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Ryan J. O'connor v. Commissioner of Social Security

March 19, 2013


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge


Plaintiff Ryan J. O'Connor brought this suit under the Social Security Act ("Act"), 42 U.S.C. §§ 405(g), 1383(c)(3), to review a final determination of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI"). Plaintiff alleges that the decision of the Administrative Law Judge ("ALJ") denying the applications for benefits is not supported by substantial evidence and contrary to the applicable legal standards. The Commissioner argues that the decision is supported by substantial evidence and made in accordance with the correct legal standards. Pursuant to Northern District of New York General Order No. 8, the Court proceeds as if both parties had accompanied their briefs with a motion for judgment on the pleadings.


On the alleged onset date of February 22, 2008, Plaintiff was 26 years old. T 76. Plaintiff reported past work as a custodian and satellite TV technician. T 80. Plaintiff's date last insured is December 31, 2013. T 26.

A. Educational Background

Throughout highschool Plaintiff was in special education classes. T 85. On June 8, 1998, the Committee on Special Education determined Plaintiff was "emotionally disturbed" and recommended "specialized supplementary instruction[,]" "instruction from a special education teacher[,]" and resource room. T 124, 126. In 1998, an individualized education program report from when Plaintiff was in 9th grade noted that Plaintiff received time limit extensions for one period, test items read, answers recorded in an alternate manner via a word processor, and he was allowed to use a calculator or arithmetic tables. T 132. Plaintiff was also noted to be in resource room for the year for forty minutes a day, five days a week, as well as counseling one day a week for forty minutes. T 132. The report noted that Plaintiff "seem[s] disjointed" when making conversation. T 133. He also was noted to "need assistance in spelling, grammar, and punctuation" and had "difficulty condensing material into important notes." T 133. Additionally, Plaintiff was noted to have "often illegible" handwriting and needs "assistance in refocusing on the tasks he is working on." T 133. Further, it was noted that his full-scale IQ score was 88, and he was "slow" in math and written expression. T 134. Plaintiff was further noted to "nee[d] help attending to the tasks he is working on" and "organizing his thoughts[,]" notebooks, "and the information he knows." T 134. In April 2000, school psychologist, Karen Gwilt, evaluated Plaintiff. T 161-64. On examination, Ms. Gwilt found that "discrepancies in his intellectual and achievement testing . . . indicate that there is a physical base to his learning problems in school." T 163. She further found that Plaintiff "remains highly distracted by both internal and extern stimuli[,]" his "reality testing remains poor[,]" and he "feels overwhelmed and anxious." T 163. Additionally, she noted that he "exhibit[s] obsessive and ruminative qualities wherein once he is troubled by a person or situation he has difficulty thinking of anything else." T 163-64. She opined that he was "appropriately identified [as] [l]earning [d]isabled[,]" "[v]isual motor speed is a relative weakness[,]" and "spelling and writing are particularly difficult" for him. T 163. Ms. Gwilt stated that Plaintiff "remains eligible to be identified [e]motionally

[d]isturbed[,]" and recommended that he continue resource room and counseling. T 164. Plaintiff is a highschool graduate, T 219, and also has two years of college education.

T 85. Plaintiff completed Adult Training in computer technology through B.O.C.E.S., as well as part of the two-year computer networking program at ITT Technical Institute. T 238.

B. Medical Background

On August 29, 2003, Plaintiff was treated at the emergency room by Phillip R. Tatnall, M.D., after he had a "terrible headache [and] loss of consciousness" T 167. On examination, Dr. Tatnall found Plaintiff "speaks in one-word responses and . . . it [was] quite hard to understand" him. T 167. Dr. Tatnall diagnosed Plaintiff as suffering from "loss of consciousness secondary to right-sided headache which persists and is of unclear etiology." T 168. On August 31, 2003, Plaintiff was discharged from the emergency room. T 165-66. Dr. Kark diagnosed Plaintiff as suffering from migraine headaches and a right temporal lobe seizure. T 165. Dr. Kark prescribed Depakote and Folic acid. T 166. Dr. Kark recommended it was "dangerous for him to drive and do a number of other activities." T 165.

On February 4, 2004, Allan Yozawitz, Ph. D., evaluated Plaintiff for a neuropsychological evaluation. T 237-48. On examination, Dr. Yozawitz found Plaintiff had muscular tension, "a shy and anxious appearance[,]" "a reluctance to guess when uncertain[,]" and "rapid speech." T 241. Additionally, Plaintiff had a "low average [s]entence [r]epetition [t]est performance[,] . . . spelling errors . . . slightly dysfluent oral reading of sentences associated with apparent errors of visuoperception[,] and "poor written expressive skill." T 241-42. Dr. Yozawitz opined Plaintiff would need "a minimally stressful position[;] . . . providing him with tasks that are not acutely time sensitive"; and he could not work in a noisy environment or one that required multitasking. T 248. On review of Plaintiff's records, "parent report, observation, and . . . questioning[,]" Dr. Yozawitz diagnosed Plaintiff as suffering from Pervasive Developmental Disorder, not otherwise specified, anxiety, anxious/hyper-aroused state, attention dysfunction, obsessive compulsive behaviors, and avoidant behaviors. T 239-40.

On June 4, 2004, Robert Todd, M.D. treated Plaintiff. T 184-88. Dr. Todd diagnosed Plaintiff as suffering from "[b]y history . . . syncope and collapse." T 187. Dr. Todd prescribed Axert and Depakote ER. T 188. On July 30, 2004, Dr. Todd treated Plaintiff for his headaches. T 181. Dr. Todd diagnosed Plaintiff as suffering from a headache syndrome and prescribed Folic Acid, Clonidine, Axert, and Depakote ER. T 181. On January 9, 2008, Plaintiff complained of syncope to Peter Caluwe, N.P. T 205. On examination, Nurse Caluwe found "there are some questionable psychological issues in regard to . . . whether he hyperventilates." T 207. Nurse Caluwe diagnosed Plaintiff as suffering from syncope. T 207.

On January 17, 2008, Plaintiff complained of right knee pain to Karen Sebastian, M.D. T 209. On examination, Dr. Sebastian found Plaintiff's "right knee is a little tender medially and it is a little swollen." T 209. She further found that he was unable "to fully extend at the knee" and "could only bend it to about a little further than 90 degrees" because of pain. T 209. Dr. Sebastian diagnosed Plaintiff as suffering from right knee pain and prescribed crutches, Naprosyn, and Lortab. T 210.

On June 4, 2008, consultative examiner, Kalyani Ganesh, M.D., evaluated Plaintiff for an internal medicine examination. T 215-18. Dr. Ganesh diagnosed Plaintiff as suffering from migraines, and a history of learning disability, back pain, and knee pain. T 217. Dr. Ganesh opined Plaintiff had "[n]o limitation sitting, standing, walking, or the use of upper extremities." T 217.

On the same date, consultative examiner, Dennis Noia, Ph. D., evaluated Plaintiff for a psychiatric evaluation. T 219-22. On examination, Dr. Noia found Plaintiff's "intellectual functioning is estimated to be in the low average range." T 221. Dr. Noia opined Plaintiff "appears to be capable of understanding and following simple instructions and directions." T 221.

On June 12, 2008, State agency review psychiatrist R. Altsmansberger completed a mental Residual Functioning Capacity ("RFC"). T 223-35. Dr. Altsmansberger opined Plaintiff did not have a medically determinable impairment. T 223-35.

On July 23, 2009, Plaintiff complained of vomiting episodes followed by unconsciousness to Francisco Gomez, M.D. T 254. Dr. Gomez diagnosed Plaintiff as suffering from transient alteration of awareness-spells and prescribed Sertraline. T 255. On September 24, 2009, Plaintiff complained of vomiting episodes followed by unconsciousness to Dr. Gomez. T 249. Dr. Gomez again diagnosed Plaintiff as suffering from transient alteration of awareness and suspected "his symptoms are a form of somatization." T 249. Dr. Gomez prescribed Sertraline. T 249.

On September 29, 2009, Plaintiff complained of suffering a fall resulting in right-sided numbness and a severe headache to Sherradyn Mack, P.A. while being treated at the emergency room. T 256. On examination, she noted that a "CT scan of his cervical spine showed . . . [t]here was C5-C6 disc space narrowing, and there were osteophytes encroaching on the left lateral recess." T 257. Physician Assistant Mack diagnosed Plaintiff as suffering from paresthesias on the right side and status post fall. T 257. She prescribed Motrin for his headaches. T 257.

On January 28, 2010 and on April 14, 2010, Plaintiff complained of "episodes with vomiting, followed by unconsciousness" to Susama Verma, M.D. T 259-63. Plaintiff stated "his headaches are transient and occur nearly 3 times per week." T 259. Dr. Verma diagnosed Plaintiff as suffering from transient alteration of awareness-spells and migraine, atypical, vertebrobasilar. T 260, 262. Dr. Verma prescribed Topamax. T 260. On April 23, 2010, Dr. Verma completed a medical source statement based on treating Plaintiff from January 28, 2010 to April 14, 2010. T 264-67. She noted Plaintiff was diagnosed as suffering from transient alteration of awareness-spells, a learning disability, and pervasive developmental disorder. T 264-65. She opined that Plaintiff was seriously limited, but not precluded, in his ability to: remember work-like procedures; maintain attention for two-hour segments; sustain an ordinary routine without special supervision; complete a normal workday and workweek without interruptions from psychologically- based symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; and deal with normal work stress. T 266. She further noted that Plaintiff would need to take 2-3 breaks for 10-15 minutes secondary to his learning disability. T 267. She further opined that Plaintiff was capable of low stress jobs due to his vertebrobasilar migraines as its ...

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