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Wayne Leslie Stokes v. Michael J. Astrue

March 1, 2012


The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:



Plaintiff Wayne Leslie Stokes, brings the above-captioned action pursuant to 42 U.S.C. § 405(g), seeking a review of the Commissioner of Social Security's decision to deny his application for disability insurance benefits ("DIB").


On April 11, 2008, plaintiff filed an application for DIB benefits. (Administrative Transcript at p. 72).*fn1 Plaintiff was 38 years old at the time of the application with prior work experience as driver for a medical transportation service and as a small systems repair technician in the United States Marine Corp. (T. 100). Plaintiff was also a Sergeant with the United States Army and worked as a gunner with heavy weapons in Iraq. Plaintiff claimed that he was disabled, beginning on February 9, 2006 due to migraine/cluster headaches, neck pain, fibromyalgia, high blood pressure, post traumatic stress disorder and low back pain. (T. 81). On September 10, 2008, plaintiff's application was denied and plaintiff requested a hearing by an ALJ which was held on January 9, 2009. (T. 21, 45). Plaintiff appeared with an attorney. (T. 23). On February 10, 2009, the ALJ issued a decision denying plaintiff's claim for benefits. (T. 20). The Appeals Council denied plaintiff's request for review on July 30, 2010 making the ALJ's decision the final determination of the Commissioner. (T. 1-4). This action followed.


In March 2005, plaintiff began treating at the V.A. Medical Center in Syracuse, New York upon referral from his platoon officer for anger control issues. (T. 253). Plaintiff was still on active duty but sent home on disability after being stationed in Iraq. At the time, plaintiff resided with his mother and his three children. Plaintiff expressed problems controlling his temper with his children but denied experiencing any depressive symptoms or difficulty sleeping. Plaintiff was examined by Dr. David Reznik who found plaintiff to be anxious with limited impulse control. Plaintiff was diagnosed with a "significant back injury" and adjustment disorder with anxiety. Dr. Reznik prescribed Klonopin and referred plaintiff to Dr. Donald Blaskiewicz in the neurology clinic.*fn2

On March 21, 2005, Dr. Blaskiewicz examined plaintiff for complaints of numbness in his right leg. The doctor concluded that plaintiff's pain related to blunt trauma to the sciatic nerve from being bounced around on rough roads. (T. 252). Upon review of MRI films, Dr. Blaskiewicz concluded that surgery was not an option and discharged plaintiff from the clinic.

In April 2005, plaintiff began counseling sessions with Salvatore Puleo, a social worker.

(T. 248). Plaintiff claimed that he experienced side effects from his medication including sleep issues. Mr. Puleo described plaintiff as tolerant and less easily frustrated.

In May 2005, plaintiff was examined by Dr. Hilda Vega, a psychiatrist. (T. 247). Dr. Vega noted that plaintiff was taking Prozac*fn3 and Klonopin with some side effects but overall, plaintiff was "calm". Dr. Vega diagnosed plaintiff with anxiety disorder. (T. 245). On May 10, 2005, Mr. Puleo noted that plaintiff was "stable, doing well and engaged" and that he "improved with counseling". (T. 246).

In June 2005, plaintiff appeared for counseling in a "bizarre and robot-like state". Plaintiff described several family stressors including issues with his brother, the possible deportation of his fiancee and financial/legal conflicts with his ex-wife. Plaintiff also experienced significant sexual side effects from his medication. Mr. Puleo noted that plaintiff was diagnosed with ADHD and anxiety. In June 2005, plaintiff was also examined by Dr. David Carter, neurologist, for complaints of neck and low back pain. Plaintiff stated that rest and physical therapy had not abated his pain. Upon examination, Dr. Carter noted that plaintiff had a full range of motion in his neck with mild discomfort and full strength in his extremities. (T. 244). Dr. Carter diagnosed plaintiff with degenerative disc disease in his cervical and lumbar spine but opined that surgery was not an option. Dr. Carter prescribed physical therapy and referred plaintiff to the pain clinic.

In August 2005, Dr. Vega re-examined plaintiff and noted that plaintiff was tired, "could not think straight", frustrated and anxious. Dr. Vega prescribed Trazadone to help plaintiff sleep and concluded that plaintiff was anxious due to his musculoskeletal pain.*fn4 Dr. Vega also referred plaintiff to the pain clinic. (T. 242).

In September 2005, Dr. Debra O'Leary prepared a Primary Care Note after examining plaintiff. Dr. O'Leary noted that plaintiff was a "new patient" in the clinic. (T. 239). Dr. O'Leary noted that plaintiff was still "active military, but he is out for medical and mental health reasons". Plaintiff complained of neck pain, shoulder pain, headaches, sleep issues and numbness in his feet. Plaintiff advised that he was taking several medications for his conditions including Imitrix for his headaches. Dr. O'Leary diagnosed plaintiff with cervical and low back pain, paresthesis, mental health issues and cluster headaches. She ordered tests for plaintiff's blood pressure and modified his medications. Dr. O'Leary would not provide plaintiff with narcotics since his MRI films were benign. She prescribed Mobic and Gabapentin and advised plaintiff to discontinue Imitrix because the headaches were "cluster headaches" and the best treatment was oxygen.*fn5 (T. 238). In September 2005, plaintiff also saw Mr. Puleo who noted that plaintiff was anxious and experiencing nightmares and sexual side effects. Plaintiff also indicated that he was seeking a military discharge due to his medical and family problems.

In October 2005, plaintiff had a follow up visit with Dr. O'Leary complaining of an increase in his symptoms and stated that the Prozac and Trazadone did not agree with him. Dr. O'Leary referred plaintiff for a back consult and EMG. Upon physical examination, Dr. O'Leary noted that plaintiff had a full range of motion in his lumbar spine, he could walk from heel to toe and had a normal gait. Dr. O'Leary diagnosed plaintiff with neck and low back pain, ADD and anxiety. Nerve conduction studies were normal. (T. 235). In October 2005, Mr. Puleo noted that plaintiff had a flat affect and problems focusing and communicating. Plaintiff stated that he was using a TENS unit for his back pain that relieved some pain. (T. 234).

In November 2005, Dr. Vega noted that plaintiff felt that he was not doing very well. He was hearing noises, frustrated, forgetful and had disruptive sleep from sweats and nightmares. Upon examination, Dr. Vega noted that plaintiff was very anxious, overwhelmed and "stressed out". Dr. Vega was concerned because plaintiff was "very very anxious" and therefore, wanted to see plaintiff again in two weeks. Dr. Vega diagnosed plaintiff with Post Traumatic Stress Disorder ("PTSD") (New Onset) and major depressive disorder. She prescribed Effexor and Seroquel and discontinued Trazadone.*fn6 (T. 233).

In December 2005, Mr. Puleo noted that plaintiff was happy because he was relieved from active duty but that plaintiff was unhappy with his status with the National Guard. In addition, plaintiff was experiencing significant family problems and smoking problems. Plaintiff spent his time playing video games until his children returned from school. In December 2005, plaintiff told Dr. Vega that he was "stressed" and "hated life". Plaintiff was under financial strain that was exacerbated by the holidays. In addition, plaintiff's fiancee was facing deportation to Canada.

Dr. Vega diagnosed plaintiff with significant anxiety, post traumatic stress disorder and major depressive disorder. Dr. Vega prescribed Venlafaxine and Quetiapine and opined that plaintiff was not a suicide risk.*fn7 (T. 230).

In January 2006, plaintiff appeared for counseling in a more relaxed state. However, plaintiff claimed that he suffered sexual abuse at age six and recently "harmed" his girlfriend when she attempted to touch him. (T. 228). Plaintiff was experiencing flashbacks and had difficulties sleeping. In January 2006, plaintiff was treated at the pain clinic for low back pain. The doctors prescribed Neurontin and Meloxicam.*fn8

In February 2006, Mr. Puleo reported plaintiff to be irritable and restless. However, in March 2006, Mr. Puleo found plaintiff "jovial" and excited about the possibility of moving to a new home. Plaintiff expressed an interest in obtaining a tattoo to signify his "rebirth" after being discharged from the military. Plaintiff complained of problems in his sex life. (T. 222). In March 2006, Dr. Vega noted that plaintiff's PTSD and Major Depressive Disorder were in remission and in an effort to improve plaintiff's sexual drive, she decreased his medications. (T. 220). In March 2006, plaintiff also treated with Dr. O'Leary for migraine headaches. Dr. O'Leary continued to opine that the headaches were cluster headaches and prescribed Zomig and suggested that plaintiff monitor his blood pressure.*fn9 (T. 219). On March 30, 2006, during his counseling session, plaintiff advised that he hurt his back attempting to be amorous with his girlfriend and continued to complain of sexual side effects that hurt his relationship. Plaintiff indicated that his interests included playing computer games, raising fish, and attending social functions in his spare time. Plaintiff had a new tattoo and was pursuing employment.

In April 2006, plaintiff advised Mr. Puleo that he had married but he was anxious and frustrated with his job search and lack of sleep. In May 2006, plaintiff again complained of his various stressors including employment issues, financial issues and family strains including difficulties with immigration.

In July 2006, plaintiff advised Mr. Puleo that his wife was still in Canada and could not move until he had a job. Plaintiff continued to experience vivid nightmares. In August 2006, plaintiff was treated by Dr. Vega. He reported various stressors including issues with border patrol, financial strains and flashbacks. Dr. Vega opined that plaintiff's PTSD and MDD were still in remission and prescribed Wellbutrin, Effexor and Ambien and advised plaintiff to discontinue the Quetiapine.*fn10 (T. 208). In July 2006, plaintiff also underwent an MRI scan which revealed a small disc protrusion at L5-S1 touching the S1 nerve root. (T. 225).

In October 2006, plaintiff continued to complain of legal and financial problems and noted that his wife and mother were constantly fighting in the home. In February 2007, plaintiff had a follow up visit with Dr. O'Leary. At that time, plaintiff was working as an ambulance driver but was worried about his medications and drowsiness. Dr. O'Leary noted that plaintiff's blood pressure was elevated and prescribed Atenolol and Gabapentin.*fn11 (t. 205). At the end of February 2007, plaintiff told Mr. Puleo that he lost his job because he fell asleep while on duty. (T. 204).

In March 2007, plaintiff participated in a sleep study and was diagnosed with mild sleep apnea which was moderately severe in the supine position. The doctors suggested that plaintiff utilize a CPAP (Continuous Positive Airway Pressure) machine at home.

In April 2007, plaintiff appeared for his counseling session walking with a cane. He was "spaced out" and unable to drive. Plaintiff complained of nightmares, family strains, depression, inactivity and concerns with weight gain. In May 2007, plaintiff told Mr. Puleo that he was busy with projects at home but that he continued to experience financial and legal strains. Plaintiff was pursuing EMT training and a volunteer position with the local Fire Department. Plaintiff asked for, but was denied, a drug holiday. (T. 193). In July 2007, plaintiff had three epidural steroid blocks for his back pain.

In August 2007, Mr. Puleo noted that plaintiff was negative and angered by the fact that he was denied a handicap parking sticker. He continued to have family issues and was distraught over a lost bird. Plaintiff missed his "comrades" and was anxious and tense. In August 2007, Dr. Vega noted that plaintiff was not well, agitated and angry. Plaintiff's mother and wife continued to argue at home, he was depressed and under financial strain. Plaintiff also continued to walk with a cane. Dr. Vega noted that plaintiff was angry, intolerant and volatile and prescribed Depakote, Ambien and Sertraline.*fn12 Dr. Vega also noted that plaintiff's mother was a military veteran and also a patient at the VA center and that plaintiff was only telling "one side of the story".

In September 2007, plaintiff was screened and tested positive for PTSD. (T. 182). The screen involved a series of questions. In response to four questions, plaintiff answered "YES", which resulted in a positive screen. In September 2007, plaintiff appeared for counseling and was described as "depressed". Plaintiff continued to use a cane. Plaintiff stated that he was becoming an EMT but that he could not do anything at home due to his pain. Plaintiff continued to experience stressors with his finances, upkeep of his property and family. (T. 181). In September 2007, Dr. O'Leary completed a form, at plaintiff's request, for his position as a volunteer fire fighter. She opined that he would be restricted in bending and lifting due to his back pain.

In January 2008, plaintiff told Dr. Vega that he was awarded "100% disability by the VA". Plaintiff continued to have problems with his mother but was volunteering as an EMT. Dr. Vega asked plaintiff how his back pain impacted his job and plaintiff responded, "I only do what I can do". Plaintiff was still anxious and his affect was constricted. Dr. Vega opined that plaintiff's PTSD was in remission. Dr. Vega suggested "cross therapy" with plaintiff's mother, who was also her patient. In January 2008, Mr. Puleo reported that plaintiff was less stressed, able to support his family and was taking classes at the local community college.

In March 2008, plaintiff appeared for counseling and was very angry. Plaintiff felt that the VA breached his confidentiality and provided his mother with information that he relayed during counseling and therapy. As a result, his mother left the home causing additional financial strain on the family. (T. 170).

In April 2008, plaintiff appeared at the back clinic with a cane. He was diagnosed with chronic back pain and prescribed methadone, hydrocodone and physical therapy. In April 2008, the records also indicate that plaintiff responded well to the CPAP machine and a full face mask was ordered. (T. 168). In May 2008, plaintiff advised Mr. Puleo that he overdosed on Methadone. Plaintiff completed EMT training, was working as a volunteer fire fighter and planning to attend vocational rehabilitation. He still had family issues and stressors relating to immigration and his wife. (T. 167).

In August 2008, plaintiff was evaluated by Richard W. Williams, Ph.D., at the request of the agency. Dr. Williams conducted a psychological evaluation. (T. 265). Plaintiff complained of flashbacks and nightmares relating to his time in Iraq. Plaintiff described anger issues and claimed that he resolved those issues by shooting an old junk car. (T. 265). Plaintiff's wife lived and worked in Canada and would visit on the weekends. Plaintiff admitted that this upset him. During the week, plaintiff cared for his children and did the chores with his oldest daughter and played video games. Plaintiff appeared for the examination with a cane. He was alert and oriented, his judgment was impulsive but his thoughts were clear and his speech was normal. Dr. Williams found plaintiff's history of anxiety, anger, flashbacks and nightmares to be consistent with the diagnosis of PTSD and noted that plaintiff's course of treatment was appropriate.

On August 15, 2008, H. Ferrin, a non-examining reviewing consultant, prepared a Mental Residual Functional Capacity Assessment and Psychiatric Review Technique. Ferrin opined that plaintiff did not meet any listing and that he suffered from mild restrictions in his activities of daily living and maintaining social functioning and moderate difficulties maintaining concentration, persistence and pace. (T. 278). Ferrin opined that overall there was some psychiatric limitations however, "claimant is viewed as able to understand and remember instructions, sustain attention and concentration for tasks, relate adequately to others, and adapt to changes". (T. 284).

On August 21, 2008, Dr. Justine Magurno performed an orthopedic examination of plaintiff at the request of the agency. (T. 286). Plaintiff complained of constant pain in his back that he described as a 2 or 3 out of 10, with radiating pain to his legs. Plaintiff also complained of cluster headaches, with variable frequency and three or four migraine headaches since 2004. Plaintiff stated that he cooked, cleaned, did laundry, shopped and cared for his children. Dr. Magurno diagnosed plaintiff with low back pain with radicular symptoms, muscle spasms in the legs, neck pain and cluster and migraine headaches. She opined that while his prognosis for his back was poor, it was "good" for headaches with treatment. Dr. Magurno opined that plaintiff had marked limitations in walking, standing, sitting, climbing, lifting, carrying, pushing and pulling and moderate limitations in reaching and bending. (T. 289).

In September 2008, J. Terret, a non-examining reviewing consultant, prepared a Physical Residual Functional Capacity Assessment. The consultant opined that plaintiff could lift and/or carry 20 pounds occasionally and 10 pounds frequently and stand ...

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