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James H. Aregano v. Michael J. Astrue

July 30, 2012


The opinion of the court was delivered by: William G. Young, United States District Judge.*fn1



James Aregano brings this action under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("the Commissioner") that denied his claims for Social Security Supplemental Security Income ("SSI"). Compl., ECF No. 1.

A. Procedural Posture

James H. Aregano ("Aregano") applied for SSI on January 26, 2007, alleging disabilities beginning on December 31, 2006. Admin. R. 87-89. On January 27, 2007, the Social Security Administration field office conducted an in-person interview with Aregano. Id. at 95-108. The interviewer recommended denying disability, but noted that Aregano was "very immature and seemed to have a difficult time concentrating." Id. at 97. "He also had difficulty remembering things." Id. In developing the Work History, the interviewer noted that "due to his condition[,] [Aregano] could not recall all the different jobs he had." Id. at 98. Aregano reported that he cannot remember things and that "[t]hings always seem to become confrontational with employers." Id. at 100. Aregano reported dealing with his illnesses by "chang[ing] jobs often." Id. Aregano appealed his initial denial of disability benefits, and after a hearing and interview via video teleconference, the administrative law judge (the "hearing officer") found Aregano not disabled as there are a significant number of jobs in the national economy that he can perform. Id. at 16-17. Aregano requested a review of the hearing officer's decision, id. at 4-6, and the Social Security Appeals Council denied Aregano's request. Id. at 1-3.

Aregano subsequently filed a complaint appealing the hearing officer's decision in federal district court. Compl. 1. The government filed an answer, ECF No. 11, and both sides filed briefs, Pl.'s Tr. Br., ECF No. 15; Def.'s Opp'n Br. Accordance N.D.N.Y. General Order 18, ECF No. 16. On April 20, 2011, the case was reassigned to this Court. Reassignment Order, ECF No. 19.

B. Factual Background

In his request for a hearing, Aregano complained of disabilities related to his car accident, and "mental illness." Admin. R. 54. Aregano is currently thirty-six years old. Id. at 87. In 1996, Aregano suffered a traumatic brain injury as a result of a motor vehicle accident where he was ejected from the vehicle.*fn2 Id. at 166. Initially, he had significant physical and cognitive issues related to the accident, id. at 171, 188, 192-94, but his condition improved with medical treatment, e.g., id. at 195. He also has an extensive history of alcohol and substance abuse. Id. at 226-27.

1. Physical Impairments

a. Treating Physicians

On March 11, 2002, a physician at the Oneida Medical Imaging Center examined Aregano's left shoulder, took an MRI, and found "mild impingement of the left [Acromio Clavicular Joint] upon the supraspinatus," but that the shoulder was "otherwise, unremarkable." Id. at 217 (relating impressions in a letter to Dr. Seelan Newton, M.D., on February 27, 2007).

On January 7, 2005, Aregano saw Dr. Seelan Newton, M.D. ("Dr. Newton"), for an allergy attack and swelling of his hand. Id. at 259-60. Aregano reported a car accident in December 2004 where he injured his left hand. Id. Dr. Newton prescribed Naprosyn and Lortab for pain.*fn3 Id. An x-ray taken after the accident showed no obvious fracture, and Dr. Newton recommended a new x-ray to rule out a stress fracture. Id. In early April 2005, Aregano twice requested refills for the Lortab but was refused by office staff because he recently received a refill and should have had numerous tablets remaining. Id. at 256-57. On April 15, 2005, Dr. Newton examined Aregano and he again noted tenderness in Aregano's left hand, recommending continued use of Lortab tablets. Id. at 254-55.

On May 22, 2006, Aregano reported to Dr. Keith L. Harden, M.D. ("Dr. Harden"), that he had chronic pain in his left shoulder, left ankle and lower back and requested a Lortab refill. Id. at 252. In July 2006, Dr. Newton examined Aregano's right wrist for pain, numbness, and tingling and prescribed a wrist splint, Naprosyn 500 mg, and Lortab as needed. Id. at 249-50. Dr. Newton described Aregano's right wrist problem as "likely carpel tunnel syndrome." Id. at 250. On August 8, 2006,

Aregano reported no further wrist pain, as he did not work in heavy construction any longer and declined further evaluation for the condition. Id. at 247

On September 19, 2006, Aregano reported knee pain to a medical practitioner and was prescribed 650 mg of Tylenol three times per day. Id. at 222. On January 17, 2007, Dr. Rathika Martyn, M.D. ("Dr. Martyn"), refilled Aregano's prescription medications, gave him one month of Lortab, and asked Aregano to follow up with Dr. Newton.*fn4

In February 2007, Dr. Newton saw Aregano several times for chronic pain in his left ankle and left shoulder. Id. at 238-42. Dr. Newton noted chronic tenderness in the left ankle on his lateral malleolar area and posterior tibial-fibular area, but a fair range of motion with fair flexion, extension and lateral rotation. Id. at 242. Aregano reported that his ankle bothered him all of the time, especially when working out. Id.

Similarly, his shoulder pain bothered him especially when weightlifting. Id. On February 1, 2007, Dr. Newton prescribed Celebrex, an anti-inflammatory, and Ultram, an opiate agonist for pain. Id. at 243. A few days later, a Senior Referral Specialist reportedly received a phone call alleging that Aregano was selling hydrocodone pills. Id. at 240. On February 15, 2007, Aregano requested a refill for the Lortab and Dr. Newton's office declined as he was two weeks early. Id. at 239.

b. Consulting Physician

Dr. Kalyani Ganesh, M.D. ("Dr. Ganesh"), consultatively examined Aregano on March 22, 2007. Id. at 283. Aregano complained to Dr. Ganesh of chronic left ankle pain, a shoulder problem, back pain, and pain in his hands. Id. Aregano reported he was taking hydrocone, and Tylenol with Codeine No. 3 for pain. Id. Aregano reported having pain in his left ankle all the time, especially when the weather changed or it was cold. Id. Dr. Ganesh found no abnormality in Aregano's spine, and a full range of motion in his extremities, including shoulders, ankles, and wrists. Id. at 285. A subsequent x-ray of Aregano's left ankle by Dr. Pesho S. Kotval, M.D., Ph.D., found a small avulsed body distal to the top of the medial malleolus, but no soft tissue swelling. Id. at 287. Radiographically, the ankle was unremarkable. Id. Dr. Ganesh concluded that with "[v]ery limited information available from [Aregano]," he found "no gross physical limitation . . . to sitting, standing, walking, or use of upper extremities." Id. at 286.

2. Mental Impairments

The state disability office made several unsuccessful attempts to secure records of Aregano's psychiatric care. A request for records from Madison County Mental Health was answered with a notation that Aregano received no services in 2005 or 2006. Id. at 274. A request of the Onondaga County Correctional Medical and Behavioral Health Services in Syracuse, New York was returned with a notation that the records requested had been destroyed as the facility "only keep[s] records for fifteen years."*fn5 Id. at 273.

a. Treating Physician

Aregano was treated at the Oneida Indian Nation, seeing Dr. Thomas Schwartz, M.D. ("Dr. Schwartz"), and a licensed mental health social worker. Id. at 224. In the earliest available record, Dr. Schwartz treated Aregano for Anxiety Disorder NOS and Personality Disorder NOS.*fn6 Id. at 232-33. Initially, Dr. Schwartz prescribed Prozac. E.g., id. at 232 (noting that Aregeno felt Prozac was "somewhat helpful" in September 2006). After Aregano stopped taking Prozac because "it was slowing him down," Dr. Schwartz prescribed Abilify in January 2007. Id. at 229-30.

Aregano also has medical records of treatment from a correctional facility. At the Central New York Psychiatric Center, Aregano received a screening on March 23, 2009 and March 29, 2008, and was diagnosed with adult antisocial behavior. Id. at 335, 337 (citing the Diagnostic and Statistical Manual of Mental Disorders, 4th Ed., ("DSM-IV") codes V71.09). He was admitted as an outpatient on April 9, 2009, and then diagnosed with antisocial personality disorder, mood disorder, and polysubstance abuse. Id. A month later, he was screened again and removed from outpatient care. Id. In July, he was admitted to outpatient care again with the same diagnosis as in April.

Id. Each time he was admitted for care, he was upgraded to "Level 3" treatment, which means the patient "[n]eeds/may need short-term chemotherapy for disorders such as anxiety, moderate depression, or adjustment disorders, OR suffers from a mental disorder which is currently in remission and can function in a dormitory facility which has part-time Mental Health staff." Id. at 334.

b. Consulting Physicians

Dr. Jeanne A. Shapiro, Ph.D. ("Dr. Shapiro"), conducted a consultative examination of Aregano on March 22, 2007. Id. at 278-82. After recording his medical history, Dr. Shapiro found that Aregano was fully oriented but that "[h]is attention and concentration was mildly impaired possibl[y] due to past head trauma." Id. at 280. Dr. Shapiro observed that Aregano's thought process was coherent, goal oriented, and showed no evidence of disordered thinking. Id. Aregano had difficulty with subtraction and serial threes. Id. His memory skills were mildly-moderately impaired, and he was able to recall three objects immediately and one after two minutes, restate four digits forward, and two digits backwards. Id. Dr. Shapiro estimated that Aregano's intellectual functioning was "in the deficient range." Id. at 281.

Dr. Shapiro reported that Aregano had anger problems and that he stated he lost jobs "because sometimes he does not want to go and because work bores him." Id. at 279. Aregano reported being able to dress, bathe, groom himself, cook, shop, and drive. Id. at 281. Dr. Shapiro concluded that he was "incapable of managing money because of poor calculation skills and other cognitive deficits." Id. In her medical source statement, Dr. Shapiro noted that Aregano appeared "capable ...

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