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Wright v. Commissioner of Social Security

September 16, 2008

RANDY J. WRIGHT, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



DECISION AND ORDER

I. BACKGROUND

A. Procedural History

An application for Supplemental Security Income ("SSI") was filed on behalf of Plaintiff Randy J. Wright ("Plaintiff") on April 13, 1984. Administrative Transcript ("AT") 13; see AT 94. The application was denied. See id. A second application for SSI was filed on behalf of Plaintiff on February 13, 1985. AT 82-91, 154-59. On March 29, 1985, Plaintiff was found to be disabled based on the second application and awarded benefits beginning February 13, 1985. AT 92. Thereafter, Plaintiff became a member of the class action Sullivan v. Zebley, 493 U.S. 521 (1990), which eventually resulted in a finding of disability on September 28, 1994 and an award of benefits commencing April 13, 1984. AT 13, 93-101. The basis for disability were diagnoses of mild mental retardation and adjustment disorder with anxious and depressed mood. AT 92, 94-95. On May 13, 2002, Plaintiff's case was reviewed as part of a Continuing Disability Review. AT 102-103. Plaintiff failed to attend consultative examinations in September and October of 2002. AT 109-10, 113. Citing a medical improvement in Plaintiff's condition and Plaintiff's failure to cooperate, a finding was made that Plaintiff's disability ceased on November 12, 2002. AT 121-22.

Plaintiff requested reconsideration of the cessation determination. AT 129-30. Plaintiff was notified that a hearing would be held before a Disability Hearing Officer. AT 131-33. In the interim, Plaintiff attended two consultative examinations on April 30, 2003. AT 136, 304-15. The hearing before the hearing officer was held on July 15, 2003. AT 140, 202-09. On July 25, 2003, the hearing officer issued a decision finding that Plaintiff's condition improved and that Plaintiff is no longer disabled. AT 140-50.

Plaintiff requested a hearing by an Administrative Law Judge ("ALJ"). AT 151-52. The hearing was rescheduled on several occasions. AT 28-41. On April 20, 2005, a hearing was held before ALJ Barry E. Ryan. AT 42-81. On June 21, 2005, the ALJ issued a decision affirming the cessation determination. AT 13-23. The Appeals Council denied Plaintiff's request for review on January 27, 2006. AT 5-8. Plaintiff commenced this action on March 28, 2006 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:

(1) The ALJ's selective use of medical reports is contrary to law. Dkt. No. 10 at 16-19.

(2) Plaintiff's uncooperativeness corroborated the doctors' opinions that his mental illness was severe and required a vocational expert opinion rather than the Medical-Vocational Guidelines used by the ALJ. Dkt. No. 10 at 19-21.

(3) There was no substantial evidence of medical improvement and the ability to work. Dkt. No. 10 at 21-22.

Defendant argues that the Commissioner's determination is supported by substantial evidence in the record, and must be affirmed. Dkt. No. 11.

C. Facts

Evidence prior to September 28, 1994, the date of the earlier agency determination finding that Plaintiff was disabled,*fn1 reveals that Plaintiff's IQ was tested on March 2, 1984. AT 161. Plaintiff achieved a verbal IQ score of sixty-two, a performance IQ score of seventy-one, and a full scale IQ score of sixty-four. AT 161. Plaintiff was classified as "mentally handicapped" and placed in special education classes and a work study program. AT 164. However, Plaintiff reportedly performed poorly in the "BOCES program" and had a poor attitude, put forth minimal effort, and showed an inability to get along well with others. Id.

On February 15, 1985, Plaintiff was treated at United Health Services/Binghamton General Hospital because he made a "suicidal gesture." AT 228. The primary diagnosis was attention-deficit disorder without hyperactivity, residual type. AT 226. The secondary diagnosis was adjustment disorder with an anxious and depressed mood. Id.

On March 19, 1985, Plaintiff was examined by George Primanis, M.D. AT 231-32. Dr. Primanis noted that Plaintiff's intelligence was below normal; attention span and concentration were diminished; and insight and judgment were limited. AT 231. Dr. Primanis diagnosed Plaintiff as suffering from mild mental retardation and "schizoid [personality disorder]." AT 232.

Evidence following the CPD shows that Plaintiff received treatment at various emergency rooms for a dog bite to the left arm (June 22, 2002); asthma (September 17, 2002, April 20, 2003 & June 18, 2003); an injury to his chest (September 26, 2002); left thumb pain (December 27, 2002); shortness of breath (January 14, 2003); and migraine headaches and chest pain (May 30, 2003 & June 11, 2003). AT 233-54, 278-83, 297-303, 340-400. A chest x-ray performed on June 19, 2003 showed atelectasis. AT 396.

From November 15, 2002 to July 24, 2003, Plaintiff treated at United Medical Associates. AT 255-63, 293-96. Plaintiff was treated for bronchitis, asthma, migraine headaches, knee pain, and chest pain. Id. Plaintiff was prescribed various medications, as well as a walking cane for his knee pain and instability. Id.

On April 30, 2003, Plaintiff underwent a psychiatric examination at the request of the agency by Dennis M. Noia, Ph. D. AT 304-07. Dr. Noia noted that Plaintiff reported no history of psychiatric hospitalizations nor psychiatric treatment. AT 304. Dr. Noia found that Plaintiff's intellectual functioning is in the low average range. AT 306. Dr. Noia found that Plaintiff appears to be capable of the following: following, understanding, and remembering simple instructions and directions; performing simple and some complex tasks with supervision and independently; maintaining attention and concentration for tasks; regularly attending to a routine; maintaining a schedule; making appropriate decisions; learning new tasks; relating to and interacting appropriately with others; and dealing with stress. AT 307. Dr. Noia found that the results of the examination do not appear to be consistent with any psychiatric problems that would significantly interfere with Plaintiff's ability to function on a daily basis. Id. Dr. Noia also found that a reading disorder should be ruled out. Id.

On April 30, 2003, Plaintiff also underwent an internal medicine examination at the request of the agency by Kalyani Ganesh, M.D. AT 308-15. Dr. Ganesh diagnosed Plaintiff as suffering from asthma, a history of upper back surgery, migraine headaches, and a learning problem. AT 311. Dr. Ganesh found no gross physical limitation for sitting, standing, walking, climbing, or the use of upper extremities. Id. Spirometry test results were normal. AT 312.

The record contains a Psychiatric Review Technique form completed by M. Apacible, M.D., a State agency review physician, on May 13, 2003. AT 316-29. Dr. Apacible rated Plaintiff's functional limitations under Listing 12.02 (Organic Mental Disorders), finding that Plaintiff has a mild restriction of activities of daily living; mild difficulties in maintaining social functioning; moderate deficiencies in maintaining concentration, persistence or pace; and no repeated episodes of deterioration. AT 326.

Dr. Apacible also completed a Mental RFC assessment. AT 336-39. Dr. Apacible found that Plaintiff is limited moderately in the following abilities: understand and remember detailed instructions; carry out detailed instructions; sustain an ordinary routine without special supervision; accept instructions and respond appropriately to criticism from supervisors; and set realistic goals or make plans independently of others. AT 336-37.

On October 5, 2004, Cynthia Richards, Plaintiff's disability advocate, referred Plaintiff to Randy Specterman, Ph. D. for psychodiagnostic testing. AT 426-31. Testing showed that Plaintiff's verbal IQ score was seventy-one; performance IQ score was seventy-nine; and full scale IQ score was seventy-four. AT 428. Dr. Specterman opined that Plaintiff is functioning well below normal in all domains of intellectual functioning; is in the borderline range of intellectual functioning; and is reading below the third-grade level. AT 428-29, 431. He noted that Plaintiff suffers from depression and anxiety. AT 431. Dr. ...


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