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Fortier v. Astrue

April 14, 2010

LEON J. FORTIER, SR., PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Henry Pitman, United States Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE RICHARD J. SULLIVAN, United States District Judge

I. Introduction

Plaintiff, Leon J. Fortier, Sr., brings this action, pro se, pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB"). Both plaintiff and defendant have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket Items 8 and 12). For the reasons set forth below, I respectfully recommend that judgment on the pleadings be granted in favor of defendant.

II. Facts

A. Procedural Background

Plaintiff filed an application for DIB pursuant to 42 U.S.C. § 423(b) on January 23, 2006, alleging that he had been disabled since November 30, 2005 (Tr. 85).*fn1 He stated that he has depression, Post-Traumatic Stress Disorder and a substance abuse problem, all of which he alleges stem from the September 11, 2001 attacks (Tr. 100, 102-03). The Social Security Administration denied plaintiff's application for benefits on July 19, 2006 (Tr. 13, 77). Plaintiff timely requested and was granted a hearing before an Administrative Law Judge ("ALJ") (Tr. 13, 54-56, 75). The ALJ, Brian W. Lemoine, conducted a hearing on November 26, 2007 (Tr. 13) at which plaintiff was represented by Jack Vega, a non-attorney representative from the Legal Aid Society of Rockland County, Inc. (Tr. 13, 23-24, 51). A vocational expert, Pat Green, was also present at the hearing (Tr. 13, 23-24). In a decision issued on June 11, 2008, the ALJ found that plaintiff was not disabled from November 30, 2005 through June 11, 2008 (Tr. 13-19). Plaintiff requested review of the decision on September 30, 2008 (Tr. 7-8), and the ALJ's determination became the final decision of the Commissioner on November 17, 2008, when the Appeals Council denied plaintiff's request for review (Tr. 3).

On December 30, 2008, plaintiff commenced the instant pro se action seeking judicial review of the ALJ's decision (Compl. at 3). Plaintiff stated in the complaint that he was entitled to DIB because of "P.T.S.D." (Post-Traumatic Stress Disorder), depression, "COPD" (presumably, chronic obstructive pulmonary disease), heart disease, "[g]allbladder," "pancreas" and hearing loss*fn2 (Compl. ¶ 4). On June 9, 2009, plaintiff moved for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure (Plaintiff's Notice of Motion, dated June 9, 2009, Docket Item 8 ("Pl.'s Notice of Mot.")). On October 5, 2009, defendant cross-moved for judgment on the pleadings under Rule 12(c) (Defendant's Notice of Motion, dated October 5, Docket Item 12).

In plaintiff's submissions in support of his motion and in opposition to defendant's cross-motion, he does not contend that the ALJ erred in any specific way, but rather emphasizes his symptoms, his difficulty working, and that he had worked hard until the onset of his mental conditions (Plaintiff's Affirmation in Support of Motion, dated June 9, 2009 ("Pl.'s Aff. in Support") at 1-3; Letter from plaintiff to the undersigned, dated October 6, 2009, included in the submission being treated as Plaintiff's Affidavit in Opposition ("10/6/09 Fortier Letter") at 1). Defendant argues in support of his motion that the ALJ's decision should be upheld because it was supported by substantial evidence and did not contravene any applicable laws or regulations (Memorandum of Law in Support of the Commissioner's Cross-Motion for Judgment on the Pleadings ("Def's. Mem. in Support") at 1; Answer ¶ 12).

In his submission in support of the motion, plaintiff submitted evidence that was not part of the original administrative record (Plainttiff's Aff. in Support, attachments, all attached to Pl.'s Notice of Mot.; see Endorsed Letter from John E. Gura, Esq., to the undersigned, dated July 13, 2009 and endorsed July 16, 2009; Endorsed Letter from John E. Gura, Esq., to the undersigned, dated August 13, 2009 and endorsed August 19, 2009; Endorsed Letter from John E. Gura, Esq., to the under-signed, dated September 14, 2009 and endorsed September 18, 2009). On October 21, 2009, plaintiff submitted a document to the Office of the Pro Se Clerk entitled "Notice of Motion to Amend the Complaint," seeking to add further evidence ("Notice of Motion to Amend the Complaint," dated October 21, 2009, Docket Item 19, now entitled "Affirmation in Opposition to Deft. Motion to Dismiss," Docket Item 16 ("Pl.'s Aff. in Opp."); see Order, issued November 17, 2009 ("11/17/09 Order")). Several of the documents plaintiff seeks to add post-date the complaint (Pl.'s Aff. in Opp., attachments; see 11/17/09 Order). The submission also includes a letter from plaintiff to the undersigned describing some of the details of his situation and dated October 6, 2009 (10/6/09 Fortier Letter). On November 19, 2009, I entered an order directing the Clerk of the of Court to file this "motion" as a supplement to plaintiff's opposition to defendant's motion for judgment on the pleadings (11/17/09 Order). My Order did not express any opinion on the propriety of considering this new evidence for any purpose (11/17/09 Order).

B. Plaintiff's Social Background

Plaintiff was born on March 14, 1955 (Tr. 49). He attended school through either 10th or 11th grade and does not have a GED (Tr. 35-36, 107, 122). Plaintiff has four adult children (Tr. 33, 36) and, at the time of the ALJ's hearing on November 26, 2007, was in the process of getting a divorce (Tr. 28). On April 21, 2006, Leslie Helprin, an examining psychologist, reported that plaintiff was living with his parents (Tr. 159), but plaintiff stated on November 26, 2007 that he was living alone in a rented trailer (Tr. 33-34). Plaintiff's only sources of income are public assistance from the Department of Social Services, which he states pays his rent, and some contributions from his parents (Tr. 34, 36). Plaintiff is covered by Medicaid (Tr. 34).

Plaintiff started working at the age of 14 (Tr. 27). Most recently, and for the fifteen years preceding his application for DIB, plaintiff worked as a construction supervisor for $2 to $3 million construction projects in Manhattan (Tr. 26-27, 31). The job involved scheduling the work on the projects, tracking the work of the various trades involved and making sure the projects were completed on time (Tr. 27). Plaintiff supervised between ten and fifty people at various times (Tr. 104). In addition to oversight and supervision, plaintiff's job involved some physical labor (Tr. 104). In the fifteen years before he applied for DIB, plaintiff worked for JMK Construction, Micron, and, finally, Federation Development, where he was working on September 11, 2001 (Tr. 33). Plaintiff lost his job shortly after the 9/11 attacks, as many of the construction projects he had been assigned to were in lower Manhattan (Tr. 26). Plaintiff stated that between 2000 and 2002, he worked sporadically as a self-employed contractor, doing carpentry work for a New York City law firm (Tr. 32-33), but also reported that he was out of work for a year after losing his job at Federation Development (Tr. 103).*fn3 Plaintiff started working as a construction supervisor again in 2004, but stated that he could not attend work consistently or function properly at work (Tr. 26-27). Plaintiff testified that the last day he worked was in November 2005*fn4 (Tr. 28).

C. Plaintiff's Medical Background*fn5

1. Treating Physicians

Dr. Jay Lombard, a neurologist, began treating plaintiff at the Brain Behavior Center on either January 18, 2002 or January 18, 2003*fn6 (Tr. 150). Dr. Lombard completed a questionnaire for the New York State Office of Temporary and Disability Assistance on June 29, 2006 (Tr. 150-56). He reported a treating diagnosis of polysubstance abuse (Tr. 150) and listed plaintiff's presenting problems as crack abuse, alcoholism and depression (Tr. 152). He indicated "poor compliance" in the section on "treatment and response" (Tr. 151) and indicated that the expected duration of plaintiff's condition was "lifelong" (Tr. 151). Dr. Lombard commented that plaintiff's "attitude, appearance [and] behavior" was "distracted" and that plaintiff had poor insight and pressured speech (Tr. 153). He indicated that plaintiff had made a suicide attempt in the form of substance overdose on July 3, but the year is illegible*fn7 (Tr. 154). He also indicated that plaintiff was "currently hospitalized at Nyack Hospital" as the result of an overdose (Tr. 152); it is unclear whether these two notations refer to the same event.

Dr. Lombard stated that plaintiff had no limitation in understanding and memory (Tr. 155), but that his depression limited his sustained concentration and persistence, which the form describes as the ability to "follow simple or detailed instructions, follow schedules, work with others, follow a reasonable pace, sustain ordinary routine without supervision, maintain customary attendance and punctuality, etc." (Tr. 155). Dr. Lombard also stated that plaintiff's significant substance abuse caused limitations in his social interaction, which the form describes as the ability to "interact with the public, ask simple questions, accept supervisory instructions, get along appropriately with co-workers, adhere to basic neatness and cleanliness etc." (Tr. 155). He also indicated that plaintiff was limited in his adaption ability, which the form describes as the ability to "respond appropriately to changes in the work setting, be aware of hazards, travel/use public transportation, set realistic goals, make plans independently, etc.," but his notation as to the reason for this limitation is illegible (Tr. 155). Dr. Lombard stated that plaintiff's ability to perform the activities of daily living was within normal limits (Tr. 154).

Dr. Lombard opined that plaintiff's ability to do work-related mental activities was affected by the "significant mental disabilities" of "polysubstance abuse [and] major depression" (Tr. 154).

Dr. Lawrence Levitt, a psychiatrist, began treating plaintiff at Good Samaritan Hospital's Frawley Clinic on November 5, 2007 (Tr. 27, 30). Dr. Levitt completed a Functional Capacity Questionnaire for Psychiatric Disorders for the Social Security Administration on April 23, 2008 (Tr. 176-81). In the questionnaire Dr. Levitt noted that he had weekly contact with plaintiff for psychotherapy and monthly contact for maintenance of plain-tiff's medications (Tr. 176). His diagnoses included recurrent major depression, alcohol dependence in remission and personality disorder "NOS" (i.e., not otherwise specified) (Tr. 176). Dr. Levitt noted that plaintiff had demonstrated a positive response to counseling sessions but gave plaintiff a prognosis of "guarded" (Tr. 177). The symptoms reported by Dr. Levitt were a history of alcoholism and substance abuse, sleep disturbance, severe depression, OCD (obsessive compulsive disorder) symptoms such as compulsive cleaning, an emotionally charged affect ("on occasion bursts into tears"), poor appetite and some increase in psychomotor activity (Tr. 176). Dr. Levitt reported that plaintiff was taking Trazodone and Paxil, and that he had tried Effexor but it had caused some side effects (Tr. 177).

Dr. Levitt opined that plaintiff had a mild limitation*fn8 in the activities of daily living, a moderate limitation in maintaining social functioning, a marked limitation in concentration, persistence or pace resulting in failure to complete tasks in a timely manner and that plaintiff has experienced one or two episodes of deterioration or decompensation that cause him to withdraw from the situation or experience an exacerbation of signs and symptoms (Tr. 178-80).

Dr. Levitt also opined that in a work setting on a regular and continuous basis, plaintiff would have a moderate limitation in his ability to understand, remember and carry out instructions; that plaintiff would have mild limitations in his abilities to respond appropriately to supervision and co-workers; that plaintiff would have a marked limitation in his ability to satisfy an employer's normal quality, production and attendance standards; that plaintiff would have a moderate limitation in his ability to respond to customary work pressures; that plaintiff would have a marked limitation in his ability to perform complex tasks on a sustained basis in a full-time work setting and that plaintiff would have a mild limitation in his ability to perform simple tasks on a continued basis in a full-time work setting (Tr. 180-81).

Dr. Levitt opined that as of the time of the evaluation, plaintiff could not sustain his former work activity and noted further that his concentration was impaired, he attended Alcoholics Anonymous ("AA") meetings one or two times daily, and that he was still vulnerable to relapse (Tr. 181).

2. Hospital Admissions

Plaintiff states that he was admitted to Good Samaritan Hospital in Suffern, New York from December 3, 2005 through January 2, 2006 as the result of an anxiety attack, and received therapy and medication (Tr. 105-06).

The record also contains documents reflecting plain-tiff's admission to the Emergency Department at Good Samaritan Hospital on July 3, 2006 (Tr. 165). The documents state that plaintiff arrived as a walk-in requesting alcohol detoxification (Tr. 168), that plaintiff had been discharged earlier that same day from six days of detox, that he drank several beers in an effort to get readmitted to detox and that (although the time period referred to was unclear) he "repeatedly went out and smoked crack cocaine, his drug of choice" (Tr. 166). The records for this admission indicate a final diagnosis of alcohol intoxication (Tr. 165). The rest of the notes are largely illegible, but the author appears to have determined that there were no beds available for detox and told plaintiff to call on July 5, 2006 (Tr. 166). The notes indicate that plaintiff was discharged on July 3, 2006 (Tr. 166).

A discharge summary, written by Dr. Mahomed Bhana, the attending physician, states that plaintiff was initially admitted to our detox unit with a history of drinking 18 Bacardi's a day for the last 12 months and spending a lot of money on cocaine and crack. . . . After patient completed detox, he was admitted to our rehab unit. The patient reported that he had been depressed and had lost interest in his work and also had to move in at his parents home where he had to sleep in the basement and the place was a mess. The patient was started on Wellbutrin XL 150 mg a day while he was in rehab, as well as Zyprexa 5 mg a day, which he claims help his anxiety. (Tr. 171). Dr. Bhana's discharge summary also notes that plaintiff has "a history of using alcohol since age 12 and crack since age 47" (Tr. 171). It stated that plaintiff had been admitted to Good Samaritan twice, first from December 2005 to January 2006*fn9 and then four months later after a relapse (Tr. 171). Dr. Bhana's diagnoses included alcohol and cocaine dependence as well as major depression (Tr. 171). He stated that plaintiff "denies any suicidal or homicidal ideations" (Tr. 171). Dr. Bhana noted that plaintiff "stayed only 1 day in rehab and insisted on leaving the hospital as he had to see the dentist and to see his son who is in jail and to return to his work. . . . [Plaintiff] left the unit against clinical advice" (Tr. 172).

3. Consultative Physicians

Dr. Leslie Helprin of Industrial Medicine Associates in New City, New York performed a consultative psychiatric evaluation of plaintiff on April 21, 2006 (Tr. 159). Dr. Helprin reported the following findings. Plaintiff participated in marital counseling with a private psychologist for six or seven months around 1991 (Tr. 159) and, as of the time of the evaluation, was seeing Dr. Jay Lombard, who prescribed Zyprexa and had prescribed Zoloft in the past (Tr. 159). Plaintiff slept and ate well but was fatigued and felt "mellow" (Tr. 159). He denied any suicidal thoughts or attempts (Tr. 159). Plaintiff was affected by anxiety, experienced heart palpitations and had several thoughts at once (i.e., he did not know "whether to put on [his] shoes or take a shower or brush [his] teeth or smoke or have coffee") (Tr. 159-60). Plaintiff reported difficulty in thinking and stated that this caused things to take longer (Tr. 160). Plaintiff denied any drug or alcohol use at the time of the evaluation, but had attended AA meetings in the past and was once told by his marital counselor that he was a "weekend alcoholic" (Tr. 160). Plaintiff indicated that several other members of his family were alcoholics as well (Tr. 160).

Plaintiff told Dr. Helprin that he stopped working because of problems concentrating and the fact that his thinking was "'not right'" (Tr. 159).

Dr. Helprin found plaintiff cooperative during the evaluation and described "[h]is manner of relating, social skills, and overall presentation" as "adequate" (Tr. 160). Dr. Helprin found that plaintiff's appearance was normal; that his speech was fluent and clear but "with word finding difficulties and limited receptive language skills"; that his thought processes were "[c]oherent and goal directed with no evidence of hallucinations, delusions, or paranoia"; that his affect was "[o]f full range and appropriate in speech and thought content"; that his mood was "[e]uthymic*fn10 and smiling"; that his attention and concentration were "mildly impaired due to limited intellectual functioning"; that his memory skills were "mildly impaired due to limited intellectual functioning and nervousness"; and that his cognitive functioning was characterized by "intellectual skills in the low average range and [a] limited general fund of information" (Tr. 160-61).

Dr. Helprin noted that although plaintiff was able to dress, bathe and groom himself, his parents assisted him with cooking, cleaning, laundry, shopping and money management (Tr. 161). He also stated that plaintiff was able to drive and attended AA meetings (Tr. 161). Plaintiff reported claustrophobic feelings when in crowds, such as when using public transportation (Tr. 161). In terms of vocational skills, Dr. Helprin found that plaintiff was "able to follow and understand simple directions and instructions and perform simple rote tasks, but not complex tasks due to cognitive limitations and nervousness," and that he was "able to maintain sufficient attention and concentration [if] provided [with] specific task instructions" (Tr. 161-62). Dr. Helprin also opined that plaintiff was "able to make appropriate decisions, relate adequately with others, and deal appropriately with stressors with current treatment" (Tr. 162). Overall, the examination results were "consistent with psychiatric difficulties, but with current treatment, this d[id] not appear [to Dr. Helprin] to be significant enough to interfere with [plaintiff's] ability to function on a daily basis" (Tr. 162). Dr. Helprin noted diagnoses of agoraphobia, alcohol abuse in full sustained remission, hypertension and hypothyroidism, potential "depressive disorder, NOS [(not otherwise specified)] (currently controlled with medication)," and potential borderline intellectual functioning (Tr. 162). Dr. Helprin's recommendations were that plaintiff continue with his current psychiatric treatment and "undergo vocational retraining for a job commensurate with his skills and simple tasks with specific procedural instructions, not in a supervisory capacity" (Tr. 162).

Dr. Abdul Hameed, a state agency medical consultant, completed the Psychiatric Review Technique form for the Social Security Administration on July 13, 2006 (Tr. 130-44; see Def.'s Mem. in Support at 7). He reported positive findings for the categories of affective disorders, anxiety-related disorders and substance addiction disorders and indicated that a residual functional capacity assessment was necessary (Tr. 130). Under the section of the form corresponding to the paragraph B criteria of the listings for plaintiff's impairments, found in Section 12.04 of 20 C.F.R. Part 404, Subpart P, Appendix 1, Dr. Hameed found that plaintiff had no restriction in activities of daily living, mild difficulties in maintaining social functioning and moderate difficulties in maintaining concentration, persistence or pace (Tr. 140). He found further that plaintiff had experienced one or two repeated episodes of deterioration (Tr. 140). Dr. Hameed also found that the evidence did not establish the existence of the criteria in paragraph C of the listings (Tr. 141).

In conjunction with the Psychiatric Review Technique form, Dr. Hameed completed a Mental Residual Functional Capacity Assessment for plaintiff dated July 13, 2006 (Tr. 144). Dr. Hameed found that plaintiff's only significant limitations were moderate limitations in his abilities to respond appropriately to changes in the work setting and to set realistic goals or make plans independently of others (Tr. 145). Specifically, Dr. Hameed opined that plaintiff had no significant limitation in his ability to do any of the following: -- "complete a normal workday and workweek without interruptions from psychologically based symptoms [or] to perform at a consistent pace without an unreasonable number and length of rest periods" -- "interact appropriately with the general public" -- "ask simple questions or request assistance" -- "accept instructions and respond appropriately to criticism from supervisors" -- "get along with co-workers or peers without distracting them or exhibiting behavioral extremes" -- "maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness" -- "be aware of normal hazards and take appropriate precautions" -- ...


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