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Pennay v. Astrue

August 27, 2008


The opinion of the court was delivered by: Scullin, Senior Judge



Currently before the Court are Magistrate Judge Peebles' August 3, 2007 Report and Recommendation and Plaintiff's objections thereto.


Plaintiff filed his application for disability benefits on March 24, 2004, alleging a disability onset date of January 21, 2004. See Tr. at 34-35. Prior to January 2004, Plaintiff was a maintenance employee at Fairview Recovery Services, a substance abuse recovery facility. See id. at 40, 46, 103, 204. At some time around January 2004, Plaintiff voluntarily quit that position after a confrontation with his supervisor concerning Plaintiff's belief that he was being gradually replaced. See id. at 103, 121, 206.

Plaintiff has a documented history of alcohol abuse and psychological difficulties. See id. at 105, 109-26, 145-91. Since 1995, he has abstained from alcohol. See id. at 122-23. He has received periodic mental health treatment, mainly from Dr. Mokarram Jafri and Pat Pomeroy, who is a Clinical Social Worker ("CSW"). See id. at 104, 109-20, 145-62, 165-91. Between 2000 and September 2004, CSW Pomeroy saw Plaintiff monthly; and Dr. Jafri saw him once every two or three months.

Reports of those visits show that Plaintiff has been diagnosed as suffering from generalized anxiety disorder, subclinical Post-traumatic Stress Disorder ("PTSD"), bipolar disorder, and anger management. See Tr. at 101, 122, 210-11. However, the reports also show that Plaintiff has done well in treatment and that his symptomology has been controlled with medication. See id. Plaintiff's mental condition, by all accounts, has not affected his ability to function and engage in normal daily activities. See id. at 74-81, 208, 214-15. He is able to run errands, attend to household chores, drive, fish and play golf. See id. at 74-81, 124, 208, 214-15.

After Plaintiff's application was denied on initial review, he requested a hearing before an Administrative Law Judge ("ALJ"), which was held on October 5, 2004, before ALJ Brian P. Kilbane. See id. at 20-23, 200-17. On November 30, 2004, the ALJ issued a determination of non-disability based upon his finding that, although Plaintiff suffered from psychological and psychiatric conditions, the record did not sufficiently show that his condition significantly restricted his ability to perform basic work activities. Therefore, the ALJ concluded that Plaintiff did not suffer from a severe impairment. See id. at 11-15. The ALJ's decision became the Commissioner's final determination on April 14, 2005, when the Social Security Administration Appeals Council denied Plaintiff's request for review of the ALJ's decision. See id. at 4-6.

On June 1, 2005, Plaintiff commenced this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of that final decision. Plaintiff objected to the ALJ's findings on several grounds:

(1) the ALJ improperly considered a determination of an agency consultant and evaluated his findings over the opinions of Plaintiff's treating doctor; (2) the ALJ's determination that he was not disabled was not supported by substantial evidence; (3) Plaintiff's mental condition was sufficiently severe to satisfy step two of the five-step evaluative process for examining the issue of disability under the Social Security Act; (4) the ALJ's determination that he did not meet his burden at step two was incorrect; and (5), because the second-step requirement is de minimis, the ALJ should have gone on to step three of the five-step evaluative process. See Report and Recommendation at 13, 17-18.

On August 3, 2007, Magistrate Judge Peebles issued his Report and Recommendation, in which he agreed with the ALJ's findings that Plaintiff did not suffer from a sufficiently severe impairment and was, therefore, not disabled. See id. at 18-21. Magistrate Judge Peebles also found that the ALJ properly applied the treating physician rule. See id. at 15-17. Plaintiff objects to both of these findings. See Plaintiff's Objections at 2-4.


A. Disability Determination

To be considered disabled, a plaintiff seeking disability insurance benefits must establish that he "is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. ยง 1382c(a)(3)(A). In addition, the plaintiff's physical or mental impairment or impairments [must be] of such severity that 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, ...

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