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Sharon M. Kovarik v. Michael Astrue

August 15, 2012

SHARON M. KOVARIK, PLAINTIFF, -
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Neal P. McCURN, Senior District Court Judge

MEMORANDUM - DECISION AND ORDER

This action was filed by plaintiff Sharon M. Kovarik ("plaintiff") pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner ("Commissioner") of the Social Security Administration ("SSA"), who denied her application for disability insurance benefits ("DIB"). Currently before the court is plaintiff's motion for judgment on the pleadings (Doc. No. 12) seeking reversal of the Commissioner's decision with a finding of disability and a remand for the purpose of determining benefits, or in the alternative, an order of remand for further administrative proceedings. Also before the court is the Commissioner's motion for judgment on the pleadings (Doc. No. 15) seeking affirmation of the Commissioner's findings. For the reasons set forth below, the Commissioner's motion is granted, and plaintiff's motion is denied.

I. Procedural History and Facts

A. Procedural History

On September 25, 2000, Kovarik filed for DIB, alleging a disability onset date of April 1, 1993. The application was denied initially and on reconsideration. On January 29, 2002, a hearing was held before Administrative Law Judge Franklin T. Russell ("ALJ Russell"). On August 29, 2002, ALJ Russell issued an unfavorable decision against Kovarik. On October 17, 2002, the Appeals Council concluded there was no basis under the regulations to grant Kovarik's request for review, thus rendering ALJ Russell's decision the final decision of the Commissioner. Kovarik filed a complaint with this court on September 11, 2003 ("the 2003 case".)*fn1

On February 19, 2008, the Magistrate Judge assigned to the 2003 case filed a comprehensive and thoughtful Report- Recommendation, recommending that the Commissioner's decision denying disability benefits be affirmed. Plaintiff filed a timely objection, bringing to the court's attention that the ALJ presiding over plaintiff's hearing, ALJ Russell, was reprimanded by the SSA for a litany of violations (see Doc. No. 31 in Case 6:03-cv-01114-LEK-RFT ). Accordingly, the SSA Office of Hearings and Appeals authorized "voluntary remands of all pending district court cases in which ALJ Russell was the deciding official for a new hearing before a different ALJ." Id. The district court noted the voluntary remand agreement of the SSA, and stating that "the Court does not reject the Report-Recommendation because of any flaw in the Report-Recommendation, but because of new information about ALJ Russell," the case was remanded on March 6, 2008 for a hearing before a different ALJ. Doc. No. 32.

By letter dated May 12, 2009, Administrative Law Judge Elizabeth Koennecke (the ALJ") informed plaintiff's counsel that she was instructed by order of the SSA to offer plaintiff a supplemental hearing. Tr.*fn2 463. Responding by letter on May 29, 2009, counsel for plaintiff requested the supplemental hearing, and asked the ALJ if he could provide additional medical records. Counsel stated that he trusted that "any medical evidence submitted after the date last insured would not be considered relevant" but asked if the ALJ would "consider such evidence to document the conditions that existed prior to the date last insured." Tr. 465. The ALJ responded with "[w]hat I am trying to avoid is the mindless submission of updated treatment notes in a case with a remote date last insured; which is so often the case." Tr. 465. The ALJ requested that if counsel was submitting any evidence that falls after the date insured, he should be sure to indicate why it is relevant to the period at issue by way of a letter brief. The court notes that there are over 200 pages of medical records in the administrative transcript dated after plaintiff's date last insured, with no meaningful explanation by plaintiff's counsel as to the relevancy of the medical evidence. The court has dutifully read every page, and finds the information largely irrelevant to the relevant time period in the instant case.

B. Facts

A hearing was held before the ALJ on November 10, 2009. The ALJ held a video hearing, with the plaintiff appearing in Binghamton, NY, and the ALJ presiding over the hearing from Syracuse, NY. The ALJ issued an unfavorable decision on December 9, 2009. That decision, which the Appeals Council declined to review, is the final decision of the Commissioner. Plaintiff commenced this civil action on May 3, 2011, seeking judicial review of the Commissioner's final decision.

The court presumes familiarity with the underlying facts of this case, as succinctly set forth in the Report and Recommendation in the 2003 case, which considered the same time period at issue in the case currently before the court. The court will reiterate certain facts as necessary. The following additional facts are taken from the plaintiff's statement of the facts, which is incorporated by reference by the Commissioner with the exception of any inferences, suggestions or arguments therein. Where pertinent facts are missing, those facts are drawn from the Report-Recommendation in the 2003 case.

Plaintiff was born on August 13, 1946, and was fifty-fours years old when she filed her application for benefits. Plaintiff has her high school degree. Plaintiff was last insured on June 30, 1998. She alleges she has suffered from panic disorder, anxiety attacks and depression since 1965, when she was 19 years old. She last worked in a bakery in 1993, when her panic attacks reappeared, and while she was also suffering from insulin dependent diabetes mellitus, obesity, hypertension, and degenerative joint disease. She was treated for her mental disorders in Binghamton, New York in 1965 and treatment has been continuing since 1981, with plaintiff consulting several psychiatrists and psychologists. Plaintiff was treated at the Guthrie Clinic and Robert Packer Hospital Behavior Science Unit, Sayre, Pennsylvania. On May 3, 1998, plaintiff went to the emergency room with high blood pressure, and subsequently alleged that she suffered a "mini stroke" which caused memory loss, physical problems including a tremor and unsteady gait, dizzy spells/ disequilibrium.*fn3

II. Discussion

Plaintiff first submits that the ALJ erred when she failed to give appropriate weight and credibility to the treating source opinions of Drs. Ryan, Kumar, Litchenstein [sic], Nedelcu and Fahmy, and failed to identify any objective medical evidence to rebut their findings. Next, she argues that the ALJ failed to fulfill her affirmative duty to assist the claimant in development of the record, failed to consider the plaintiff's combination of impairments, and placed improper reliance on the grids. Finally, plaintiff argues that the ALJ failed to properly address the testimony of plaintiff regarding her usual daily ...


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