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Jason Schultz v. Michael J. Astrue

January 25, 2012


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 the application of Jason Schultz ("Plaintiff") for Social Security disability benefits. Now before the Court is Defendant's motion [#4] for judgment on the pleadings and Plaintiff's cross-motion [#8] for judgment on the pleadings.


On May 4, 2007, Plaintiff applied for disability and Supplemental Security Income ("SSI") benefits. On August 23, 2007, the Social Security Administration ("SSA") denied the application. On August 7, 2009, a hearing was held before Administrative Law Judge Mark Solomon ("the ALJ"). On October 16, 2009, the ALJ issued a decision finding that Plaintiff was not disabled. Plaintiff appealed to the Appeals Council, and submitted additional medical information from James Mark, M.D. ("Mark"), Plaintiff's orthopedist. On September 8, 2010, the Appeals Council denied the appeal. On October 29, 2010, Plaintiff commenced this action.

Plaintiff contends that the ALJ erred in several ways. First, Plaintiff maintains that the ALJ failed to classify Plaintiff's obsessive-compulsive disorder ("OCD"), personality disorder, and cognitive disorder as serious impairments. Plaintiff asserts that the ALJ failed to recognize that each of these conditions is a separate impairment, and instead, mistakenly lumped them together as attention-deficit-hyperactivity disorder ("ADHD"). Plaintiff further states that even if these conditions are not "serious impairments" on their own, they are serious when considered together. Particularly as to Plaintiff's cognitive disorder, Plaintiff contends that the ALJ erroneously dismissed the opinion of Marc Gaudette, PsyD. ("Gaudette"), and substituted his own medical judgment. At the same time, though, Plaintiff states that the title used to describe his impairments is "inconsequential," since what really matters is the limitations that those impairments impose on him, which the ALJ failed to properly consider. Pl. Memo of Law [#8-2] at 19.

Next, Plaintiff maintains that the ALJ's Residual Functional Capacity ("RFC") determination was erroneous. On this point, Plaintiff contends that, in addition to disregarding Gaudette's opinion, the ALJ failed to give proper weight to an RFC assessment by psychiatrist Elizabeth Michaels, M.D. ("Michaels"). Plaintiff further states that the ALJ gave undue weight to a single treatment note by Michaels (Dr. Michaels' report dated 9/29/08), which indicated that Plaintiff was doing well, while giving too little weight to Michaels' overall treatment record. Plaintiff also asserts that the ALJ and the Appeals Council failed to properly consider the opinion of Dr. Mark, regarding Plaintiff's chronic knee pain and the effect that it would have on Plaintiff's attention, concentration, and ability to work on a sustained basis.

Finally, Plaintiff contends that the ALJ erred by failing to call a vocational expert ("VE") to testify at the hearing. In that regard, Plaintiff maintains that his ability to perform a full range of sedentary work was significantly eroded by his non-exertional impairments, and that it was therefore erroneous for the ALJ to rely on the Medical-Vocational Guidelines in finding that Plaintiff was not disabled.


Plaintiff was 37 years old at the time of the hearing. (26)*fn1 . Plaintiff dropped out of high school in the Eleventh Grade. Id. Plaintiff's usual work involved landscaping and painting. Id.


Plaintiff spends much of his time during the day attending meetings of Narcotics Anonymous ("NA") and going to appointments for addiction and mental health therapy.

(27). Plaintiff has leg pain throughout the day, but does not take narcotic pain medication because of concerns about his history of addiction and substance abuse.

(33). Plaintiff can sit for at least an hour, and walk for thirty minutes. (30). He does not use a cane or other assistive device. (31). Plaintiff can care for his own personal needs, and also provides some care for his infant child. (28, 30). Plaintiff has a driver's license and takes public transportation by himself. (29). Plaintiff feels depressed four-to five days per week. (32). When he feels depressed, Plaintiff displays Obsessive Compulsive Disorder ("OCD") behavior, such as cleaning and counting his money. (32). Plaintiff has trouble concentrating. (32). Plaintiff has nightmares about physical and sexual abuse that he suffered as a child, and about the death of his six-year-old son, who died after being struck by a car in 2002. (33).


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

On August 30, 2002, Plaintiff was involved in a serious motor vehicle accident ("MVA") which resulted in broken ribs, internal injuries requiring the removal of his spleen, a "tibial plateau fracture [of the right leg], extremely displaced,"*fn2 and a head injury suffered when Plaintiff's head went through the windshield. (198) The tibial plateau fracture required orthopedic surgery to reconstruct Plaintiff's right knee and tibia. (198) Although the surgery was successful, Plaintiff was left with arthrofibrosis, which, due to inflammation and scar tissue, resulted in the development of dense fibrous tissue which restricts the joint.*fn3 (144) As for the head injury, it was "a closed head injury with a small right subdural hemorrhage and some intraventricular and frontal lobe contusions." (213, 257, 264) Following the MVA, Plaintiff complained of "worsening headaches and persistent memory loss," which his physician indicated was "consistent with a post concussive syndrome, which can persist for some time." (204)

On October 4, 2003, Robert Bronstein, M.D. ("Bronstein"), a treating orthopedist, indicated that because of Plaintiff's knee injury, he would never be able to "return to labor intensive work," and "should be retrained for sedentary type work." (144)

On October 10, 2003, Plaintiff was seen at the Clifton Springs Pain Treatment Medicine office by Donovan Holder, M.D. ("Holder"), in connection with his knee pain. (370-372) Plaintiff complained of a "constant intense throbbing sensation" in his knee, and increased pain with walking. (370) Plaintiff admitted to being a heavy drinker, but claimed that he had not consumed alcohol for ten months. (371) Holder presribed Neurontin, Pamelor, Lidoderm patches, and a TENS unit. (372)

On May 15, 2005, Plaintiff was involved in an all-terrain vehicle ("ATV") accident in which he injured his leg and head, and apparently lost consciousness. (332) Plaintiff was brought to the emergency room ("ER") on a backboard. (332) A CT scan of Plaintiff's head showed "no acute changes." (333, 337)

On November 8, 2005, W. Glenn Jamison, M.D. ("Jamison") completed a discharge summary after Plaintiff completed a five-day stay at Clifton Springs Hospital, where he was admitted for depression and suicidal thoughts. (412) Plaintiff reported "occasional falling with head injuries while drunk." (412) Jamison indicated that Plaintiff seemed depressed upon admission, but that "[i]mmediately following detox, he was basically euthymic and free from any depression." (413) Jamison diagnosed Plaintiff with polysubstance dependence, major depression, post-traumatic stress disorder ("PTSD"), and personality disorder NOS [not otherwise specified] with impulsive and passive traits." (413)

On September 14, 2005, Plaintiff went to the ER for recurrent vomiting, which he attributed to "being out of control with drug and alcohol use, including heroin." (328) Plaintiff reported being addicted to heroin and having a history of alcoholism and depression. (328)

In January 2006, Plaintiff underwent a two-day neuropsychology exam by Gaudette. (584-590). The evaluation was requested by Finger Lakes Alcoholism Counseling and Referral Agency ("FLACRA"), in connection with Plaintiff's drug and alcohol rehabilitation treatment. Gaudette conducted a clinical interview and conducted a variety of tests, including the Wechsler Adult Intelligence Scale -III, Wechsler Memory Scale - III, and Beck Depression Inventory - II. (585) Gaudette indicated that Plaintiff was cooperative and showed good effort on the testing, and that the test results were therefore considered reliable and a valid estimation of Plaintiff's cognitive functions. (586) Gaudette reported that Plaintiff seemed to be in a pleasant mood, but his facial affect was restricted and he seemed dysphoric. (586) Gaudette observed that Plaintiff was taking psychotropic medications and receiving ongoing counseling. (589) Gaudette noted that Plaintiff had a history of head injuries, including an MVA in 2002, an ATV accident, and a couple of instances where he was assaulted. (585) Plaintiff reported difficulty focusing at times, some short-term memory problems, and some difficulty spelling. Id. Plaintiff also reported that he struggled with depression since the death of his son in 2002. Gaudette indicated that Plaintiff's intellectual functioning was in the low-average range. (586) Plaintiff's attention and immediate recall were somewhat impaired and in the borderline range. Id. Gaudette indicated that Plaintiff's results were mostly within normal limits, although his ability to acquire and encode new information was marginal to weak. (588) Gaudette stated that Plaintiff's cognitive impairments might be exacerbated in a real-life work situation. (589) Gaudette indicated that "given [Plaintiff's] cognitive deficits" and the length of time that he had been out of school, it would probably take Plaintiff one to two years to ...

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