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Richard Radlinsky v. Michael J. Astrue

September 13, 2012

RICHARD RADLINSKY, PLAINTIFF, -
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Neal P. McCurn, Senior United States District Judge

MEMORANDUM-DECISION and ORDER

This action was filed by plaintiff Richard Radlinsky ("plaintiff") pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner ("the Commissioner") of the Social Security Administration ("SSA"), who denied his application for Disability Insurance Benefits ("DIB"). Currently before the court is plaintiff's motion for judgment on the pleadings (Doc. No. 10) seeking rescission of the Commissioner's August 23, 2010 decision, with a finding that plaintiff has been under a disability within the meaning of the Social Security Act ("the Act") since February 1, 2002, instead of the disability onset date of April 3, 2007 found by the Commissioner. Also before the court is the Commissioner's motion for judgment on the pleadings (Doc. No. 11) 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

Plaintiff filed a claim for DIB on October 15, 2003, alleging a disability onset date of January 1, 2002. That application was denied initially on January 6, 2004. Plaintiff filed a timely request for a hearing on February 4, 2004. Tr. 32-33. Following that hearing before Administrative Law Judge ("ALJ") Boyer, in a decision dated September 9, 2004, the ALJ determined that plaintiff was not disabled. The appeals council denied review, and plaintiff appealed the decision to this court on May 10, 2005, Dkt. No. 3:05-cv-00562 ("the 2005 case"). The court remanded the case on July 17, 2007 to obtain the testimony of a Vocational Expert ("VE").

In the interim, while the matter was still pending before this court, plaintiff filed a subsequent claim for DIB and Supplemental Security Income ("SSI") dated April 29, 2005. The Appeals Council consolidated the two cases for a hearing which was held on February 15, 2008. Plaintiff appeared with his attorney at that hearing before ALJ Lischak, at which a VE testified.

In his March 28, 2008 decision, the ALJ found that plaintiff had severe impairments consisting of bipolar disorder and alcohol dependence in full sustained remission as of April 3, 2007. The ALJ found that, considering the VE testimony, plaintiff's age, education, work experience, and residual functional capacity ("RFC ")*fn1 and all the plaintiff's impairments, including his substance abuse disorder, there were no jobs that existed in significant numbers in the national economy that plaintiff could perform. However, the ALJ found that prior to April 3, 2007, plaintiff's substance abuse disorder was a contributing factor material to the determination of disability. Accordingly, although plaintiff was found to be disabled as of January 1, 2002, entitlement to a period of disability and DIB benefits was limited to the period after April 3, 2007, when his substance abuse was no longer a contributing factor. Because the ALJ found plaintiff's alcohol dependence to be in full sustained remission as of April 3, 2007, plaintiff's substance abuse was no longer a contributing factor material to the determination of disability, and plaintiff was found to be entitled to DIB as of that date.

Plaintiff requested Appeals Council review, and while the request for review was pending, plaintiff filed a third application for DIB and SSI on May 29, 2008. Following another hearing on July 14, 2010, ALJ Firestone issued a fully favorable bench decision on plaintiff's May 2008 application for benefits, finding plaintiff disabled as of March 29, 2008. ALJ Firestone then reopened plaintiff's prior DIB determination, and by decision dated August 3, 2010, established a new disability onset date of February 2, 2002.

By order dated September 23, 2010, the Appeals Counsel assumed jurisdiction of case, upholding ALJ Lischak's March 28, 2008 decision which determined that plaintiff was disabled commencing April 3, 2007. The Appeals Council then reopened and revised ALJ Firestone's August 3, 2010 decision by order dated August 13, 2010. The Appeals Council found ALJ Firestone's reopening of plaintiff's previous applications for benefits to be improper, and accordingly, reversed the ALJ's established onset date of February 2, 2002. The Appeals Council's decision became the final decision of the Commissioner. Plaintiff filed this civil action on November 22, 2010, seeking judicial review of the Commissioner's decision.

B. Facts

The facts of this case are contained in a 759 page administrative transcript. The court assumes familiarity with the relevant facts based on the well-written and comprehensive Report-Recommendation dated February 27, 2007, in the 2005 civil case (see Dkt. No. 3:05-cv-00562-NPM). Additional facts are taken from the plaintiff's statement of the facts, with the exception of any inferences, suggestions or arguments therein. Plaintiff provides no citations to the administrative transcript. The Commissioner incorporates the facts from the ALJ's March 2008 decision, and also provides a supplement to what the Commissioner alleges are plaintiff's incomplete facts, providing citations to the administrative transcript, and the court includes those facts as it deems they are relevant. The court also includes relevant facts from the record, which this court has reviewed in its entirety.

Plaintiff's date of birth is October 30, 1964, making him 37 years old on January 1, 2002, the alleged onset date of disability. Plaintiff has a high school diploma and a college education. Plaintiff has past relevant work as an engineering technician, inspector and electrical technician. Plaintiff alleges disability arising out of multiple mental impairments including bipolar disorder, anxiety and panic attacks. Plaintiff alleges that he has treated with a number of different physicians for these conditions since at least 1998. An initial evaluation took place by Dr. Mark Simko ("Dr. Simko") on August 4, 1998. At that time, plaintiff told Dr. Simko the details of what plaintiff felt was a three year period of harassment by his neighbors in an apartment complex. Plaintiff asserted that his tires were slashed every Thanksgiving on three consecutive years and alleged, inter alia, that someone was tampering with his car. Dr. Simko noted his preliminary thoughts regarding diagnoses, including possible paranoid ideation, possible delusions, brief reactive psychosis and underlying depressive disorder. Plaintiff's complaints ceased when he moved from the apartment complex. Plaintiff saw Dr. Simko on a few more occasions and thereafter, treated for a number of years with Dr. Blumenthal.

During the period of treatment with Dr. Blumenthal, plaintiff was diagnosed with bipolar disorder and was treated at the Broome County Mental Health Clinic. Upon the retirement of Dr. Blumenthal in 2001, plaintiff was referred for continuation of care back to Dr. Simko, who saw plaintiff again on July 31, 2001. Treatment continued on a regular basis with Dr. Simko through at least August of 2003. Plaintiff has also undergone treatment by his family physician, Dr. Alan Miller ("Dr. Miller").

Plaintiff has had multiple hospitalizations and inpatient treatments for alcohol abuse. The Commissioner posits that the record indicates that plaintiff was abusing alcohol during the relevant period between January 1, 2002 and April 3, 2007, the date plaintiff allegedly ceased abusing alcohol. On July 18, 2002, plaintiff told his treating physician, Dr. Simko, that his drinking had increased in the past few months, to either "one drink per hour," or "five to six drinks per day." Tr. 191. On September 9, 2002, plaintiff told Dr. Simko that "I've been OK since I stopped drinking," one month ago. Dr. Simko noted that plaintiff exhibited no paranoia and his mood had improved. Tr. 189. Plaintiff reported that he was planning to attend job training after the appointment. Id.

On October 10, 2002, plaintiff told Dr. Simko that "I feel better when I'm not drinking." Tr. 188. As of December 12,2002, Dr. Simko noted that plaintiff had stopped drinking, and his symptoms were "much better." Tr. 187. On January 20, 2003, Dr. Simko noted that plaintiff was drinking again, and that his functioning was poor, secondary to alcohol relapse. Tr. 186.

Plaintiff was hospitalized for alcohol rehabilitation treatment at Conifer Park between January 29, 2003 and February 11, 2003. Tr. 150-52. He reported using six to nine shots of rum daily from age 15 to January 26, 2003, age 38. Tr. 150.

Following his release from treatment, plaintiff was evaluated by Florante Tinio, M.D. ("Dr. Tinio"), on February 15, 2003, who noted that plaintiff was neat, had spontaneous speech, well-organized thoughts, no delusions or hallucinations, no suicidal or homicidal ideation, was fully oriented and had intact memory. Tr. 168. Dr. Tinio diagnosed alcohol dependence, posttraumatic stress disorder, and major depression. ...


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