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Elder v. Colvin

United States District Court, W.D. New York

March 7, 2014

ROBERT J. ELDER, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Commissioner of Social Security, Defendant.

LAW OFFICES OF KENNETH HILLER JAYA ANN SHURTLIFF, of Counsel Amherst, New York, Attorneys for Plaintiff.

WILLIAM J. HOCHUL, JR., UNITED STATES ATTORNEY, MARY K. ROACH, Assistant United States Attorney, of Counsel, Buffalo, New York, STEPHEN P. CONTE, Regional Chief Counsel - Region II, JASON P. PECK, Assistant Regional Counsel, United States Social Security Administration, Office of the General Counsel, of Counsel New York, New York, Attorney for Defendant.

REPORT and RECOMMENDATION

LESLIE G. FOSCHIO, Magistrate Judge.

JURISDICTION

This action was referred to the undersigned by Honorable Richard J. Arcara on July 27, 2012. (Doc. No. 6). The matter is presently before the court on motions for judgment on the pleadings, filed on January 31, 2013, by Defendant (Doc. No. 12), and on February 7, 2013, by Plaintiff (Doc. No. 15).

BACKGROUND

Plaintiff John Elder ("Plaintiff" or "Elder"), seeks review of Defendant's decision denying him Disability Insurance Benefits ("DIB") ("disability benefits") under, Title II of the Social Security Act ("the Act"), and Supplemental Security Income Benefits ("SSI") benefits under Title XVI of the Act. In denying Plaintiff's application for disability benefits, Defendant determined Plaintiff had the severe impairments of alcohol related seizure disorder, Raynaud's disease, alcohol abuse and depression, but does not have an impairment or combination of impairments within the Act's definition of impairment. (R. 14).[2] Defendant further determined that even if Plaintiff's medically determinable impairments could reasonably be expected to produce Plaintiff's alleged symptoms, their alleged persistence and limiting effects were not credible (R. 17), and that the ALJ's determination that Plaintiff is not disabled factoring in Plaintiff's alcohol abuse, made it unnecessary to further determine whether alcohol abuse was a contributing factor material to the ALJ's disability determination. (R. 20). As such, Plaintiff was found not disabled, as defined in the Act, at any time from the alleged onset date through the date of the Administrative Law Judge's decision on August 26, 2010. Id.

PROCEDURAL HISTORY

Plaintiff filed applications for disability benefits on October 19, 2009 (R. 119-20), and supplemental security income benefits on October 29, 2009 (R. 121-24), alleging disability based on a seizure disorder, Raynaud's syndrome, depression, and lower back and leg neuropathy as of October 21, 2004[3]. (R. 176). Plaintiff's applications were initially denied by Defendant on February 1, 2010 (R. 62), and, pursuant to Plaintiff's request filed March 15, 2010 (R. 72-73), a hearing was held before Administrative Law Judge Robert T. Harvey ("Harvey" or "the ALJ") on August 6, 2010, in Buffalo, New York. (R. 27-61). Plaintiff, represented by Clifford Falk, Esq., ("Falk"), appeared and testified at the hearing. (R. 27-52). Testimony was also given by vocational expert Timothy Janakowski ("Janakowski" or "the VE"). (R. 52-61). The ALJ's decision denying the claim was rendered on August 26, 2010. (R. 9-24).

On September 3, 2010, Plaintiff requested review of the ALJ's decision by the Appeals Council. (R. 117-18). The ALJ's decision became Defendant's final decision when the Appeals Council denied Plaintiff's request for review on February 22, 2012. (R. 3-5). This action followed on April 18, 2012; with Plaintiff alleging the ALJ erred by failing to find him disabled. (Doc. No. 1).

Defendant filed an answer on July 26, 2012 (Doc. No. 5), and on January 31, 2013, filed a motion for judgment on the pleadings ("Defendant's motion"), accompanied by a memorandum of law (Doc. No. 13) ("Defendant's Memorandum"). Plaintiff filed a motion for judgment on the pleadings ("Plaintiff's motion") on February 7, 2013, accompanied by a supporting memorandum of law (Doc. No. 15) ("Plaintiff's Memorandum"). Oral argument was deemed unnecessary.

Based on the following, Defendant's motion should be DENIED, Plaintiff's motion should be DENIED in part and GRANTED in part, and the matter remanded for further development of the record.

FACTS[4]

Plaintiff Robert Elder ("Plaintiff") was born on April 9, 1979. On May 30, 2008, Thomas J. Kufel, M.D. ("Dr. Kufel"), a physician with the VA Medical Center of Buffalo, completed a consultative medical examination on Plaintiff for insomnia, opined that Plaintiff's insomnia and seizure disorder was related to a traumatic brain injury that occurred when plaintiff was 18 years old, noted Plaintiff's blood serum Dilantin level measured at less than.5 mcg/mL, [5] and referred Plaintiff to an insomnia clinic and for psychiatric evaluation. (R. 264). Dr. Kufel noted that Plaintiff's medical history included toxic encephalopathy, seizure disorder, seropositive ana (anti-nuclear antibody testing) with inflammatory arthritis, and lumbar disc disease. (R. 263).

On September 16, 2008, David L. Hallasey, M.D. ("Dr. Hallasey"), completed an annual physical examination of Plaintiff and assessed Plaintiff with tonic-clonic[6] seizure history, knee and hand rheumatoid arthritis, depression, alcohol abuse, Raynaud's disease, and possible lower left rib fracture. (R. 284). Dr. Hallasey referred Plaintiff for brain magnetic resonance imaging ("MRI") and magnetic resonance angiogram ("MRA"), a lower left rib X-ray, and prescribed Citalopram (depression), and Cryoglobulins (Raynaud's), Levetiracetam (seizures), and encouraged Plaintiff to enter alcohol treatment. Id.

On March 28, 2009, Gerald J. Tiballi, M.D. ("Dr. Tiballi"), a physician at Mount St. Mary's Hospital in Niagara Falls, New York, completed a computerized tomography ("CT") scan without contrast[7] of Plaintiff's brain that showed normal results. (R. 210).

On April 20, 2009, Linda A. Hershey, M.D. ("Dr. Hershey"), completed a neurological consultation on Plaintiff, changed Plaintiff's migraine medication from valporic acid to divalproex, and ordered a brain CT scan with contrast and electroencephalography ("EEG") scan on Plaintiff. (R. 252).

On September 23, 2009, Linda S. Fuchs, D.O. ("Dr. Fuchs"), an osteopathic physician, completed a brain MRI on Plaintiff that showed a 3mm polyp on Plaintiff's maxillary sinus. (R. 228). A brain MRA completed and interpreted the same day by Fereidoun Eshfahani, M.D. ("Dr. Eshfahani"), a radiologist in Dr. Tiballi's office, was also normal. (R. 229).

On November 17, 2009, Sherry Withiam-Leitch, M.D. ("Dr. Withiam-Leitch"), a neurologist, completed a peripheral nerve examination on Plaintiff that showed decreased sensation of Plaintiff's L5-S1[8] distribution, and absence of Plaintiff's bilateral ankle reflexes. (R. 350).

On December 21, 2009, Renee Baskin, PhD. ("Dr. Baskin") completed a consultative psychiatric evaluation of Plaintiff and assessed Plaintiff with intact concentration and memory, low to below average intellectual functioning, fair to good insight and judgment, and capable of activities of daily living with limitation to sitting, standing, lifting, and bending, and no history of drug or alcohol abuse. (R. 294-95). Dr. Baskin diagnosed Plaintiff with anxiety disorder not otherwise specified ("NOS"), depressive disorder NOS, seizure disorder and back and leg pain, and recommended Plaintiff continue psychological/psychiatric counseling and enter vocational training. (R. 296). Dr. Baskin opined Plaintiff had no limitation to following simple directions or instructions, performing simple and complex tasks independently, maintaining attention and concentration, maintaining a regular schedule, learning new tasks with supervision, making appropriate decisions, relating adequately with others, and that Plaintiff would have moderate limitation to stress. (R. 295-96). The same day, Kathleen Kelley, M.D. ("Dr. Kelley"), completed a consultative neurological examination of Plaintiff and assessed Plaintiff with intact hand and finger dexterity, normal cervical, head, neck, and lower and upper extremity range of motion ("ROM"), normal gait and station, and normal sensory examination. (R. 298-99). Plaintiff reported his activities of daily living include cooking once per week, no cleaning, laundry or shopping, taking care of personal hygiene, socializing with friends, and writing poetry. (R. 298). Dr. Kelley diagnosed Plaintiff with seizures, migraines, non-specific low back pain discomfort and neuropathy, and alcohol use. (R. 300).

On February 1, 2010, T. Andrews ("Andrews"), a psychologist with the Social Security Administration, completed a psychiatric review technique on Plaintiff and assessed Plaintiff with depressive disorder NOS (R. 304), anxiety disorder NOS (R. 306), no substance addiction disorder (R. 309), and opined Plaintiff's activities of daily living were compromised by Plaintiff's physical, not psychological, problems, and that Plaintiff's psychiatric impairment did not impact Plaintiff's ability to function. (R. 313). The same day, single decision maker ("SDM")[9] J. Cumbo ("SDM Cumbo"), completed a residual functional capacity assessment on behalf of the Social Security Administration, and assessed Plaintiff with the ability to occasionally lift 20 pounds, frequently lift 10 pounds, stand or sit 6 hours in an eight hour day, and unlimited ability to push and pull. (R. 316-17).

On April 17, 2010, Plaintiff after threatening to stab himself (R. 378), was admitted to Veteran's Administration Hospital ("the VA") where Aimee Stanislawski, M.D. ("Dr. Stanislawski") assessed Plaintiff with a Global Assessment of Functioning ("GAF") score of 45, [10] noted Plaintiff was drinking 2 to 6 servings of beer each day, and diagnosed Plaintiff with mood disorder NOS, alcohol abuse and epilepsy. (R. 347). Upon discharge, Plaintiff's medications included Celexa (depression), levetiracetam (Keppra)[11] (seizures), Lidocain (pain), lozepram (anxiety), Meloxicam (arthritis), and Nifedipine (Raynaud's syndrome). (R. 348). Plaintiff remained hospitalized until April 23, 2010, and upon Plaintiff's request for discharge, licensed clinical social worker ("CSW") Linda A. Macaluso ("CSW Macaluso"), assessed Plaintiff with continued high suicide risk, and noted that Plaintiff was not satisfied with his depression and epileptic medications and tearful and anxious about getting a job. (R. 370). During a psychiatric evaluation the same day with Anselm George, M.D. ("Dr. George"), a psychiatrist with the VA, Plaintiff reported he was not satisfied with his neurology treatment at the VA. (R. 368). Dr. George further noted a discrepancy between the VA resident physician's indication that Plaintiff reported he was not satisfied with his Keppra medication, and a note from Dr. Hershey indicating that Plaintiff wished to continue taking Keppra. (R. 368). Dr. George further noted that Plaintiff was not satisfied with the Citalopram medication taken for headaches, and increased Plaintiff's Citalopram dosage from 40 mg to 60 mg. (R. 369).

On May 6, 2010, Julia Gane-Cosimano, a lead care coordinator with the VA, contacted Plaintiff for telephone psychotherapy, and noted Plaintiff reported he had stopped using alcohol for one week, with increased depression, isolation and irritability. (R. 361).

On May 10, 2010, VA CSW Kimberly J. Ingram ("CSW Ingram"), completed a psychological telephone interview with Plaintiff, and opined Plaintiff's insight and judgment were limited by Plaintiff's depression, and that Plaintiff sounded depressed with quiet speech. (R. 360). On May 12, 2010, CSW Macaluso provided vocational counseling to Plaintiff, noting Plaintiff exhibited no suicidal or homicidal intentions, no hallucinations, and congruent mood, but expressed anxiety about home foreclosure and becoming homeless. (R. 358). CSW Macaluso referred Plaintiff to the VA's psychiatric walk-in clinic for counseling.

On May 17, 2010, Dr. George noted Plaintiff reported feeling very poorly, was feeling lost, stayed in the house most days, and frequently experienced disturbing thoughts. (R. 354). After changing Plaintiff's depression medication, Dr. George noted that Plaintiff was scheduled for vocational rehabilitation and opined Plaintiff was not capable of keeping a job. (R. 355).

DISCUSSION

1. Disability Determination Under the Social Security Act

An individual is entitled to disability insurance benefits under the Social Security Act ...


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