.)

While in outpatient treatment at Metropolitan Hospital, Benitez was diagnosed with an adjustment disorder with a depressed mood. The doctor also noted that a depressive disorder "NOS" (not otherwise specified) was to be ruled out. (Tr. 280-83.) He was treated with Paxil and noted to be compliant with his medication. (Tr. 286.) Consulting psychiatrist Dr. Katz diagnosed him with manic depressive disorder with a GAF of 45 and asserted that Benitez's "employment capacity depends on an evaluation of his psychiatric condition."*fn4 (Tr. 224.)

His condition continued to improve and, by 1997, his depression was in remission.*fn5 Dr. Luigi Marcuzzo, a consulting psychiatrist from HS Systems, diagnosed Benitez as having major depression with psychotic features in partial remission on February 10, 1997.*fn6 (Tr. 227.) He found no limitations on Benitez's memory and understanding, but noted "some limitation on sustained concentration, persistence, social interaction and adaptation due to Benitez's depression." (Id.) Dr. Marcuzzo believed that Benitez could be employed in a low stress, part-time job. (Id.) In May 1997, Dr. Carlos Ruiz, a psychiatrist at Benitez's residential facility, New Era Veterans, diagnosed his major depression to be in remission and noted that his GAF was 85, observing that he was "goal directed on achieving a job and permanent independent housing."*fn7 (Tr. 372, 374.) Benitez stopped taking medication for depression by August 1997, but agreed to continue therapy to guard against any relapses in his condition. (Tr. 287.) Upon subsequent visits in May 1998 and July 1999, Dr. Ruiz's diagnosis remained essentially the same: major depression in remission and a GAF of 90. (Tr. 378, 382.)

ii. PTSD Diagnosis

Dr. Ruth Shaffer diagnosed Benitez with PTSD in April 1998.*fn8 Dr. Shaffer and Benitez met in bi-monthly or monthly sessions. She also completed several Psychiatric/Psychological Impairment Questionnaires assessing Benitez's condition. Dr. Shaffer subsequently diagnosed PTSD, major depression recurrent in remission, asthma, and a GAF on Axis V of 60 in a psychological assessment questionnaire completed on February 20, 2002.*fn9 (Tr. 292.) She noted that PTSD is a lifelong condition for which there is no cure. (Id.) She observed that Benitez suffered from sleep and mood disturbances, pervasive loss of interest, paranoia, feelings of guilt and worthlessness, social withdrawal and isolation, intrusive recollections of a traumatic experience, difficulty maintaining close, trusting personal relationships, and mistrust of authority figures. (Tr. 293.)

With respect to functioning at work, Dr. Shaffer indicated Benitez had no limitations on understanding and memory or the ability to carry out detailed instructions, sustain ordinary routine without supervision, and maintain socially appropriate behavior. (Tr. 295-97.) She noted mild limitations on Benitez's ability to maintain attention and concentration for extended periods, to get along with co-workers without distracting them, and to respond appropriately to changes in the work setting. (Id.) Benitez's ability to perform activities within a schedule, maintain regular attendance, work in coordination with others without distraction, complete a normal workweek, interact appropriately with the general public, respond appropriately to criticism from supervisors, and set realistic goals were all moderately limited. (Id.) Dr. Shaffer further observed that under stress, Benitez would leave work early or call in sick and that PTSD can trigger an asthma attack. (Tr. 297-98.) She believed Benitez would miss work more than three times a month. (Tr. 299.) She noted that Benitez was not taking any medications to treat his condition. (Tr. 297.)

Dr. Shaffer completed another psychiatric assessment form on September 13, 2002 that was consistent with her prior diagnosis. (Tr. 384-88.) She noted Benitez was taking medication for asthma, but not for psychiatric problems. (Tr. 385.) Her assessment of Benitez's work abilities was good to fair in terms of his ability to adjust to a job, including following rules, relating to coworkers, dealing with stress, maintaining concentration, and making social adjustments. (Tr. 386-87.) His ability to understand and carry out complex or detailed instructions was very good. (Tr. 386.) She indicated Benitez had no memory impairment (Tr. 384), and when he was not distracted by intrusive thoughts, he had the ability to perform well. (Tr. 387.) Dr. Shaffer opined that his difficulties establishing personal relationships made him "a poor candidate for employment." (Id.)

Nearly a year after SSI benefits were denied, Dr. Shaffer completed another Psychiatric/Psychological Impairment Questionnaire, dated January 29, 2004. (Tr. 427-34.)*fn10 The diagnosis was the same: PTSD with a GAF of 60. (Tr. 427.) Benitez exhibited some additional symptoms including poor memory, recurrent panic attacks, difficulty thinking or concentrating, and generalized persistent anxiety. (Tr. 428.) He also showed marked limitations in certain work related functions, including his ability to maintain attention and concentration for extended periods, maintain regular attendance, work in coordination with or in proximity to others without being distracted by them, and respond appropriately to changes in the work setting. (Tr. 430-32.) Dr. Shaffer opined that he was capable of tolerating low stress workplaces, but unable to work in a team environment due to his inability to trust co-workers and authority figures. (Tr. 433.)

The consulting psychiatrists agreed with Dr. Shaffer's diagnosis of PTSD, but differed as to the extent of Benitez's PTSD and how it interfered with his ability to carry out work related functions.

On March 4, 2002, Dr. Eugene Allen, consulting psychiatrist from Diagnostic Health Services, Inc., diagnosed Benitez with, inter alia, post-traumatic stress disorder. (Tr. 273.) He opined that Benitez "has a fair ability to understand, carry out and remember instructions and a fair ability to respond appropriately to supervisors, co-workers and work pressures in a work setting, perhaps in a sheltered type setup." (Id.) Dr. Allen also found that Benitez's mental impairments did not limit his ability to understand, remember and carry out instructions, and only slightly limited his ability to work with others. (Tr. 275-76: Medical Source Statement of Ability To Do Work Related Activities Questionnaire.)

Dr. Charles Rosenbloom offered a diagnosis of PTSD on August 12, 2002. (Tr. 324-32.) He also diagnosed Benitez with depressive disorder, bronchial asthma, sleep apnea, hypertension, and gave him a GAF of 45 on Axis V, significantly lower than the GAF of 60 diagnosed by Dr. Shaffer.*fn11 (Tr. 324.) Dr. Rosenbloom opined that Benitez was "totally disabled emotionally and unable to function in any job in any capacity." (Tr. 334.) Dr. Rosenbloom observed that Benitez was markedly limited in his ability to perform most work-related functions, including his ability to sustain concentration for extended periods and his ability to interact with others. (Tr. 322-23.)

b. Physical Impairments

Benitez also claims to be disabled because he has asthma. An internal medical exam by Dr. Peter Graham showed Benitez's pulmonary functioning to be "grossly within normal limits" on February 10, 1997. (Tr. 234-38, Tr. 235.) A chest x-ray taken that day demonstrated no "acute lung pathology." (Id.) During the exam, Benitez was oriented and alert, with no memory difficulties or problems walking or sitting. (Tr. 234-35.)

Subsequently, on April 4, 1997, Benitez was treated at the Bronx VA Hospital after complaining of chest pressure. (Tr. 353.) He was diagnosed as a healthy 59 year old smoker with atypical chest pain, who had recently recovered from an upper-respiratory infection and a cough. (Tr. 354.) An April 11, 1997 radiology report failed to demonstrate any evidence of cardiac, pleural or pulmonary abnormality. (Tr. 355.) A stress test performed on May 8, 1997 was normal. (Tr. 242-43.) A pulmonary function analysis performed on November 3, 1999 found a mild obstructive lung defect, but lung volumes and diffusion capacity were within normal limits. (Tr. 261-65.)

On May 10, 2001, Benitez was also treated at Westchester Square Medical Center's emergency room for an attack of acute asthma bronchitis. (Tr. 399-406.) Benitez told doctors he suffered from a history of asthma, but that he had never been intubated nor was he currently taking steroids for his condition. (Tr. 401). He was given two inhalant ...


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