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Richard Thompson v. Commissioner of Social Security

August 18, 2011


The opinion of the court was delivered by: Andrew T. Baxter, U.S. Magistrate Judge


This matter was referred to me for report and recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636 (b) and Local Rule 72.3(d). This case has proceeded in accordance with General Order 18.


Plaintiff filed*fn1 an application for disability insurance benefits on March 4, 2008, claiming disability since January 1, 2004. (Administrative Transcript (T.) at 104--108). Plaintiff's applications were initially denied on June 3, 2008, and plaintiff requested a hearing before an ALJ. (T. 56--61). The hearing, at which plaintiff testified, was conducted on December 29, 2009. (T. 24--53).

In a decision dated January 28, 2010, the ALJ found that plaintiff was not disabled. (T. 8--23). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on September 2, 2010. (T. 1).


Plaintiff makes the following claims:

1. The ALJ failed to give proper weight to the opinions of plaintiff's treating physicians. (Pl.'s Mem. at 10--13).

2. The ALJ failed to properly apply the special technique for evaluating mental impairments. (Pl.'s Mem. at 13--18).

3. The ALJ failed to properly assess the plaintiff's allegations of disabling symptoms. (Pl.'s Mem. at 18--20).

4. The ALJ erred in finding plaintiff could return to his past relevant work. (Pl.'s Mem. at 20--24).

For the reasons set forth below, the court affirms the ALJ's findings.


A. Disability Standard

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months . . . ." 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff's physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 42 U.S.C. § 1382c(a)(3)(B).

The Commissioner uses a five-step process, set forth in 20 C.F.R. sections 404.1520 and 416.920 to evaluate disability insurance and SSI disability claims.

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which meets or equals the criteria of an impairment listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner ] will consider him disabled without considering vocational factors such as age, education, and work experience . . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant can perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520, 416.920. The plaintiff has the burden of establishing disability at the first four steps.

However, if the plaintiff establishes that his impairment prevents him from performing his past work, the burden then shifts to the Commissioner to prove the final step. Id.

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supported the decision. Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). A reviewing court may not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if the decision appears to be supported by substantial evidence. Johnson, 817 F.2d at 986. In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).

A court's factual review of the Commissioner's final decision is limited to the determination of whether there is substantial evidence in the record to support the decision. 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). "Substantial evidence has been defined as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Williams on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be "more than a scintilla" of evidence scattered throughout the administrative record.

Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 197 U.S. 229 (1938)); Williams, 859 F.2d at 258.

"To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams, 859 F.2d at 258. However, a reviewing court may not substitute its interpretation of the administrative record for that of the Commissioner, if the record contains substantial support of the ALJ's decision. Id. See also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).


Plaintiff's medical records show that he received psychiatric treatment from January 2000 through December 2009. (T. 193--347). On January 20, 2000, plaintiff, then a postal worker, was admitted to an inpatient psychiatric program at South Oaks Hospital. (T. 199--200). He was hospitalized until January 28, 2000. The discharge summary from the inpatient hospitalization states that plaintiff was admitted because he felt like he was a "time bomb waiting to explode and to go berserk." (T. 199). He was angry because he could only see his family on weekends and felt that people wanted to electrocute or poison him. Id. Plaintiff reported that his supervisor was deceitful and a liar, and plaintiff stated that he would kill or "take out" his supervisors if they prevented him from commuting to see his family. (T. 199). However, plaintiff had only an antique long rifle that did not work and a BB-gun. Id.

The discharge summary stated that plaintiff did well with medication*fn2 and daily psychotherapy. Plaintiff was treated by Dr. Harold Lasker, M.D., who stated that plaintiff's condition on discharge was "Improved." At the time of discharge, plaintiff was in good contact with reality, not dangerous to himself or others, voiced no complaints, and showed no side effects. Dr. Lasker stated that plaintiff was "fit to return to work." (T. 199). Plaintiff's diagnoses were bipolar disorder with psychosis, alcohol abuse, and impulse control disorder. (T. 200).

On January 28, 2000, upon discharge from the hospital, plaintiff was admitted to a "partial hospital program" at South Oaks Hospital and stayed in that program until February 8, 2000. (T. 197--98). During this program, plaintiff attended self-help groups and continued to see Dr. Lasker. (T. 200). Plaintiff did well in the program. Id. He was compliant with his medications, talkative, and admitted that, although he was angry at his supervisors, he would not hurt or kill them. At the time of plaintiff's discharge on February 8, 2000, Dr. Lasker stated that plaintiff's prognosis was "fair to good," so long as he remained compliant with his treatment. (T. 198). During the inpatient and the partial hospitalization program, plaintiff's Global Assessment of Functioning*fn3 (GAF) score went from 25 on admission to 50. (T. 200). When plaintiff was discharged from the partial hospitalization program, his GAF was 70, and his condition on discharge was "Improved." (T. 197).

Plaintiff received most of his subsequent treatment at the Lewis County Community Health Center (LCCHC) from several physicians, including Dr. Pankaj Kishore, Dr. Sagarika Narangoda, Dr. Joyce Sudeall, Dr. Aflatoon Shafaie, and Dr. Seymour Leven. (T. 201--51; 303--39).

Dr. Kishore treated plaintiff from 2001 through February 2004. (T. 218, 221--226). On January 22, 2001, Dr. Kishore stated that plaintiff did not present a clear history of manic and depressive symptoms, but that the plaintiff had reported that he had paranoid beliefs and bipolar disorder. (T. 203--04). Dr. Kishore continued the diagnosis of bipolar disorder, pending further information, and continued plaintiff's prescription for Lithium Carbonate. Id. On November 23, 2001, Dr. Kishore noted that plaintiff's psychotic symptoms were worsening, and he prescribed Risperdal. (T. 223). On May 29, 2002, Dr. Kishore noted that plaintiff was "doing well" and had not been having any significant depression. (T. 225).

Plaintiff did well throughout the rest of 2002, despite different stressors, and in August 2003, Dr. Kishore noted that plaintiff had adjusted well to working as a truck driver, had no symptomatic relapse, and did not seem to be getting paranoid. (T. 225--26). Dr. Kishore noted, on February 11, 2004, that plaintiff had adequate control ...

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