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Roos v. Astrue

June 4, 2008

X EUGENE ROOS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

OPINION AND ORDER

Eugene Roos brings this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security denying his claim for Social Security Disability ("SSD") benefits. The parties have consented to this matter being determined by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The Commissioner has moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), and Roos has cross-moved for judgment on the pleadings. For the reasons stated below, the Commissioner's motion is granted, and Roos's motion is denied.

I. BACKGROUND

A. Roos's Claim for Benefits and Procedural History

Roos filed an application for SSD benefits on August 14, 1997. R. 138-140A.*fn1 Roos claimed that he had been unable to work beginning on November 9, 1996 until the time of his application. R. 138. The application was denied on January 14, 1998, and was denied again upon reconsideration on March 4, 1998. R. 33-34, 41-44, 47-49. Following the denial of his application, Roos requested a hearing before an Administrative Law Judge ("ALJ"). R. 50-51. On December 9, 1998, Roos appeared with counsel at a hearing before ALJ Neil A. Ross, who remanded the matter with the consent of counsel to develop the record about mental health issues raised for the first time at the hearing.

R. 37-38, 1086-89. Upon remand, Roos's application was again denied, reconsideration was denied and the case was returned to the ALJ. R. 39-40, 54-70. A hearing was held on May 3, 2000, and on July 27, 2000, ALJ Ross issued a written decision finding that Roos was not disabled. R. 91-109. Roos requested a review of the hearing decision, and on June 19, 2003, the Appeals Council issued an order remanding the matter to the ALJ for further consideration. R. 71, 73-75, 112-15. Hearings were held before ALJ Dennis G. Katz on December 6, 2005 and February 24, 2006. R. 1029-55, 1056-85. On March 7, 2006, ALJ Katz issued a decision finding that Roos was not disabled at any time prior to the date he was last insured. R. 16-32. Roos requested review of this decision by the Appeals Council, R. 13-14, 1023-28, but the Appeals Council denied the request on November 2, 2006, R. 6-9.

Roos filed the instant action on December 19, 2006. See Complaint, filed Dec. 19, 2006 (Docket # 1). The Commissioner moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) on September 7, 2007. See Notice of Motion, filed Sept. 7, 2007 (Docket # 11); Memorandum of Law in Support of Defendant's Motion for Judgment on the Pleadings, filed Sept. 7, 2007 (Docket # 12) ("Def. Mem."). Roos cross-moved for judgment on the pleadings. See Cross-Motion, filed Sept. 13, 2007 (Docket # 14); Memorandum of Law in Support of Plaintiff's Cross-Motion for Judgment on the Pleadings, filed Sept. 13, 2007 (Docket # 15) ("Pl. Mem."). The Commissioner filed a reply memorandum on October 19, 2007. See Memorandum of Law in Opposition to Plaintiff's Motion for Judgment on the Pleadings and in Further Support of Defendant's Motion for Judgment on the Pleadings, filed Oct. 19, 2007 (Docket # 17).

B. Evidence Presented at the Hearings

1. Roos's Testimony

a. May 2000 Hearing

During a hearing before ALJ Ross on May 3, 2000, Roos testified that he was born in Brooklyn on June 30, 1959. R. 1093. He completed high school and one year of college. Id. He worked as a New York City Police Officer from July 1981 through November 1996. Id.

Roos had a heart attack in November 1996 and was released from the Police Department six months later. Id. About six months after his heart attack, he began feeling chest pains again and was admitted to the hospital three times in one month. R. 1095. In April 1997 Roos began feeling lightheadedness followed by chest pain, nausea and weakness. R. 1096. In July 1997, he had a stent implantation procedure performed to fix a blockage in his heart. R. 1095-96.

Roos testified that he suffered from tension headaches that "never go[] away," R. 1096, and that he gets severe chest pains about three times a month, which subside about 10 to 15 minutes after he takes Nitroglycerine spray, R. 1098. In response to a question about physical limitations relating to his disability, Roos testified that he could not sit or stand for periods of time because of lower back pain. R. 1099-1100. He also testified that he walks on a treadmill for about one-half mile at a time. R. 1100-01. Roos said his concentration was not "too bad," but that his memory was poor. R. 1104. Roos testified that the only reason he could not do a job like selling theater tickets -- one in which he could sit or stand periodically -- was that he did not like to be around large groups of people, but he also said that he might "fly off the handle" if he was working with the public. R. 1106-07.

b. December 2005 Hearing

During a hearing before ALJ Katz on December 6, 2005, Roos testified that in June 1997, while recovering from his heart attack, he started experiencing psychological symptoms such as feeling panicky and weak. R. 1059-61. He also began feeling lightheaded and could not concentrate. R. 1061. The onset of these symptoms caused him to become depressed. Id. Roos acknowledged that his condition has improved, but he testified that he still gets chest pain and becomes short of breath from exertion like walking quickly. R. 1065. Roos began having trouble sleeping in June or July 1997. R. 1066. He said that he sleeps better with a "C-Pap machine," but he still has to take a nap three to four hours after waking up. R. 1067. Roos also complained of a constant headache. Id. He reported having difficulties with concentration and his short-term memory. R. 1070-71.

Roos testified that he can perform activities of daily living, use the phone, use the computer for about an hour a day, and read the newspaper for a short period. R. 1069-73. In addition, Roos said he drives himself short distances but does not like to drive alone because he falls asleep. R. 1070. Roos testified that he could travel on an airplane on his own, and that he thinks he could use a bus or a taxi. R. 1072-73. He said that he had helped his daughter set up trains around the Christmas tree the previous day. R. 1078.

Roos also testified that he socializes occasionally with friends, and that he gets along with people generally. R. 1075. However, Roos testified that he had problems with people in authority such as supervisors at work. R. 1075-76.

Roos testified that he continues to feel very depressed during what he described as "crash[es]," which occur about three times a week and can last from 15 minutes to two hours. R. 1080-81. He said that staying awake is the main thing preventing him from working. R. 1083. He also said his lack of concentration hindered him from working. Id.

2. Vocational Evidence

Donald Silve appeared as a vocational expert at a hearing on February 24, 2006. R. 1034-51 (duplicated at R. 1122-1139). He testified that Roos's past employment as a police officer was skilled and could require a heavy to very heavy physical demand. R. 1035. The ALJ proposed a hypothetical person of Roos's age, education and work experience who could do light exertion, perform basic tasks, could not do any aerobic activity and could only interact with the public one-third of his time. R. 1036-37. Silve stated that there were numerous unskilled jobs available in the national and local economies in which this person could work, including a small products assembler, an electric sealing machine operator, a final assembler, a jewelry preparer, a jewelry painter or a cleaner/housekeeper in a commercial establishment. R. 1037-40, 1043. These jobs generally involve minimal contact with a supervisor unless the employee is doing something wrong. R. 1042. Silve could not identify any jobs in the national or regional economy for a person who could not get along with a supervisor at all, R. 1043-44, and he testified that a person who had to be absent from work three times a month or more would not be employable, R. 1045.

C. Records Related to Roos's Medical Condition

We next summarize the written records relating to Roos's medical condition.

1. Danbury Hospital

Roos was admitted to Danbury Hospital on November 9, 1996 complaining of oppressive chest pain. R. 248. An eletrocardiogram that was performed upon admission showed an acute myocardial infarction (commonly known as a heart attack), and an echocardiogram showed regional wall motion abnormality involving the anterior wall. Id. Roos was admitted to the coronary care unit and administered Heparin and Nitroglycerin through an IV. Id. A cardiac catheterization was performed, and it showed some disease in the mid-left artery descending and the right circumflex artery. Id. He was discharged in stable condition on November 15, 1996 under the care of Dr. Lawrence Fisher. Id.

2. Dr. Cohen

Dr. Alan B. Cohen evaluated Roos on December 9, 1996. R. 223-24. Roos remained asymptomatic at low levels of activities subsequent to his discharge from Danbury Hospital. R. 223. Dr. Cohen recommended that Roos maintain a low level of activity and take a stress test in two to three weeks. R. 224.

Roos took a thallium stress test on December 16, 1996, which showed a severe fixed anterior and apical wall defect with dilated left ventricle. R. 222. After an office visit on January 13, 1997, Dr. Cohen prescribed Zocor and advised Roos to enter a rehabilitation program and continue taking Lopressor and "ASA." Id. One that visit, Roos had complained of brief atypical chest pains less than 30 seconds in duration and stabbing arm pains. Id. At an office visit on February 10, 1997, Roos reported no recurrent symptoms at all and was waiting to enter an exercise program. R. 218. An echocardiogram revealed low normal overall systolic function with septal and apical hypokinesis only, and Dr. Cohen increased his dosage of Zocor. Id.

3. Dr. Decter

Roos reported upper chest pain lasting 20 to 30 minutes with palpitations at an office visit on April 16, 1997. R. 216. The pain went away five to ten minutes after taking Nitroglycerine, and Roos also reported increased shortness of breath when he exerted himself that was relieved if he rested when walking. Id. Dr. Bruce Decter, who evaluated him on this visit, noted that the EKG showed sinus rhythm and anterior septal wall myocardial infarction of indeterminate age. Id. He recommended a stress test to evaluate the atypical chest pain. Id. On April 18, 1997, Roos took a stress test, which Dr. Decter concluded showed evidence of myocardial ischemia. R. 215.*fn2 In addition, on April 21, 1997, Dr. Decter concluded that a myocardial perfusion imaging report was consistent with an anterior and apical wall myocardial infarction with no evidence for exercise-induced myocardial ischemia. R. 214.

4. Dr. Roth and Good Samaritan Hospital

Dr. Richard Roth evaluated Roos on May 30, 1997 as part of the continued management of his coronary artery disease. R. 197-99. Roos came to see Dr. Roth after feeling lightheaded.

R. 197. Roos said he had done well after being discharged from Danbury Hospital but had vague chest discomfort unlike the previous chest discomfort. Id. Dr. Roth noted that an EKG revealed a sinus rhythm with evidence of prior anterior wall infarction. R. 198. He diagnosed Roos with coronary artery disease status post anteroapical infarct and hyperlipidemia*fn3 and decreased his dosage of Toprol to address the lightheadedness. Id. On June 11, 1997, Roos complained of continued chest pain on occasion not related to a change in medication or activity, and on June 23, 1997, Roos called Dr. Roth and complained of lightheadedness, nausea and chest pain. R. 211. Dr. Roth advised him to stop taking Zocor and to call to report any symptoms. Id.

Roos was admitted to Good Samaritan Hospital on July 5, 1997 with complaints of chest pain on his left side that was sharp in nature without radiation. R. 346. He was diagnosed with unstable angina with progression of symptoms over the past few weeks, and the angina continued despite increased doses of Lopressor and Acupril. R. 347. Catheterization showed moderate LV dysfunction with anterior and apical wall akinesis, 3 vessel disease with moderate lesions noted in the proximal left anterior descending artery of approximately 50-60% stenosis, a critical lesion of the mid-left circumflex of approximately 95% stenosis and multiple non-critical lesions in the right coronary artery of approximately 40-50% stenosis. R. 348. Thus, the discharging physician, Dr. L. Root, decided to transfer Roos to Columbia-Presbyterian Hospital Center for percutaneous transluminal coronary angioplasty ("PTCA") on the left circumflex artery. Id.*fn4 The PTCA and insertion of a coronary artery stent were performed on July 11, 2007 at Columbia-Presbyterian. R. 296.

On August 27, 1997, Dr. Roth noted that Roos was taken off Norvasc, and that his chest pain had returned one week ago. R. 205. Roos reported that he was depressed, had fits of crying, and was "afraid to be alone." Id. Dr. Roth diagnosed him with coronary artery disease status-post anterior myocardial infarction, depression and hyperlipidemia, and he prescribed Prozac. Id. In a letter dated September 16, 1997, Dr. Roth stated that Roos relies on his wife to drive him to appointments and care for him because of his lightheadedness, weakness, chest pain and nausea. R. 807. Roos had begun a cardiac rehabilitation program that met three times per week. Id.

Roos complained again of chest pain without activity or exertion to Dr. Roth on December 17, 1997. R. 882. Dr. Roth diagnosed Roos with coronary artery disease status-post myocardial infarction and stenting, and gastroesophageal reflux disease. Id. In a letter dated January 6, 1998, Dr. Roth stated that, "[g]iven the patients premature coronary disease and persistent chest pain, I would consider the patient partially disabled." R. 286. On April 28, 1998, Dr. Roth noted that Roos had seen a psychiatrist who prescribed him Paxil. R. 883. At that time Roos complained of lightheadedness, headaches and occasional left arm pain. Id. A stress test evaluated by Dr. Root on July 13, 1998 was negative for ischemic symptoms of angina and borderline positive for ischemic EKG changes in the inferolateral distribution. R. 849-50. Dr. Root noted a blunted heart response to exercise and above-average functional capacity. Id.

Dr. Roth saw Roos again on January 3, 2001 and noted he was taking Lipitor and Prevacid. R. 82. Dr. Roth diagnosed Roos with coronary artery disease, status post anterior wall infarct--November 1996; status post PTCA of the circumflex--July 1997; elevated lipids; and mild to moderate liver dysfunction. Id.

Roos reported chest pain while climbing up stairs to Dr. Roth on December 8, 2003, but his diagnosis and medications did not change. See R. 978.

5. Dr. Zucker

Dr. Albert Zucker, who had treated Roos on a monthly basis since May 11, 1997, completed a residual functional capacity evaluation form on September 3, 1997. R. 232-36. He diagnosed Roos with coronary artery disease, hypocholesterolemia, anxiety and atypical chest pain syndrome. R. 232. He noted that Roos's symptoms included dizziness, weakness and occasional chest pain, and that Roos discontinued medications when he thought they contributed to his dizziness and weakness and was currently only taking aspirin. R. 232-33. Dr. Zucker also noted that Roos had anxiety and was preoccupied with his medications and their side effects. Id. An exercise test revealed peri-infarct ischemia and a decreased ejection fraction. R. 234. Dr. Zucker noted that Roos's physical activity was limited because of chest pain; that his ability to lift or carry was limited; that his ability to stand or walk was limited to two hours per day; that his ability to sit was limited to eight hours per day; and that his ability to push or pull was limited. R. 235. Dr. Zucker did not further elaborate. Id.

In a narrative dated April 7, 1998, Dr. Zucker noted that he was not sure what part of Roos's disability was due to his heart problems and what part was due to his "cardiac anxiety," but these conditions prevented Roos from being employable. R. 495-96. Dr. Zucker concluded that control of cardiac risk factors and psychotherapy might allow Roos to attain a higher level of functioning. R. 496. On October 7, 1998, Dr. Zucker completed a Cardiac Residual Functional Capacity Assessment in which he diagnosed Roos as status-post myocardial infarction and listed his symptoms as shortness of breath, fatigue, weakness and dizziness. R. 517. He noted that Roos had no clear anginal pain. Id. He also noted that emotional stress worsened his symptoms; that Roos had chronic anxiety since his heart attack, which extremely limited his activity; and that he should avoid all but low stress situations. R. 518. Dr. Zucker concluded that Roos was "mildly limited" by his heart condition and "severely limited" by his anxiety. R. 519.

6. Dr. Ferro

Dr. John A. Ferro evaluated Roos based on a referral from Dr. Zucker. R. 270-72. Roos complained of being "foggy," and said he becomes fatigued and nauseous when he exerts himself too much, such as when playing golf. R. 270. Roos also complained of anxiety in his chest and interrupted sleep patterns. Id. Dr. Ferro recommended an MRI and an EEG. R. 271. He also recommended an endocrine work-up because endocrine problems can cause a "foggy" sensation. Id. On a follow-up visit on November 20, 1997, Dr. Ferro noted that the results of the MRI were most likely of no significance, and that the EEG was borderline abnormal and should be followed up with another EEG. R. 284.

D. Records Related to Roos's Psychiatric Condition

We now summarize the written records relating to Roos's psychiatric condition.

1. Dr. Gordon

Dr. Paul L. Gordon first saw Roos on December 23, 1997 on a referral from Roos's therapist, Nora Szalavitz. R. 784. Roos reported becoming depressed in July 1997 because of a fear of being alone, and he reported waking up crying two nights previously afraid his wife would leave him. Id. Roos had been prescribed Prozac but had stopped taking it after one week because of the side effects. Id. Roos wanted to continue taking St. John's Wort, and Dr. Gordon prescribed Vistaril. Id. Dr. Gordon noted that Roos's affect and mood were down and anxious and diagnosed him with Anxiety Disorder Not Otherwise Specified ("NOS"), Depressive Disorder NOS and Rule Out Agoraphobia. R. 783. On January 20, 1998, Roos reported feeling anxious and down, and Dr. Gordon prescribed Zoloft and Buspar and stopped Vistaril. R. 782. On February 17, 1998, Roos reported feeling better but still anxious. Id.

In a letter dated March 17, 1998, Dr. Gordon indicated that Roos was diagnosed with Anxiety Disorder NOS and Depressive Disorder NOS, that he was prescribed Zoloft for depression and Buspar for anxiety, and that his prognosis was fair. R. 512. In a Mental Residual Functional Capacity Assessment also completed on March 17, Dr. Gordon noted that Roos was markedly limited in the ability to understand, remember and carry out detailed instructions; the ability to maintain attention and concentration for extended periods; the ability to perform activities within and maintain a schedule; the ability to complete a workweek without interruption from psychologically-based symptoms; the ability to accept criticism from supervisors and to respond appropriately; the ability to respond ...


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