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Wilkinson v. Colvin

United States District Court, N.D. New York

May 29, 2014

CAROLYN COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

CHRISTOPHER D. THORPE, ESQ., IACONIS LAW FIRM, Chittenango, New York, Attorneys for Plaintiff.

KAREN T. CALLAHAN, ESQ., SOCIAL SECURITY ADMINISTRATION, Office of Regional General Counsel, Region II, New York, New York, Attorneys for Defendant.


MAE A. D'AGOSTINO, District Judge.


On December 15, 2009, Plaintiff protectively filed applications for both disability insurance benefits ("DIB") and an application for supplemental security income ("SSI"), alleging a period of disability beginning on November 5, 2009. See Administrative Record ("R.") at 157-167. On March 24, 2010, Plaintiff's applications were initially denied, and upon Plaintiff's request, a hearing was held on February 23, 2011. See id. at 86-93, 33. At the hearing, Plaintiff orally amended his alleged disability onset, now claiming a period of disability beginning on October 26, 2009. See id. at 33. Thereafter, the ALJ issued an unfavorable decision on June 24, 2011, finding that Plaintiff was not disabled within the meaning of the Social Security Act (the "Act"). See id. at 13-30.

On August 8, 2011, Plaintiff timely filed a request for review of the ALJ's unfavorable hearing decision. See id. at 10-12. The Appeals Council denied review by letter dated October 1, 2012. See id. at 1-6.

On November 21, 2012, Plaintiff filed a summons and complaint in this Court seeking judicial review of the Commissioner's unfavorable decision. See Dkt. No. 1. The Commissioner filed an answer to the complaint on March 23, 2013. Currently pending before the Court are the parties' cross-motions for judgment on the pleadings. See Dkt. Nos. 17-18.


Plaintiff seeks DIB and SSI benefits alleging that he was suffering with a "disability" within the meaning of the Act since October 26, 2009, due to multiple impairments, including "[b]ack problems, left foot problem[s], lupus, " "[m]ental health problems, " "right knee problem[s], " and "left hand numbness." See R. at 182. Plaintiff was employed as a automobile detailer until November 4, 2009 and remained insured for purposes of the Act through December 31, 2013. See id. at 16.

Plaintiff was born on September 1, 1970. See id. at 84. Plaintiff had a highschool education, and a history of unskilled work, including stocking shelves at several different stores, as a sales associate at a home improvement store, and as a car detailer at a car sales company. See R. at 184. Plaintiff has not been employed since November 4, 2009. See id.

A. Psychological conditions

A "Confidential Medical Report - Psychiatric Disability" was completed on October 22, 2007 by Colleen Miller, LCSW and Steven Adams, Ph.D., Plaintiff's treating therapist and supervising psychologist. See R. at 514-515. Plaintiff was diagnosed with depressive disorder, intermittent explosive disorder, and personality disorder. See id. at 514. Plaintiff's affect was constricted, but could be congruent at times. Plaintiff became agitated when under pressure or when he perceived an injustice towards him. The report noted became enraged and provoked, when most people would ignore the situation, and became verbally abusive. See id. Further, the report indicated that stress affected his personal and work relationships and that he did not respond well to pressure in the workplace. See id. at 515.

On May 19, 2008, Plaintiff began treatment with the Madison County Mental Health Department. See R. at 366. Plaintiff reported to Colleen Miller that he had been terminated from his job because someone had complained about "sexual remarks." Id. At first he indicated that the person who complained about him was a "narc, " but then said that "she was wrong or lied and he had not done or been the one to say sexual things, that it was someone else." Id. In a progress note dated July 23, 2008, Ms. Miller indicated that, as his therapy progressed, Plaintiff reported increased control over his temper and "a significant reduction in incidents of poor anger management." Id. at 369. Ms. Miller noted similar progress being made in progress notes from sessions with Plaintiff from August through December of 2008. See id. at 370-77. On December 1, 2008, although Plaintiff indicated that he needed help with temper control and learning socially acceptable ways to express anger, he refused to attend group anger management sessions because he claimed he was "uncomfortable" in groups. See id. at 376.

Throughout the beginning of 2009, the progress notes indicate that Plaintiff was still dealing with anger management issues, and that he had a tendency to "sound off" when frustrated. See id. at 378-89. In an April 10, 2009 treatment plan review, Gregory Owens, a therapist with the Madison County Mental Health Department, noted that Plaintiff had made "modest" progress with some of his treatment goals, but also noted several areas in which Plaintiff needed to make additional progress. See id. at 389. On August 4, 2009, Plaintiff reported "decreased problems with anger but ha[d] vague complaints of depression." Id. at 385.

On October 26, 2009, Plaintiff refused to complete paperwork prior to his session and was "gruff" with the staff. See id. at 385-86. When asked why he was again seeking treatment, Plaintiff told Dr. Kim Guarascio, Ph.D., that he was "depressed, " and described his symptoms as a lack of motivation to do the things he enjoys. See id. at 386. Further, Plaintiff reported a confrontation with his friends over the weekend, "and had words with one of them while playing dungeons and dragons." Id. During a session on November 9, 2009, Plaintiff informed Dr. Guarascio that he still felt depressed and that he still does not feel like engaging in some of the activities that he used to enjoy ( i.e., playing Dungeons and Dragons and spending time with friends), but admitted that he still does engage in some of these activities. See id. Plaintiff also stated that he is unwilling to take medication and that he is unwilling to attend group anger management session. See id. at 387. Although Plaintiff informed Dr. Guarascio that his goal in attending their therapy sessions was to treat his depression, Dr. Guarascio informed him that "his stated symptoms do not meet diagnostic criteria for depression." Id.

On January 29, 2010, Plaintiff again saw Dr. Guarascio. See id. at 439. Plaintiff again reported that he lacks motivation to do certain things and that he has "some low mood due to his physical problems and stressors." Id. Plaintiff informed Dr. Guarascio that he still does not want to take any medications and that he will not attend group anger management sessions. See id. Plaintiff informed Dr. Guarascio that he "wants a therapist like Greg or Colleen' to just listen to what he has to say and offer advice." Id. When Dr. Guarascio recommended Plaintiff seek treatment with another provider, he refused because he "didn't want to spend the gas money to drive to Syracuse or Utica.'" Id. Dr. Guarascio discussed this issue with Dr. Steven Adams and they decided to inform Plaintiff that "the agency would offer him individual therapy provided that he attend and complete Anger Management Group." Id. at 440. Plaintiff responded that he was unwilling to participate in group anger management sessions. See id. Thereafter, when Dr. Adams informed him that they believed that Plaintiff would not benefit from individual therapy alone, Plaintiff still declined to pursue the recommended treatment and Plaintiff's case was closed. See id. at 440-41.

B. Physical conditions

On August 12, 2008, Plaintiff was examined by Dr. Joseph Pierz, M.D. See R. at 352. Plaintiff complained of "left great toe pain, " which he had been experiencing for a few weeks. See id. Plaintiff was diagnosed with "left great toe gout" and given a prescription to address his condition. See id. at 353-54. Dr. Pierz examined Plaintiff again on August 27, 2008, and Plaintiff was given an injection of Depo-Medrol and Xylocaine. See id. at 355. On September 10, 2008, after his condition worsened, Dr. Pierz performed an excision of the mass on his left great toe. See id. at 335, 357. In a December 24, 2008 follow-up examination, Dr. Pierz noted that Plaintiff continues to have some pain in the left great toe and stiffness of the joint. See id. at 360. Dr. Pierz could not explain why the pain had persisted, but noted that he believed that Plaintiff could go back to work. See id. After several additional appointments and treatment for an ingrown toenail, Plaintiff commenced physical therapy on March 24, 2009. See id. at 362-65, 442, 455-65, 529.

On February 25, 2011, Timothy Damron, M.D., indicated that the toe was "next to impossible to move, " secondary to pain. See R. at 533. X-rays showed "calcification... certainly consistent with cartilage calcification, as would be suggestive of synovial chondromatosis type process." Id. at 535. After a review of a CT scan, diagnosis was synovial chondromatosis, and surgery was indicated, with an anticipated surgery date of March 30, 2011. See id. The surgery was explained as follows: "We do an excision of the soft tissue extensions, as well as an arthrotomy of the joint, debridement of the synovectomy of the joint, and trying to make a volar arthrotomy to get at the deeper soft tissues of the plantar surface. This will be a difficult procedure." Id.

Plaintiff also claims to have injured his back in July of 2006, and, since that time, has had intermittent lower back pain. See R. at 505. On February 5, 2007, Plaintiff was examined by Thomas Haher, M.D., for lower back pain, with radiation and weakness into both lower extremities, and left upper extremity radiation. See id. Plaintiff claimed that the pain was worse with activity, sitting, standing, repetitive motion, bending, lifting, and reaching. See id. Dr. Haher found that Plaintiff's range of motion was moderately reduced in all directions. See id. Dr. Haher also noted that Plaintiff had been treated by a physical therapist and that the previous treatments had "provided some relief of the pain." Id. at 506. Dr. Haher discussed the possibility of surgery with Plaintiff. See id. at 507. On March 1, 2007, Plaintiff again saw Dr. Haher since his symptoms had not improved. See id. at 509. Despite his pain, Plaintiff declined surgery and opted for chiropractic treatment instead. See id. at 511; see also Dkt. No. 17 at 12.

On January 28, 2009, Plaintiff was examined by Dr. Daniel Ratnarajah, M.D., for a "work evaluation." See R. at 468. Dr. Ratnarajah noted that Plaintiff had "multiple vague complaints, including back pain, wrist pain, and toe pain." Id. Given the limited nature of the examination, Dr. Ratnarajah was "unable to evaluate his functional capacity, " and, therefore, referred Plaintiff to physical therapy to do a formal functional evaluation. See id. On March, 24, 2009, Plaintiff was examined by Dianne Fukes, a physical therapist at the Oneida Healthcare Center. See id. at 469-71. Plaintiff complained of, among other things, lower back pain, which was exacerbated by bending forward, lifting and sitting for longer than one (1) hour. See id. at 469. Ms. Fukes determined that Plaintiff "demonstrated the ability to lift medium workloads with fair body mechanics. His pain responses to lifting appeared exaggerated.... His overall flexibility is reduced in the spine and lower extremities. This client would best function in a workplace that limited lifting and allowed for frequent position changes." Id. at 470-71.

In February of 2010, Plaintiff was referred to Dr. Kalyani Ganesh for a physical examination by the Division of Disability Determination. See R. at 402-05. Upon completion of the examination, Dr. Ganesh summarized the findings as follows: "No gross limitation sitting, standing, or the use of upper extremities. The claimant was observed interacting with his 4-year-old ...

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