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Weatherby v. Commissioner of Social Security

September 3, 2008




A. Procedural History

Plaintiff Harry Weatherby ("Plaintiff") filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") on March 5, 2004. Administrative Transcript ("AT") 41-43, 178-80. The applications were denied initially. AT 31-35, 181. A request was made for a hearing. AT 37. A hearing was held before an Administrative Law Judge ("ALJ") on November 16, 2004. AT 186-234. In a decision dated January 21, 2005, the ALJ found that Plaintiff is not disabled. AT 16-27. The Appeals Council denied Plaintiff's request for review on October 19, 2005. AT 4-7. Plaintiff commenced this action on December 7, 2005 pursuant to 42 U.S.C. § 405(g), seeking review of the Commissioner's final decision. Dkt. No. 1.

B. Contentions

Plaintiff makes the following claims:*fn1

(1) The Commissioner erred in finding that neither of Plaintiff's severe impairments, either alone, or in combination, meet or equal the level of severity of any listed impairment. Dkt. No. 7 at 9-10.

(2) The Commissioner erred in failing to accord the opinion of the treating physician controlling weight. Dkt. No. 7 at 10-11.

(3) The Commissioner incorrectly found that Plaintiff was capable of meeting the exertional demands of sedentary work. Dkt. No. 7 at 10-11.

(4) The Commissioner did not make a proper credibility determination regarding Plaintiff's statements of disabling pain and daily physical and mental limitations. Dkt. No. 7 at 12-13.

(5) The Commissioner's determination that Plaintiff is "not disabled" at Step Five in the sequential analysis must be reversed as it is not supported by substantial evidence in the record. Dkt. No. 7 at 13-14.

Defendant argues that the Commissioner's determination is supported by substantial evidence in the record, and must be affirmed. Dkt. No. 12.

C. Facts

Plaintiff was forty-two years old at the time of the hearing. AT 189. Plaintiff has an associates degree in advanced paralegal studies. Id. Plaintiff's past work experience includes working as a building superintendent and maintenance worker at apartment complexes, a paralegal, and as a supervisor in "human services." AT 190-95. Plaintiff alleges that he became unable to work on November 1, 2003. AT 41. Plaintiff alleges disability due to depression, alcoholism, epilepsy, degenerative disc disease, and herniated discs. AT 60.

1. Physical Condition

Plaintiff apparently injured his lower back in October of 2003 when he lifted trash cans and in November of 2003 when he lifted bags of sand. AT 131, 168.

a. Matthew Zmurko, M.D.

From November 6, 2003 to August 11, 2004, Plaintiff treated with Matthew Zmurko, M.D., an orthopaedist. AT 119-27, 163-73. Dr. Zmurko stated that Plaintiff described his pain as occurring in his low back and progressing down his left leg. AT 125. An MRI of Plaintiff's lumbar spine showed a broad degenerative disc protrusion at L4-L5, "which had a mass effect on the left L4 and L5 nerve roots and a 6 millimeter retrolisthesis of L5-S1." AT 123. Plaintiff was treated with epidural steroid injections and prescribed physical therapy. AT 121-22.

On March 24, 2004, Dr. Zmurko opined that Plaintiff is unable to perform any form of manual labor and "he would find it difficult[] doing seated work at the present time because of the low back pain." AT 169.

On May 26, 2004, Dr. Zmurko opined that Plaintiff is able to perform activities "as tolerated and he can do light duty work with no lifting greater than [ten pounds]." AT 166.

On August 11, 2004, Plaintiff returned with complaints of chronic low back pain. AT 163. Dr. Zmurko noted that Plaintiff had received several epidural steroid injections which provided "no significant relief." Id. Dr. Zmurko suggested that Plaintiff try a lumbosacral corset and referred Plaintiff to a pain management specialist. Id. Dr. Zmurko rated Plaintiff at a "partial moderate disability" level and recommended that Plaintiff continue with the same restrictions, meaning "light duty" and no lifting greater than ten pounds. Id.

b. John Sullivan, R.P.A.

On November 10, 2003, Plaintiff saw John Sullivan, R.P.A. ("P.A. Sullivan") at Capital Area Medical Group. AT 107. P.A. Sullivan noted that Plaintiff was "obviously having problems walking and bending." Id. Plaintiff exhibited tenderness in the low back and a positive straight leg raise test, "especially on the left side." Id. P.A. Sullivan diagnosed Plaintiff as suffering from back pain that was "probably disc disease." Id.

c. Amelita Balagtas, M.D.

On April 19, 2004, Plaintiff underwent an orthopedic evaluation at the request of the agency by Amelita Balagtas, M.D. AT 131-33. During the examination, Plaintiff exhibited some limited mobility in his thoracic and lumbar areas. AT 132. Dr. Balagtas diagnosed Plaintiff as suffering from low back pain. AT 133. She opined that Plaintiff "would have some limitations in activities that require bending, lifting, prolonged sitting, standing and walking." Id.

2. Mental Condition

a. Samaritan Hospital

On January 14, 2002, Plaintiff was admitted to Samaritan Hospital after attempting to commit suicide. AT 105-06. He experienced a seizure while in the emergency room due to overdosing on medication. AT 104-05. It was noted that Plaintiff has a history of depression, alcohol abuse, and seizures. Id. He was diagnosed as suffering from depressive disorder not otherwise specified and alcohol dependence. AT 106. It was noted that Plaintiff was concerned with, inter alia , his financial situation. Id. Plaintiff was discharged on January 18, 2002. AT 89. His score on the Global Assessment of Functioning ("GAF") was sixty.*fn2 Id.

On January 27, 2004, Plaintiff was evaluated at Samaritan Hospital. AT 111-18. It was noted that Plaintiff was "homeless, jobless, and under financial strain," that he felt like drinking, and that he is suicidal when he drinks. AT 113, 117. Plaintiff was diagnosed as suffering from alcohol dependence in full remission, depressive disorder, narcissistic traits, and anti-social personality disorder. AT 118. He was assigned a GAF score of fifty. Id.

b. Gregory Miller, M.D.

On March 4, 2002, Plaintiff was evaluated by Gregory Miller, M.D., Staff Psychiatrist at Rensselaer County Department of Mental Health Unified Services. AT 128-30. It was noted that Plaintiff had a history of depression, multiple suicide attempts, ongoing alcohol use, and seizures. AT 128. Dr. Miller noted that it was "entirely unclear" if Plaintiff's depressive symptoms "could be treated separately from his alcohol dependence and his continue use of substances. In fact, it is his substance abuse which has wrecked havoc in his life." AT 130. Dr. Miller diagnosed Plaintiff as suffering ...

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