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Sullivan v. Astrue

May 12, 2009

SHAWN T. SULLIVAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

Siragusa, J.

Before the Court is the Commissioner's motion (Docket No. 4) for judgment on the pleadings, as well as a cross-motion (Docket No. 7) by Plaintiff Shawn T. Sullivan ("Plaintiff"), also seeking judgment pursuant to Federal Rule of Civil Procedure 12(c). At issue is the Commissioner's decision which found that Plaintiff had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels, but with two nonexertional limitations: sufficient attention and concentration to under- stand, remember and follow simple instructions; and limited to occasional interaction with the general public and occasional interaction with coworkers. (Record, at 16.) The Commissioner denied Plaintiff's application for disability and supplemental security benefits. For the reasons stated below, Plaintiff's application is denied, and the Commissioner's motion is granted.

BACKGROUND

Procedural Background

Plaintiff filed applications on April 11, 2005, for both disability and disability insurance benefits, as well as supplemental security income. In both applications, Plaintiff alleged that his disability began on April 30, 2003. The claims were denied initially on August 10, 2005. On September 6, 2005, Plaintiff requested a hearing, and a hearing was held before Administrative Law Judge ("ALJ") John P. Costello on February 11, 2008. On March 21, 2008, the ALJ issued a decision denying Plaintiff's claim. Then on June 10, 2008, the Appeals Council denied Plaintiff's request for review. Subsequently, on August 8, 2008, Plaintiff filed this action.

Education and Work History

Plaintiff was born on November 23, 1985. (Record, at 66.) He graduated from Victor High School, spent some time at the Honeoye Falls-Lima BOCES Forman Center, and had an Individualized Education Program ("IED"). (Record at 84, 299-300, 316-17.) He attended community college for about a week. (Record, at 304.) He had a number of part time jobs, but none amounted to substantial gainful activity. (Record, at 21.)

Medical Records

Plaintiff received treatment from five physicians: Julie Lenhard, M.D.; Mohsen Emani M.D.; Aaron Satloff, M.D.; Vincent Fasanello, M.D.; and Paul Howes, M.D.

Dr. Howes treated Plaintiff from March 18, 2002 until October 13, 2003. (Record, at 126.) In his response to an information request, Dr. Howes wrote:

Mr. Sullivan treated for Bipolar II Mood Disorder with related and serious substance abuse issues. Mr. Sullivan was moderately invested in therapy, struggled with impulsive decisions and poor choices, all under the influence of abusive substances.

No contact in plus 1.5 years, no current info available. (Record, at 126.)

Doctor Emami, a psychiatrist, in a letter dated December 17, 2004, stated: that he had cared for Plaintiff since March 2003 after referral by his pediatrician, Dr. Lenhard, and his psychologist, Dr. Howes; that he treated Plaintiff for symptoms of ADHD, mood disorder NOS, particularly experiencing racing thoughts and mood swings, and also substance abuse disorder, particularly cannabis, alcohol and Robitussin; and that he treated plaintiff with a combination of Zoloft 50 mg. at bed time, Trileptal 600 mg. twice a day and Seroquel 75 mg. at bed time. Doctor Emami also wrote that his last appointment with Plaintiff was on October 12, 2004, "at which time he showed no sedation or tiredness and was without any abnormal movements, and his overall mood was stable." (Record, at 136.) Dr. Emami further stated that, in his opinion, plaintiff had benefited from psychotropic medications, "particularly in regard to mood stability and anger management, but his substance abuse has remained a problem and needs further attention. [Plaintiff] has been quite ambivalent regarding seeking rehab and treatment in this regard." (Id.)

The Record contains a letter dated March 3, 2005, from Jo Ann Langer, LMSW, Substance Abuse Counselor. (Record, at 201-02.) Ms. Langer diagnosed Plaintiff with having a dependence on alcohol, cough syrup, cannabis and nicotine, and recommended intensive outpatient treatment. (Id., at 202.) In a contemporaneous Comprehensive Psychosocial Evaluation Summary (Record, at 203-08), Barbara S. Bayley, BA, CASAC, Substance Abuse Counselor, noted that Plaintiff reported a long history of alcohol use, starting at age 13 in 1998. (Id., at 204.) He also reported that he "began to drink over-the-counter cough syrup at age 16 in 2001 when he was depressed. He stated it was the only thing that made him feel better and was his preferred drug." (Record, at 204.) Plaintiff also reported using marijuana up to within a month of the evaluation, but a drug test showed he was positive for THC, the byproduct of marijuana use. (Id., at 205.)

Dr. Satloff, a second psychiatrist, prepared a report after a preliminary examination of Plaintiff who had been referred to him for a psychiatric evaluation by Dr. Lenhard after Dr. Emani retired. (Record, at 144.) In his February 2, 2005, evaluative report, Dr. Satloff wrote that Plaintiff had bipolar disorder, serious depression in the 10th grade (at which time he was drinking heavily, smoking pot, and abusing cough syrup) and depression that lasted for many weeks. At the time of the February examination, plaintiff reported to Dr. Satloff that he had graduated from high school the previous year and was training to pursue a career as a professional wrestler. Dr. Satloff wrote, "[u]nfortunately, however, he smokes 2/3 of a pack of cigarettes a day, drinks alcohol occasionally, and occasionally uses marijuana." (Record, at 144.) Dr. Satloff also reported that Plaintiff had attention deficit hyperactivity disorder and was taking "Adderall XR and amphetamine salts to supplement the Adderall when it wears off later in the day." (Id.) in his assessment, as to diagnosis Dr. Satloff wrote Bipolar II Disorder and Attention Deficit Hyperactivity Disorder. (Id.) in a follow-up visit sometime in 2005 (the photocopy of the medical record included in the Commissioner's certified record of proceedings, cuts off the exact month and day), Dr. Satloff wrote that Plaintiff reported a significant improvement as a result of medication changes that were made at the time of the initial visit and that, "[w]hen seen today, his mood was much better in terms of his affect. He is eager to get into VESID and needs to complete a chemical dependency evaluation to qualify. When seen today he also worked well in his therapy and reported full compliance with his meds. He hasn't been sleeping because of a toothache, but he will be seeing his dentist later today." (Record, at 142.) In another follow-up visit, this one on April 26, 2005, Dr. Satloff wrote, "Pt. Reports that he's continued to do well. When seen today, his mood was euthymic*fn1 and he informs me that he works out regularly." (Id.)

On May 3, 2005, Dr. Lenhard filled out A New York State Office of Temporary and Disability Assistance, Division of Disability Determinations form in which she indicated Treating Diagnoses for Plaintiff as follows: "Bipolar, ADHD, allergies, mild asthma." (Re-cord, at 145.) She wrote that his current symptoms included distractibility, impulsivity, depression and mood regulation issues. After listing the medications that he was taking (Adderall, Seroquel, Trileptal and Zoloft), she answered the question, "[p]lease indicate the expected duration and prognosis of the claimant's condition," with one word: "life- time." Asked to list the history of her diagnoses, she wrote: "ADHD 3/98, Depression 3/02, Bipolar 2004." Next to the ADHD and depression entries, she wrote. "School impairment." (Record, at 146.) She further reported that per Plaintiff's mother, Plaintiff experiences severe fatigue once per month for two days at a time-"sleeps all day." (Id., at 147). Dr. Lenhard also wrote that his depression was primary to the fatigue. She further indicated, "[b]ased on the medical findings provided in my report, my medical opinion regarding this individual's ability to do work-related physical activities is as follows: full activities." (Id.) She listed no physical limitations and indicated no other conditions significant to recovery. (Id., at 148.)

Dr. Satloff's records starting on May 3, 2005, sent to the ALJ on October 18, 2007, contain the following:

June 21, 2005. Pt. Continues to do well. Mood is euthymic [with] good energy level. He has his first match on Saturday, and he is anxious about this. Clinically, I am pleased [with] his progress.

August 23, 2005.[Per] consultation [with] PCP, Adderall was reduced to 30 mg. OD. He will be seen to PCP later today and she will be sending me all the most relevant findings. Pt. Continues to work out regularly, which provides a lot of satisfaction for him. Today [Plaintiff] was a much more active participant in his therapy and his mood was euthymic.

October 24, 2005. Pt. Now taking 60 mg. Of Adderall XR and an occasional 5 mg. Regular Adderall tab (prescribed by Dr. Lenhard). His BP is "normal." When seen today, [Plaintiff] was in a euthymic mood [] with good participation in therapy. He is very diligent about medication compliance. (Record, at 196.) The last entry is dated December 26, 2005, noting a failed appointment letter was sent. (Id.)

In a letter to the ALJ dated October 20, 2007, Dr. Lenhard wrote that, since May 4, 2005, she had seen Plaintiff six times and only once for his mental illness diagnoses.

She further stated that plaintiff was working with Dr. Satloff regarding his bipolar disorder. (Record, at 210.)

On November 2, 2007, Dr. Fasanello, a clinical instructor in psychiatry and private practitioner, who Plaintiff had started seeing on December 9, 2005, completed a Mental Impairment Questionnaire (Listings). He provided a DSM-IV multi-axial evaluation as follows:

Axis I: II Bipolar disorder depressed.

Axis II: personality disorder NOS.

Axis III: deferred.

Axis IV: severe.

Axis V: current GAF: severe.

Highest GAF past year: 48. (Record, at 242.) In this section for "treatment and response," Dr. Fasanello wrote, "poor, seems to have chronic and persistent mental illness." (Id.) He listed Plaintiff's prognosis as poor to fair. On the remainder of the report, he indicated with check marks Plaintiff's signs and symptoms: anhedonia or pervasive loss of interest in almost all activities; appetite disturbance with weight change; decreased energy; impairment in impulse control; mood disturbance; difficulty thinking or concentrating; hyperactivity; motor tension; deeply ingrained, maladaptive patterns of behavior; pathological dependence, passivity or agressivity; emotional withdrawal or a solution; bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized by either or both syndromes); easy distractibility; autonomic hyperactivity; oddities of thought, perception, speech or behavi-or; and involvement in activities that have a high probability of painful consequences which are not recognized. (Record, at 242-43.)

Dr. Fasanello also identified the following functional limitations: moderate restriction of activities of daily living; marked difficulties in maintaining social functioning; marked deficiencies of concentration, persistence or pace; and one or two repeated episodes of decompensation within a 12 month period, each of at least two weeks duration. He further indicated that Plaintiff had a medically documented history of a chronic organic mental, schizophrenic, or affective disorder of at least two years' duration that has caused more than a minimal limitation of ability to do any basic work activity, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following: a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to be compensate. Finally, he indicated that on average, he anticipated that Plaintiff's impairments or treatment would cause him to be absent from work more than four days per month, that his impairment had lasted or could be expected to last at least 12 months and that it would still be disabling if Plaintiff did not use drugs or alcohol. (Record, at 244.) The remainder of Dr. Fasanello's records are hand-written and difficult to read. In his papers, Plaintiff has provided*fn2 a synopsis of them as follows:

01/02/2006 "Had only be [sic] sleeping 2 hours a night.pt [patient] seems to have some attention and ...


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