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Audi v. Astrue

September 30, 2009

JEFFREY AUDI, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Plaintiff brought this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), appealing a final decision of the Commissioner of Social Security denying Plaintiff's claim for Social Security benefits. The matter is now before the Court on the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

II. BACKGROUND

Plaintiff filed a claim for Social Security Disability Insurance Benefits (DIB) on August 4, 2004, alleging disability due to depression, panic attacks, anxiety, and bipolar disorder. (See R. 17).*fn1 At issue in the matter is the determination of Administrative Law Judge Carl E. Stephan, based on the evidence presented at the hearing held on June 6, 2006, that Plaintiff's alcoholism was a contributing factor material to the determination of disability and, thus, he is not entitled to DIB. (R. 14-26).

Plaintiff is a college graduate who was thirty-six years old at the time of his alleged onset of disability. (See R. 30, 31, 49, 167). His past relevant work experience included work as a hotel manager from January 1990 to January 1994; an owner/operator of a restaurant from January 1994 to May 1996; an assistant manager at a restaurant from May 1996 to September 1996; a food manager at a college from September 1996 to January 2001; an auditor at a convenience store company from January 2001 to October 2001; and, as a salesperson for a cable television company from October 2001 to February 2003. (R. 161-62). At the hearing, Plaintiff testified that his last job was as a salesperson which required him to go door-to-door soliciting cable services. (R. 32). He claimed that he left that job in February 2003 due to depression and anxiety, id., but he also acknowledged that he had been convicted of driving while intoxication (DWI) four times and had lost his driver's license in January 2003 due to a felony DWI conviction. (R. 30).

In December 2003, Betty Longo, a clinical social worker at the Glens Falls Hospital's Behavioral Health Outpatient Center (the Outpatient Center), evaluated Plaintiff upon referral from the Conifer Park Outpatient Center. (R. 319-21). Plaintiff told Ms. Longo that he was on medical leave from his sales position and had a history of alcoholism. (R. 320). He claimed that he had been sober for about one year, but continued in treatment at Conifer Park with some ongoing symptoms of depression and anxiety. Id. Upon mental status examination, Ms. Longo assessed that: Plaintiff was friendly, pleasant, and interactive; his mood was mildly anxious; he maintained good emotional control throughout the interview; he denied any current suicidal ideation; he had no psychotic features; his insight into his need for ongoing treatment was present; his judgment for everyday living was intact; his immediate and remote memories were grossly intact; and his intellectual functioning was average to above. (R. 320). On the DSM-IV multiaxial scale,*fn2 Ms. Longo assessed on Axis I: "episode major depression, anxiety disorder not otherwise specified (NOS), rule out panic disorder, and alcohol dependence"; on Axis II: "deferred"; on Axis III: "elevated liver functions"; on Axis IV: "loss of driver's license and inability to work"; and, on Axis V, a global assessment of functioning (GAF) score of 50.*fn3

Ms. Longo referred Plaintiff to Dr. Kathleen Orsak, a staff psychiatrist, for a psychiatric evaluation. Id.

On February 3, 2004, Dr. Orsak assessed that Plaintiff was fully oriented and made good eye contact; his speech was normal; his mood was depressed, anhedonic, and scared; his affect was constricted, anxious, and depressed; his intelligence was within the average to above average range; he reported auditory hallucinations; his memory was intact; and his insight and judgment were good. (R. 317-318). On the DSM-IV multiaxial scale, Dr. Orsak assessed "major depression with psychotic features, alcohol dependence, and rule out generalized anxiety disorder" on Axis I; and a GAF score of 45 on Axis V. Id.; see fn. 3, supra.

Plaintiff was admitted to the Mental Health Unit of Glens Falls Hospital (the Inpatient Center) on February 12, 2004, due to suicidal ideation reported by Plaintiff's wife.

(R. 314). Plaintiff made several statements prior to being admitted to the Inpatient Center that were contradicted by other evidence and which the ALJ found negatively impacted upon Plaintiff's credibility. In this regard, Plaintiff told the intake clinician at Glens Falls Hospital, Janice Ganter, that he told his counselor at Conifer Park that he intended to drive his car into a tree but, he asserted, this could not happen because he did not drive. To the contrary, Plaintiff's wife told Ganter that Plaintiff drove on a daily basis. Plaintiff also reported that he had been abstinent from alcohol for 13 months since his felony DWI in January 2003 (R. 314, 315). However, Plaintiff's wife reported that Plaintiff had been regularly driving to, and stopping at, a bar "that he used to hang out at," and that, the night before, Plaintiff came home smelling of alcohol and was disheveled. (R. 314). Plaintiff's wife reported that Plaintiff told her that he had been drinking non-alcoholic beer, but Plaintiff's wife suspected that Plaintiff had relapsed because Plaintiff did not remember coming home and appeared to be in a blackout state. Plaintiff also reported that he had not eaten that day, but his wife reported that he had eaten for breakfast the "sloppy joes" she made for the previous night's dinner. Id. Plaintiff reported a legal history which included four DWI convictions, (R. 315), and he acknowledged that he was serving five years probation for a felony DWI conviction in January 2003. Plaintiff denied a history of violence, but acknowledged that he was in a bar fight the previous night. Plaintiff reported that he worked as a salesperson for one-and-a-half years until his felony DWI conviction, and was, at the time, on long term disability. He reported that he volunteered at a soup kitchen twice per week. Id.

Upon mental status examination, Ms. Ganter observed that Plaintiff was minimizing and manipulative. (R. 315, 316). Plaintiff was very guarded and agitated throughout the interview, especially when confronted with the contradictions between his story and his wife's story. Id. He made poor eye contact and at some points appeared to be staring out into space. (R. 316). His mood was depressed, scared, and anxious. Plaintiff's affect was constricted. He was suicidal with plan, intent, and means to drive his car into a tree. His thought processes were tangential and ruminative with some thought blocking. He was paranoid and reported auditory hallucinations. Plaintiff's intelligence was average. His judgment and insight were grossly impaired. Plaintiff's memory was very selective. Id.

On the DSM-IV multiaxial scale, Ms. Ganter diagnosed depressive disorder not otherwise specified (NOS), anxiety disorder NOS, psychotic disorder NOS, and alcohol dependence on Axis I; a personality disorder NOS on Axis II; legal problems and coping skills on Axis IV; and a GAF score of 20 on Axis V. (R. 316).*fn4

Dr. Emilio Ruelos, a psychiatrist at Conifer Park, completed a psychiatric questionnaire on March 24, 2004. (R. 228-34). Dr. Ruelos noted that Plaintiff was undergoing intensive outpatient psychotherapy since his alcohol relapse four weeks ago.

(R. 228, 230). Upon mental status examination, Dr. Ruelos assessed that Plaintiff was fully oriented; his attitude was cooperative and his behavior was appropriate; his speech was normal; his thought processes were intact; his perception was mildly impaired; his mood was depressed; his affect was normal; his insight and judgment were slightly impaired; and he had short term memory difficulties. (R 228-232). Dr. Ruelos opined that Plaintiff's ability to function in a work setting was impaired due to anxiety which limited his sustained concentration, persistence, and social interaction. Id. On the DSM-IV mutliaxial scale, Dr. Ruelos diagnosed alcohol dependence, a generalized anxiety disorder, and depression on Axis I; moderate social, legal, occupational, and family problems on Axis IV; and a GAF score of 53 on Axis V. (R. 229).*fn5

Dr. Abdul Hameed, a State agency psychiatric consultant, reviewed the evidence of record in April 2004 and assessed that Plaintiff's affective, anxiety-related, and substance abuse disorders were not of Listings-level severity. (R. 235, 238, 240, 243). Dr. Hameed assessed that Plaintiff had no restrictions of activities of daily living; mild difficulties maintaining social functioning; moderate difficulties maintaining concentration, persistence, or pace; and one or two extended episodes of decompensation.*fn6 (R. 245). He opined that Plaintiff had no significant limitations understanding, remembering, and carrying out detailed instructions; sustaining an ordinary routine without supervision; working in coordination with others; interacting appropriately with the general public; accepting instructions and responding appropriately to criticism from supervisors; getting along with co-workers; and maintaining socially appropriate behavior. (R. 249, 250). Dr. Hameed also opined that Plaintiff had moderate limitations in: maintaining attention and concentration for extended periods; performing activities within a schedule; and responding appropriately to changes in the work setting. Id. Dr. Hameed noted that Plaintiff had a long history of alcoholism which included felony DWI convictions. (R. 251). Dr. Hameed concluded that Plaintiff's main problem was alcoholism, but, when sober Plaintiff was able to work and his family was intact. Id.

Dr. David Funari, a consultative psychologist, evaluated Plaintiff on November 17, 2004 at the request of the State agency. (R. 282-85). Plaintiff stated that he was an alcoholic and that he was mentally inefficient. (R. 283). He told Dr. Funari that he had lost his driver's licence due to a DWI conviction, (R. 282); that he started working at the age of sixteen, (R. 284); that his depression and anxiety began in his early twenties, (R. 283); that he had held managerial roles in the restaurant business, (R. 284); and that employers were satisfied with his work but he often quit his jobs due to stress and anxiety. Plaintiff was then-currently undergoing psychotherapy at the Outpatient Center. Upon mental status examination, Dr. Funari assessed that: Plaintiff was fully oriented; Plaintiff appeared sad and his responses were slow; Plaintiff had no thought disorders or psychosis; Plaintiff's mood was flat and his affect was numb; Plaintiff's concentration was impaired; Plaintiff's fund of information was fair; Plaintiff's insight was fair; and Plaintiff's judgment was variable. Id. Regarding Plaintiff's activities of daily living, he reported that he washed dishes, did laundry, grocery shopped, used his computer, watched television, and attended treatment sessions. (R. 285).

Dr. Funari assessed that that Plaintiff was able to understand and follow instructions; had good short term memory and good abstract thinking; was slow in performing complex mental tasks; and had difficulty staying focused. (R. 285). On the DSM-IV multiaxial scale, Dr. Funari diagnosed bipolar disorder, currently in depressed phase, in partial remission on Axis I; marital and family problems on Axis IV; and a GAF score of 49 on Axis V. Id.

Dr. Ann Herrick, a State agency psychological consultant, reviewed the evidence of record in December 2004 and assessed that Plaintiff's affective disorder and substance abuse disorder were not of Listings-level severity. (R. 330, 333, 338). Dr. Herrick assessed that Plaintiff had moderate restrictions in performing the activities of daily living; had moderate difficulties in maintaining social functioning; had marked difficulties in maintaining concentration, persistence, or pace; had one or two episodes of deterioration; had no significant limitations in understanding, remembering, and carrying out short, simple instructions; had no significant limitations in sustaining an ordinary routine without special supervision; had no significant limitations in working in coordination with others; had no significant limitations in making simple work-related decisions; had no significant limitations in accepting instructions and responding appropriately to criticism from supervisors; had no significant limitations in getting along with peers and co-workers; and had no significant limitations in maintaining socially appropriate behavior; had moderate limitations in maintaining concentration and attention for extended periods; had moderate limitations in performing activities within a schedule; and had moderate limitations in responding appropriately to changes in the work setting. (R. 330-338).

Plaintiff continued psychiatric therapy with Ms. Longo from January 2005 through September 2005. (R. 364, 371). In January, Plaintiff told Ms. Longo that he was caring for his injured mother and taking his daughter to a ski area once a week. (R. 364). In September, Plaintiff told Ms. Longo that he had been taking care of his daughter all summer and was coaching her fourth-grade soccer team. (R. 371).

Plaintiff's longtime attending psychiatrist, Dr. Michael Slome, M.D., completed a Mental Impairment Medical Source Statement on April 19, 2005 (R. 352-356). Plaintiff contends that the statement "was prepared 26 months after [he] abstained from alcohol except for his relapse." Dr. Slome diagnosed Major Depression with Psychosis, General Anxiety Disorder, and Hypertension. (R. 352). Dr. Slome identified the following signs and symptoms: poor memory, socially isolated, depression, auditory hallucinations, recurrent panic attacks, paranoia and disorientation. (R. 352). Dr. Slome opined that Plaintiff suffers from an "... inability to handle daily environmental stressors without a marked increase in anxiety; lack of motivation is present as part of the depressive syndrome [associated with]... feelings of depression, energia, anxiety, anhedonia, poor motivation, mental dullness, low sex drive, paranoia, impaired concentration, short-term memory impairment and a past history of suicidal ideation and auditory hallucinations." (R. 353). Dr. Slome also stated that "depressive symptoms have exacerbated symptoms of chronic lower back pain," (R. 354),*fn7 but stated that Plaintiff did not have any physical limitations that would limit his ability to work at a regular job on a sustained basis. (R. 356). Dr. Slome rated Plaintiff's "mental abilities and aptitude" to perform different types of unskilled, semiskilled, and skilled work was either "good" (meaning "the ability to function in the area is limited but satisfactory") or "fair" (meaning "the ability to function in this area is seriously limited, but not precluded") (R. 354-355). Dr. Slome noted that "[t]he depressive disorder interferes with attention concentration and short-term memory which affects the mental activities [noted in the categories cited]," and that "patients with depression often cannot focus on even simple tasks." (R. 355). He also noted that "Depression impairs activities of daily living. The patient's symptoms of paranoia make it difficult for him to function in settings outside of the home." (R. 355). In the "treatment and response" section of the form, Dr. Slome noted that Plaintiff was making "slow progress" that had been complicated by the need to adjust medications and dosages. (R. 353).

Plaintiff also treated with Dr. Pankai Kishore, a psychiatrist, from June 21, 2006 through November 11, 2006. (R. 425-430). Progress notes from these sessions indicate Plaintiff's symptoms including poor concentration and attention resulting in poor judgment, tearful depression, high anxiety levels, relationship problems, blunt and/or flat affect, fatigue, memory impairment, and a disheveled appearance. Id. The progress notes also indicate an improvement in Plaintiff's mood over time, and, generally, indicate his "appropriate thought content." Id.

On March 22, 2006, Dr. Kishore completed a psychiatric evaluation, noting that Plaintiff's chief complaint was "depression" and that his stressors were: "Recent separation from wife (Nov 05). Jobless and having financial difficulties. He has applied for disability." (R. 419-21). Plaintiff reported an extensive history of alcohol dependence since his early twenties. (R. 420). He told Dr. Kishore that he had been sober for the past one-and-a-half years. Upon mental status examination, Dr. Kishore observed that Plaintiff was fully oriented, made good eye contact, and related well; Plaintiff's affect was dysphoric; his speech was normal; his thought processes were logical and organized; he had no delusions, hallucinations, or suicidal ideation; his attention and concentration were fair; his memory was intact; and his insight was fair. On the DSM-IV multiaxial ...


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