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Rutkowski v. Astrue

July 23, 2009


The opinion of the court was delivered by: Thomas J. McAvoy, Sr. U.S. District Judge


Mark Rutkowski ("Plaintiff") brought this action pursuant to 42 U.S.C. § 1383(c)(3) to review a final determination of the Commissioner of Social Security ("the Commissioner") denying Plaintiff's application for Supplemental Security Income benefits ("SSI").


A. Procedural History

Plaintiff filed an application for SSI on September 26, 2003 alleging disability since June 15, 2003. R. at 42.*fn1 On May 3, 2004, Plaintiff's application for SSI was denied. R. at 54. The following month, Plaintiff made a timely request for a hearing before an Administrative Law Judge ("ALJ"). R. at 57.

On March 10, 2005, Plaintiff received a hearing in Plattsburgh, NY before ALJ Thomas P. Zolezzi. R. at 60-62. An additional hearing was held on August 19, 2005. R. at 42. After performing a de novo review of Plaintiff's disability claim, ALJ Zolezzi issued a decision on September 15, 2005 finding that Plaintiff suffered from severe musculoskeletal and mental impairments, but that such impairments did not preclude him from performing work which existed in significant numbers in the national economy. R. at 45-48. The ALJ therefore concluded that Plaintiff did not suffer from a disability as defined in the Social Security Act ("the Act"), and was not eligible for SSI. R. at 48-49.

Plaintiff made a timely request to the Appeals Council for review of the ALJ's decision. On July 25, 2007, the Appeals Council denied Plaintiff's request for review. R at 12. The Appeals Council subsequently set aside their initial denial to "consider additional information." R. at 3. On August 31, 2007, the Appeals Council reinstated the initial denial of Plaintiff's request for review, thereby making the ALJ's ruling the Commissioner's final decision regarding Plaintiff's disability claim. Id. Plaintiff now seeks review of the Commissioner's final decision.

B. Educational and Vocational History

Plaintiff was born on May 6, 1958. R. at 319. He completed schooling through the 11th grade, and received his GED in 1978. R. at 103, 207. Plaintiff also attended one year of college. R. at 321. Between 1990 and 2003, Plaintiff worked as a chef, painter, construction worker and caretaker. R. at 98.

C. Medical History

1. Spine Injury

On June 15, 2003, Plaintiff fell from a second story window and suffered an L1 vertebral body burst fracture, bilateral transverse process fractures of vertebral body L2 and 50% canal encroachment by a retropulsed bone fragment. R. at 139, 155. On June 17, 2003, Plaintiff was admitted to Fletcher Allen Health Care and underwent surgical stabilization by Dr. Martin Krag, an orthopedic surgeon. R. at 139-40. Dr. Krag noted in his post-operative report that Plaintiff underwent L1-2 and T12-L1 posterolateral arthrodesis, internal fixation T12-L1-L2, harvesting of left iliac crest bone grafts and placement of absorbable interposition plate and screws on the left iliac crest. Id. On July 14, 2003, Plaintiff was discharged from Fletcher Allen in stable condition. R. at 162-64. At the time of his discharge, Plaintiff was prescribed the following medications: methocarbamol, acetaminophen and hydromorphene. R. at 163. Plaintiff was instructed to wear a brace when he was not in bed. Id.

Plaintiff visited Dr. Krag for a post-surgical evaluation on July 21, 2003. R. at 138. Dr. Krag reported that Plaintiff was making satisfactory progress but was still "quite uncomfortable" due to back pain. Id. Dr. Krag prescribed physical therapy as scheduled, continuation of the use of a brace and continued a 25 pound lifting limit. Id.

On September 27, 2003, Plaintiff fell down some stairs and was taken to the Champlain Valley Physician's Hospital ("CVPH") emergency room complaining of sharp back pain. R. at 171. Plaintiff was given Morphine and Percocet and was discharged. R. at 172.

Dr. Krag performed a second and final post-operative evaluation of Plaintiff on November 10, 2003. R. at 183-84. He reported that Plaintiff was making good progress and was functioning at a reasonably high level. R. at 183. Dr. Krag further noted that Plaintiff's injury site discomfort was gradually decreasing and Plaintiff had no local tenderness at the incision site. Id. Plaintiff's fracture was maintaining its alignment and the fixation hardware was found to be intact. Id. A radiology report from the same day showed progressive but incomplete healing of the L1 compression fracture deformity. R. at 141. Dr. Krag reported that Plaintiff was using Methadone two to three times per day, but was also using a fair amount of alcohol. R. at 183. Plaintiff's fracture was found to be sufficiently strong that his brace was no longer needed for safety, but Dr. Krag noted that he may find it more comfortable to continue using the brace "for the next few days or weeks." Id. Dr. Krag reported that Plaintiff should maintain his lifting limitation at 50 pounds for six months, but that no lifting limitations would apply after "one year from his injury date." Id. At Plaintiff's request, Dr. Krag wrote Plaintiff a prescription for physical therapy, including pool therapy, for recondition of his trunk and legs. Id. As Plaintiff's fracture was healing well, Dr. Krag noted that further follow-up examinations would be of little use. Id.

On January 12, 2004, Plaintiff was evaluated by physical therapist Mark Hummel. R. at 286-88. Plaintiff reported improvement in the numbness in his left buttocks and lower back region and his primary complaint was pain in his left leg. R. at 286. Plaintiff rated his pain at the time of his evaluation as zero out of 10 on a visual analog pain scale, but noted that it reached eight out of 10 on severe days. Id. Mr. Hummel recommended that Plaintiff undergo physical therapy treatment one to two times per week for a four week period. R. at 288.

Mr. Hummel evaluated Plaintiff again on March 31, 2004. R. at 282-84. During this second evaluation, Plaintiff complained of pain on both sides of his lower back (greater on left side) and occasional pain in the left buttocks and back of the left thigh. R. at 281. Plaintiff also described numbness down his left leg and thigh. Id. Furthermore, Plaintiff complained of increased lower back pain when bending over or sitting for prolonged periods of time. Id. Plaintiff described normal pain severity as four out of 10 on a visual analog pain scale, but noted that it reached seven out of 10 on severe days. Id. Mr. Hummel recommended that Plaintiff undergo further physical therapy treatment one to two times per week for a period of four to six weeks. Id. On June 9, 2004, Mr. Hummel notified Dr. Sherman that Plaintiff was being discharged as an active patient because he had failed to appear for his last two scheduled physical therapy sessions. R. at 279.

2. Alcohol Rehabilitation

On January 30, 2004, Plaintiff was admitted to Conifer Park for an alcohol rehabilitation program. R. at 186. During Plaintiff's initial assessment, Stephen J. Sivack, CASAC, noted that Plaintiff had a chronic drinking problem, that he denied any present or past suicidal ideation and that he had not received any past psychiatric evaluation or treatment. Id. Stephen Sivack also noted that Plaintiff's combining alcohol with Methadone and Percocet had caused him "immense problems."

Id. While at Conifer Park, Plaintiff was under medical supervision for pain management. R. at 187. Mr. Sivack reported that water therapy in a whirlpool was particularly useful in reducing Plaintiff's level of pain. Id. Plaintiff's prognosis at the completion of rehabilitation was fair to good and it was recommended that he attend four to seven AA/NA meetings per week, meet with a counselor at St. Joseph's Outpatient Counseling and see Dr. Sherman for physical therapy. R. at 188. Plaintiff was discharged from Conifer Park on February 27, 2004. R. at 189.

3. Treating Source Report

On March 29, 2004, Dr. Sherman, Plaintiff's primary care physician, completed a New York State Office of Temporary and Disability Assistance questionnaire detailing Plaintiff's ability to perform work related activities on a day-to-day basis. R. at 200-04. Dr. Sherman reported that Plaintiff suffered persistent muscle spasms of the paralumbars, but that he had no reflex deficits. R. at 201. Dr. Sherman also reported that Plaintiff had full range of motion in his shoulder, elbow, wrist, knee and ankle while the range of motion of his hip and spine were reduced to 75% and 10-25% respectively. R. at 202. He noted that Plaintiff utilized a cane and a lumbar support brace and had an antalgic gait and reduced swing. Id. Furthermore, Dr. Sherman reported that Plaintiff's ability to lift and carry weight was reduced to 20 pounds occasionally and 10 pounds frequently. R. at 203. Dr. Sherman found that Plaintiff's ability to stand, walk and/or sit was limited to six hours per day, and that persistent postural repetition severely increased Plaintiff's lumbar pain. R. at 203.

Dr. Sherman also submitted his progress notes for Plaintiff at the request of the Commissioner. R. at 253-67. In a progress report dated October 22, 2004, Dr. Sherman noted that Plaintiff "remain[ed] quite mobile and functional with current pain management." R. at 254. Dr. Sherman continued that Plaintiff had attempted to self-wean, but found his pain debilitating. Id. Dr. Sherman added that Plaintiff was successfully care-taking a "severely disabled paramour." Id.

The remaining progress notes are undated. In one undated progress report, Dr. Sherman noted that Plaintiff had a necessary level of mobility with no untoward side effects and would recommence substance counseling after the New Year. R. at 253. In another undated report, which made reference to the September 15, 2004 disability paperwork, Dr. Sherman noted that Plaintiff reported a pain level of "7-8," which increased with ambulation. R. at 256. Another undated report noted that Plaintiff had become "much more active" and was "much more" able to perform daily activities. R. at 257. This report also noted that Plaintiff's back pain had increased and that he displayed decent range of motion despite significant and permanent loss of flexion and extension. Id. In another undated report, Dr. Sherman noted that Plaintiff felt his recovery was progressing, but the Methadone he was taking for pain management was causing issues with his train of thought, and Plaintiff felt frustrated by his limitations. R. at 261. This report also noted that Plaintiff demonstrated an appropriate range of motion and that his deep tendon reflexes were good. Id. In yet another undated report, Dr. Sherman noted that Plaintiff had increased range of motion with some ability to twist, and that flexion, extension and side bending were limited, but apparent. R. at 265.

4. Consultative Examination Reports

i. Brett T. Hartman, Psy.D.

On April 16, 2004, Plaintiff attended a consultative psychiatric evaluation with Psychologist Brett T. Hartman. R. at 208-12. Plaintiff informed Dr. Hartman that he was suffering from mild symptoms of depression. R. at 208-09. In assessing Plaintiff's attention and concentration, Dr. Hartman found that Plaintiff could count without difficulty and performed "fairly well with the calculations and serial threes." R. at 209. Dr. Hartman reported that Plaintiff's recent and remote memory skills were generally intact, his cognitive functioning was average, his insight was fair and his judgment was fair to poor given his history of legal issues and substance abuse. R. at 210. Dr. Hartman found that Plaintiff was able to follow and understand simple instructions and directions, that he had fair attention and concentration skills and a fair ability to learn new tasks. R. at 210-11. Furthermore, Dr. Hartman noted that Plaintiff had mild difficulty making appropriate decisions, relating adequately with others, dealing appropriately with the normal stressors of life and that he would likely have some difficulty performing a variety of tasks due to his physical complaints. R. at 211.

ii. Dr. Nader Wassef

On April 16, 2004, Plaintiff also attended a consultative orthopedic examination with Dr. Nader Wassef. R. at 213-16. Dr. Wassef noted that Plaintiff informed him that his walking cane was self-prescribed and was not suggested to him by his primary care physician. R. at 214. Dr. Wassef found that Plaintiff's hand and finger dexterity were intact and that Plaintiff had full range of motion of his shoulders, elbows, forearms, wrists, hips, knees and ankles. R. at 215. Plaintiff was found to have full flexion and extension of his cervical spine and 80% flexion and extension in both his thoracic and lumbar spines. Id. Dr. Wassef also noted that Plaintiff had diffused spinal and paraspinal tenderness in the upper area of the lumbar spine and the lower area of the thoracic spine as well as tenderness in the left iliac crest. Id. Plaintiff's Straight Leg Raise ("SLR") test was negative and Dr. Wassef found no trigger points. Id. Dr. Wassef concluded that Plaintiff had minimal limitations of movement of his lower back in regard to bending and extension. R. at 216. Plaintiff was urged to continue his follow-up visits with Dr. Sherman in order to improve pain management. Id.

5. Non-Examining Physician Report

On April 30, 2004, Dr. Abdul Hameed, a non-examining State Agency medical examiner, reviewed Plaintiff's medical records and completed a Psychiatric Review Technique form and a Mental Residual Functional Capacity Assessment. R. at 218-35. In his Psychiatric Review Technique, Dr. Hameed noted that Plaintiff had suffered no episodes of decompression and determined that he had no limitations on activities of daily living, moderate limitations on social functioning and mild limitations on maintaining concentration, persistence or pace. R. at 228. In his Mental Residual Functional Capacity Assessment, Dr. Hameed opined that Plaintiff was moderately limited in his ability to interact appropriately with the general public, to accept instructions and respond appropriately to criticism from supervisors and to respond ...

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