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Orton v. Astrue

United States District Court, Second Circuit

July 2, 2013

CARL ORTON, JR., Plaintiff,

PETER L. WALTON, ESQ., CONBOY, MCKAY, BACHMANN & KENDALL, LLP, Watertown, New York, Attorneys for Plaintiff.



FREDCERICK J. SCULLIN, Jr., Senior District Judge.


Plaintiff Carl E. Orton, Jr. brings this action pursuant to the Social Security Act (the "Act"), 42 U.S.C. ยงยง 405(g), 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying him Supplemental Security Income benefits ("SSI").

Currently before the Court are Plaintiff's and Defendant's cross-motions for judgment on the pleadings or, in the alternative, for summary judgment.


A. Procedural history

On January 7, 2009, Plaintiff filed for SSI benefits, citing a learning disability, attention deficit hyperactivity disorder ("ADHD") and post-traumatic stress disorder ("PTSD") as his disabling conditions. See Administrative Record ("AR") at 54-55, 102, 172. Plaintiff alleges a disability onset date of June 30, 2008. See id. The Social Security Administration ("SSA") denied his application on April 23, 2009, see id. at 69; and Plaintiff filed a timely request for a hearing before an administrative law judge ("ALJ") on May 12, 2009, see id. at 73.

On May 26, 2010, Plaintiff appeared before ALJ Koennecke for his initially scheduled hearing. Plaintiff requested and ALJ Koennecke granted him an adjournment to obtain legal counsel. See id. at 24-35. On August 19, 2010, ALJ Koennecke presided over that hearing via video in Watertown, New York. See id. at 12, 94. Plaintiff appeared with his attorney, Peter L. Walton, Esq., and testified. See id. at 12, 35, 38-65. In a decision dated September 20, 2010, ALJ Koennecke denied Plaintiff's application for SSI benefits. See id. at 9, 12-23. ALJ Koennecke stated that she considered the entire record and made the following findings:

(1) Plaintiff had not engaged in substantial gainful activity since December 10, 2008, the date he applied for SSI.
(2) Plaintiff had suffered from the "severe" impairment of "mental retardation, "[1] as that term is used in the relevant SSA regulations.
(3) Plaintiff did not have an impairment or combination thereof that met or medically equaled any listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings").
(4) Plaintiff had the residual functional capacity ("RFC") to perform the full range of work at all exertional levels.
(5) Plaintiff had no past relevant work.
(6) Plaintiff was born on July 4, 1985, and was twenty-three years old on the date he filed his SSI application, which is defined as a younger individual aged eighteen to forty-nine.
(7) Plaintiff had at least a high school education and communicated in English.
(8) Transferability of job skills was not an issue because Plaintiff did not have past relevant work.
(9) Considering Plaintiff's age, education, work experience, and RFC, Plaintiff could perform jobs that exist in significant numbers in the national economy.
(10) Plaintiff had not been under a disability as defined by the Act, from June 30, 2008, the alleged onset date, through September 20, 2010, the date of the ALJ's decision.

See id. at 14-22.

On November 5, 2010, Plaintiff filed a timely request for review of ALJ Koennecke's decision. See id. at 7. By Order dated April 11, 2011, the SSA Appeals Council denied Plaintiff's request for review, thereby making the ALJ's decision the Commissioner's final decision. See id. at 1-4.

On June 7, 2011, Plaintiff commenced this action, taking issue with almost all of the ALJ's findings and arguing generally that they lacked support from the record and were contrary to the applicable legal standards. See Dkt. No. 1. He filed a supporting brief on October 27, 2011. See Dkt. No. 15. Defendant thereafter filed an answer on September 26, 2011, see Dkt. No. 7, and a brief in opposition on December 12, 2011, see Dkt. No. 12.

B. Plaintiff's medical history and hearing testimony

1. Relevant medical history

a. Mercy of Northern New York Behavioral Health

On February 17, 2006, Plaintiff sought mental health treatment at Mercy of Northern New York Behavioral Health ("Mercy BH"). See AR at 255. On March 9, 2006, Plaintiff saw Dr. Lise A. Hall, Psy.D. See id. at 251-53. Plaintiff told Dr. Hall that his parents physically and verbally abused him until the age of eighteen ( e.g., Plaintiff's parents allegedly fed him alcohol every day since infancy). See id. at 251. Plaintiff also reported experiencing nightmares related to the abuse approximately one to two times per week. See id. at 251, 253. He admitted to using cannabis until 2003 and alcohol until 2005. See id. at 251.

According to Dr. Hall's mental status evaluation, Plaintiff's speech, appetite, appearance, and hygiene were normal and his mood was euthymic. See id. at 251-52. He was also oriented in time, day, person, and place, denied suicidal and homicidal ideations, and experienced no hallucinations. See id. at 252. Conversely, Plaintiff's judgment, insight, and impulse were poor, his motor activity was restless, his attention and memory were distracted, and he demonstrated "magical thinking." See id. at 251-52. Dr. Hall, therefore, diagnosed Plaintiff with PTSD, partner relational problem, borderline intellectual functioning (provisional), headaches, cognitive limitations, marital and financial stress, and a Global Assessment of Function ("GAF") score of 55.[2] See id. at 253. In doing so, Dr. Hall noted that Plaintiff did not endorse the full criteria for major depression, bipolar disorder, or any specific anxiety disorder beyond PTSD. See id.

On April 3, 2006, Dr. Michael Camillo, a psychiatrist at Mercy BH, prescribed Plaintiff medication and one-on-one counseling with a clinical therapist. See id. at 254, 256. During the next month, however, Plaintiff attended only two of five individual therapy appointments and one of two medication appointments; and he did not attempt to contact Mercy BH to reschedule those appointments. See id. at 255. Due to Plaintiff's repeated and unexplained absences, Mercy BH discharged Plaintiff from treatment on May 8, 2006. See id.

b. Consultative evaluations

i. Dr. William Kimball, Ph.D.

On March 28, 2009, Dr. Kimball, a consultative psychologist, performed an evaluation of

Plaintiff that included an interview, mental status examination, and administration of a Wechsler Adult Intelligence Scale Fourth Edition ("WAIS-IV") and Wide Range Achievement Test-IV ("WRAT-IV"). See id. at 223-29. During the interview, Plaintiff reported a history of mental health treatment as a child, including Ritalin for ADHD. See id. at 225. He stated that he stopped taking Ritalin when he was approximately ten years old because it was "making things worse." See id. Other than possibly attending school counseling as a child, Plaintiff stated that he had never received psychiatric treatment or been hospitalized for psychiatric reasons as an adult. See id. In addition, Plaintiff told Dr. Kimball that, in high school, he attended special education classes, had some friends, and did not have behavioral issues. See id. at 224. At home, Plaintiff claimed he helped with washing dishes, cleaning, carrying groceries, and other simple chores. See id. at 228. In terms of hobbies and interests, Plaintiff stated that he "love[d] working on cars." See id. at 224. He further maintained that he was close to his grandparents, an aunt, and an uncle; and he had one local friend whom he saw often. See id. at 224-25. Regarding past employment, Plaintiff told Dr. Kimball that he had stocked shelves for three months but had had difficulty with the job and had "got[ten] the numbers backwards." See id. at 225. Likewise, he reported that he had worked at McDonalds but he had had trouble learning new tasks and had performed too slowly. See id.

On the mental status examination, Dr. Kimball observed that Plaintiff was well-groomed and established rapport easily. See id. His speech was easy to understand despite a limited vocabulary. See id. Dr. Kimball also observed no signs of delusions, hallucinations, obsessions, or preoccupations. See id. Plaintiff's affect was positive and appropriate, and he showed a reasonable sense of humor. See id. at 226. He remarked that he enjoyed working on cars and spending time with his girlfriend, their son, and his friend. See id. Plaintiff denied feeling depressed or nervous and commented that his sleeping and eating habits were normal. See id. Further, Dr. Kimball noted that Plaintiff was well-oriented irrespective of his "a low fund of knowledge" ( e.g., he allegedly did not know the name of the president of the United States). See id. He could remember three out of three objects on an immediate and delayed basis but he performed poorly in serial sevens due to arithmetic problems. See id. Plaintiff's insight and judgment were also fair. See id.

Furthermore, Dr. Kimball noted that Plaintiff tried hard during the WAIS-IV intelligence test and demonstrated adequate concentration, focus, and persistence. See id. Plaintiff's scores for verbal comprehension, perceptual reasoning, working memory core, and processing speed placed him in the tenth percentile, at best. See id. Plaintiff's full-scale IQ score of 66 fell between the mentally retarded and borderline range of intelligence. See id. Dr. Kimball noted that Plaintiff had difficulty working at an adequate rate of speed and had poor arithmetic skills. See id. at 227. Similarly, the WRAT-IV indicated academic problems consistent with Plaintiff's poor perceptional skills. See id. at 227-28.

Based on the foregoing, Dr. Kimball opined that Plaintiff "would not be able to read anything meaningful" and had learning problems that "would prevent him from doing jobs other than really concrete jobs that involve[d] no academic skills." See id. at 228-29. He diagnosed Plaintiff with a reading disorder, a math disorder, borderline intelligence, and assessed a GAF score of 55. See id. at 228. In addition, Dr. Kimball remarked that the differentiation between borderline intelligence and mental retardation was difficult to gauge; however, Plaintiff's verbal comprehension skills suggested that he had borderline intelligence with significant learning problems. See id. at 229. He further noted that Plaintiff might need some vocational assistance such as a job coach. See id. at 228-29.

ii. Dr. P. Kudler

On April 20, 2009, Dr. P. Kudler, a psychologist and State agency medical consultant, completed a Psychiatric Review Technique Form ("PRTF") and a mental residual functional capacity assessment ("Mental RFC") for Plaintiff. See id. at 230-46. In the PRTF, Dr. Kudler assessed that Plaintiff suffered perceptual or thinking disturbances and memory impairment. See id. at 231. Dr. Kudler also opined that Plaintiff had mild restriction in his activities of daily living, mild difficulties maintaining social functioning, mild ...

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