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Hutton v. Astrue

April 25, 2010


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



This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied plaintiff Kenneth Hutton's ("Plaintiff") application for Social Security Disability Insurance ("SSDI") benefits. Now before the Court are Defendant's motion [#9] for judgment on the pleadings, and Plaintiff's motion [#10] for judgment on the pleadings and remand for calculation of benefits, or in the alternative, for remand for consideration of new evidence pursuant to 42 U.S.C. § 405(g), sentence six. For the reasons that follow, Plaintiff's application [#10] is denied and Defendant's application [#9] is granted.


This case has a long and complicated procedural history, which is adequately described in the parties' submissions. It is sufficient to note that on October 18, 2001, Plaintiff applied for SSDI benefits, claiming to be disabled since May 1999, due to "chronic depression, PTSD, tense muscles, insomnia, irritability, anxiety, lack of concentration." (146). Plaintiff remained insured for disability benefits through December 31, 2005. After an Administrative Law Judge ("ALJ") issued a decision denying benefits, the Appeals Council remanded the matter for a new hearing. On April 8, 2005, a different ALJ issued a second decision, finding that Plaintiff was not disabled. Subsequently, the case made its way to the United States Court of Appeals for the Second Circuit, where the parties stipulated to another remand. On September 29, 2008, the ALJ issued a third decision, which was partially-favorable to Plaintiff, in that it found him disabled during the closed period February 2, 2003 through April 8, 2004. On January 16, 2009, Plaintiff commenced the subject action. On January 25, 2010, the parties filed the subject cross-motions.


Plaintiff has a Master's Degree in Education, and he worked as a public school social studies teacher for approximately sixteen years. (40, 48).*fn1 In May 1999, Plaintiff left work on sick leave, and has not worked since. (32-33). Plaintiff stopped working because he felt "anxious" and fearful while working in school. (34). Plaintiff's anxiety apparently arose from a combination of factors, including the Columbine School Shooting*fn2 , a feeling that the school administration was not supporting him,*fn3 and various traumas growing up. Immediately prior to leaving work, Plaintiff experienced insomnia for three days, as well as back pain, and felt that he was "burned out" and might "lose control" at school. (48-49). Plaintiff believes that the pain in his back, which he has continued to experience, is due to stress and muscle tension. (61).

Plaintiff stated that he experienced "manic" episodes, followed by a period depression, approximately once per month. (52-53). During his so-called manic periods, Plaintiff experiences racing thoughts, and he starts many projects which he does not finish. (53). Plaintiff indicated that he spends his free time reading and refinishing furniture. (38). Plaintiff drives a car and performs his own cooking, cleaning, and shopping. (39). In August 2001, Plaintiff indicated that he spent his time attending AA meetings, reading, and "listening to the Yankees." (169). Subsequently, Plaintiff has become active in local politics, and he volunteers for several organizations, including his church, Literacy Volunteers, and Sonnenberg Gardens in Canandaigua, New York, where he does carpenty and maintenance. Plaintiff also writes songs and performs music, and has recorded a music CD. Additionally, Plaintiff engages in recreational activities including golf and softball. (65-66).


Because of the procedural history of this case, there have been hearings before ALJs on three separate occasions: September 10, 2003, November 10, 2004, and June 18, 2004. At the second hearing, the ALJ indicated that the record was not complete, because it did not contain records concerning all of Plaintiff's visits to his counselors at Clifton Springs Hospital (69-71, 78) ("ALJ: Well, I don't see the information that indicates [that Plaintiff was seeing a therapist] two to three times a month in there, because if we are [sic], we're going to get that information."). Plaintiff's counsel initially suggested that the record was complete because it contained a summary report from Plaintiff's mental health counselor, but he eventually agreed that the records from all of Plaintiff's appointments should be included. (Id.). At the third hearing, the ALJ again indicated that, although the record contained summary reports from Plaintiff's counselors, he wanted the record to also include the counselor's progress notes. (830). Plaintiff's attorney objected, and indicated that Social Security regulations do not require the inclusion of such notes. (Id). Plaintiff's attorney further indicated that the ALJ could render a decision without such treatment notes, since the record was already strong. (831). The ALJ nevertheless insisted that he wanted the notes, and he subpoenaed them and included them in the record. (831-832). Specifically, the ALJ subpoenaed from Clifton Springs Hospital "[a]ll Kenneth Hutton's medical records, including reports, treatment notes, and progress notes from February 17, 2003 to the present." (423-824). Plaintiff's attorney subsequently wrote to the ALJ, stating that the subpoenaed records supported Plaintiff's claim of disability. (825-826).

Plaintiff's medical history was summarized in the parties' briefs and need not be repeated here. It is sufficient for purposes of this Decision and Order to note the following facts.

Plaintiff is a recovering alcoholic, who has abstained from alcohol since approximately 1987. (220).

On May 20, 1999, Plaintiff told his primary care physician, Chip Sahler, M.D. ("Sahler"), that he was having trouble sleeping, along with feelings of sadness and an inability to focus. (212).*fn4 Sahler placed Plaintiff on Paxil, but this caused Plaintiff to feel anxious, so Sahler prescribed Serzone instead. (Id.). On June 3, 1999, Sahler stated that Plaintiff was depressed, was not sleeping well, and had slowed speech and thinking. (210). Sahler opined that Plaintiff should not return to work for the remainder of the school year. (Id.). On August 13, 1999, Sahler reported that Plaintiff was "vaccilating" about whether to return to teaching, and that he had been considering taking a sabbatical but then had a panic attack. (211). Plaintiff indicated that he was sleeping better, but he still appeared "quite depressed." (211). On September 14, 1999, Sahler noted that Plaintiff was "doing better" on Serzone. (208). On November 9, 1999, Sahler indicated that he was taking Plaintiff off Serzone and placing him on Celexa, because Serzone was making him anxious. (209). In June 2000, Plaintiff stopped treating with Sahler. (334).

On September 12, 2000, Plaintiff saw Zbigniew Lukawski, M.D. ("Lukawski") for an initial visit. (220). Plaintiff indicated that he "remain[ed] physically active, playing golf, softball, and hiking extensively." (Id).*fn5 Plaintiff told Lukawski that he had a "bout of depression" earlier in the year, for which he took various medications, finally settling on Celexa. (Id.). Plaintiff stated, though, that he had stopped taking Celexa in August 2000. (Id.). Plaintiff's complaints that day were limited to physical aches and pain, and Lukawski did not provide any treatment for depression. (Id.). On December 1, 2000, Plaintiff complained to Lukawski of "depressed mood," and Lukawski observed that Plaintiff was "clinically stable," without suicidal thoughts. (218). Plaintiff complained of side-effects from taking Serzone, and Lukawski prescribed Zoloft. (Id.). On December 21, 2000, Lukawski reported that Plaintiff's depression was "well controlled" with Zoloft. (217). On February 5, 2001, Plaintiff told Lukawski that his depression was "not under good control," although he felt better Zoloft than without it. (216). On February 27, 2001, Plaintiff told Lukawski that his depression had improved since his Zoloft dosage was increased. (215, 328). On May 22, 2001, Lukawski reported that Plaintiff's depression was "relatively well controlled." (214).

On March 4, 2001, Plaintiff began treating with William Lewek, M.D. ("Lewek"), a psychiatrist. (244). On March 29, 2001, Lewek stated that Plaintiff had "tried a variety of medications including Paxil, Serzone, and Celexa with poor results." (Id.). Lewek indicated that Plaintiff was currently taking Zoloft, 200 mg. (Id.). Lewek reported that Plaintiff claimed to suffer from "mood swings, severe anxiety, fatigue, excessive sleep, labile mood and worry." (Id.). Lewek's diagnoses were "major depression, dysthymia, anixiety disorder, and alcohol dependence in remission x13 years." (Id.). Plaintiff indicates that he saw Lewek "every couple months." (35). On October 8, 2001, Lewek completed a disability evaluation form. (245-256). Lewek stated that Plaintiff's symptoms were "fluctuating mood reactive to stressors, distractibility, irritability." (246). Lewek indicated that he saw Plaintiff "mainly for medication management," and that Plaintiff had a "good" and "robust response" to Wellbutrin. (246, 249). Lewek observed that as of July 2001, Plaintiff's fatigue, secondary to depression, "had abated a great deal." (247). Lewek further stated that as of July 2001, Plaintiff was "not depressed," and had a normal affect. (250). Lewek also stated that Plaintiff was oriented and had no memory problems, but had "difficulty focusing." (Id.). Lewek noted that Plaintiff was "interested in music, carpentry and writing songs." (252). Lewek opined that although Plaintiff was "less depressed he is a fragile individual who could easily decompensate with stress." (252). Lewek stated, though, that Plaintiff had "no limitation" on his ability to interact socially with supervisors and co-workers, and that he "currently" would have no limitation adapting to changes in the work setting. (255). Lewek specifically stated that he did not think that Plaintiff could return to teaching high school. (255).

On October 1, 2001, Lukawski reported that Plaintiff's depression was "overall under good control, but he occasionally has down feelings." (325).

On October 4, 2001, John Thomassen, Ph.D. ("Thomassen"), performed a psychiatric evaluation. (231-235). Thomassen was a non-treating independent examiner. Plaintiff told Thomassen that he was unable to work due to "depression and Post Traumatic Stress Disorder." (231). Plaintiff denied having any psychiatric hospitalizations. (Id.). Plaintiff stated that he was anxious about continuing to work in a school, and was "traumatized by fear that children would bring guns to school." (232). Plaintiff reported having low energy and no goals for the future, but his sleep and appetite were normal. (Id.). Plaintiff's affect was muted, his mood was dysphoric, and his "thought processes were coherent and goal directed with no evidence of thought disorder." (233). Plaintiff's speech was slow, but otherwise appropriate. (Id.). Plaintiff's attention, concentration, and memory were intact, and his intelligence was in the "above average range." (Id.). Plaintiff's insight and judgment were good. (233-234). Plaintiff reported having "some problems" getting along with his family, and noted a loss of interest in activities such as walking and playing softball. (234). Plaintiff stated that he spent an average day going to AA meetings and doing chores. (Id.). Thomassen's diagnosis was "anxiety disorder, not otherwise specified," and "dysthymic disorder." (Id.). Thomassen stated that Plaintiff "present[ed] with mild symptoms of depression and anxiety for which he is likely to benefit from ongoing counseling." (Id.). Thomassen opined that Plaintiff would be able to follow simple directions and perform rote tasks, and that Plaintiff could perform "complex tasks consistent with his skill level." (Id.). Thomassen indicated, though, that Plaintiff would "have some problems relating with co-workers and coping with stress." (Id.). Overall, Thomassen found that Plaintiff's "allegations of psychiatric disability were not fully consistent with examination findings." (Id.).

On October 4, 2001, Plaintiff was given a physical examination by George Sirotenko, D.O. ("Sirotenko"), a non-treating, independent examining physician.

Notably, Plaintif told Sirotenko that he had attempted suicide "three years ago," an allegation that does not appear elsewhere in the record. (238). Sirotenko observed that Plaintiff had a "flat affect and [a] somewhat depressed demeanor." (239).

On March 4, 2002, Plaintiff told Lukawski that his depression was "under control" with 50 mg of Zoloft each day, and he asked Lukawski if he could stop taking Zoloft altogether. (323). Lukawski advised Plaintiff not to reduce his Zoloft dosage on his own. (Id.). On October 16, 2002, Plaintiff saw Lukawski for a yearly physical exam. Plaintiff told Lukawski that his depression was "still not controlled very well" while taking Zoloft and Zyprexa. (319-320).

On September 8, 2003, Lukawski completed a "Mental Impairment Evaluation" form prepared by Plaintiff's attorney. (288-291). Lukawski stated that he began treating Plaintiff in September 2000. (288). Lukawski stated that Plaintiff would have a "fair" ability to follow work rules, relate to co-workers, and function independently, but would be "seriously limited" with regard to using judgment, and would have "poor or no" ability to deal with the public, interact with supervisors, deal with stress, and maintain attention/concentration. (290). Lukawski further stated that Plaintiff would be "seriously limited" in his ability to understand, remember, and carry out complex job instructions. (291).

On September 19, 2003, Kathryn DeBruin, CSWR ("DeBruin") completed a "Mental Impairment Evaluation" form prepared by Plaintiff's attorney. (296-299). DeBruin stated that she had counseled Plaintiff eighteen times between January 2003 and September 2003. (296). DeBruin stated that Plaintiff "recently had a 3 day hypomanic episode," consisting of "problems sleeping, problems completing tasks, racing thoughts, [with an] increase in energy," after which he became depressed. (296). DeBruin reported that Plaintiff had a flat affect and depressed mood. (297). Nevertheless, DeBruin's evaluation was fairly positive concerning Plaintiff's ability to work. In that regard, DeBruin stated that Plaintiff would have a good ability to follow work rules, maintain concentration and attention, maintain his personal appearance, demonstrate reliability, and understand and carry out simple job instructions; a fair ability to relate to co-workers, deal with the public, use judgment, understand and remember complex and detailed job ...

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