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Borovicka v. Commissioner of Social Security

United States District Court, N.D. New York

February 19, 2015

JOHN BOROVICKA, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

PETER A. GORTON, ESQ., LACHMAN & GORTON, Counsel for Plaintiff, Endicott, New York.

JEREMY A. LINDEN, ESQ., OFFICE OF GENERAL COUNSEL, Social Security Administration, Office of Regional General Counsel, Region II, New York, New York.

REPORT AND RECOMMENDATION

THÉRÈSE WILEY DANCKS, Magistrate Judge.

This matter was referred to the undersigned for report and recommendation by the Honorable Lawrence E. Kahn, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3. This case has proceeded in accordance with General Order 18 of this Court which sets forth the procedures to be followed when appealing a denial of Social Security benefits. Both parties have filed briefs. Oral argument was not heard. For the reasons discussed below, it is recommended that this matter be remanded to the Commissioner.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Background

Plaintiff is thirty-four years old. (T. at 30.[1]) Plaintiff graduated from the twelfth grade in 1988 and joined the military from 1988 to 1991 as a heavy equipment operator in the Gulf War. (T. at 31, 41, 45.) Plaintiff served in the military again from 1997 to 1998. (T. at 211.) Plaintiff testified that his working disability arose from being in the military. (T. at 31.) During his first tour he was charged with insubordination and during his second tour he was charged with disorderly conduct after drinking and becoming out of control. (T. at 211.) In 1998, Plaintiff was hospitalized for a suicide attempt. Id. In 2008, Plaintiff overdosed on medication twice and claimed he was "depressed, with frequent crying, [had] difficulty sleeping, excessive irritability and loss of appetite." Id.

After an honorable discharge from the military, Plaintiff took a number of jobs that he could not remember at the time of his hearing. (T. at 35). Plaintiff testified that he most likely held ten jobs in the last ten to fifteen years. Id. Plaintiff's longest job after his military service was at a plumbing company, Mr. Rooter Plumbing, where he was fired after three years of full-time work for getting into a physical altercation with his boss. (T. at 34-35.) Plaintiff testified that he had held positions at two other plumbing companies and for a contractor as a heavy equipment operator. (T. at 34, 43.) He was either fired or he quit his job at Water Works because of a dispute with the owner, and at Drain Masters because of an altercation while working. (T. at 34.) Plaintiff claimed that "[e]very single job has ended like that." (T. at 35.) These jobs usually only lasted weeks. (T. at 34.)

At the time of the hearing, Plaintiff was employed at Sears delivering appliances. (T. at 31.) He worked two days a week for eight hours each day. (T. at 32.) On these days, Plaintiff spent most of his time in a delivery truck with one other Sears employee. (T. at 32-33.) Plaintiff had missed four days of work in three months due to "severe agitation" and "emotional problems." (T. at 31-32.) He claims that he is "angry, depressed, very unmotivated" at the end of each work week. (T. at 32.)

On June 3, 2010, Plaintiff was examined by psychologist Dr. Gail Oswald in order to determine whether Plaintiff's claimed anxiety and depression were related to his military service. (T. at 208-09). Dr. Oswald noted that Plaintiff's primary care physician was currently prescribing him antidepressants, that he showed signs of obsessive/ritualistic behavior, had infrequent thoughts of suicide, had angry outbursts two to three times a week, and suffers moods that "result in poor motivation and/or irritability that interferes with most activities to some extent." (T. at 213-216.) Dr. Oswald concluded that Plaintiff's "claimed depression [was] a progression of his in service psychiatric treatment" and that "his... symptoms [were] most likely a progression of the mental disorder for which he was first treated while he was in the military service." (T. at 219.)

On September 2, 2010, Plaintiff underwent a psychiatric evaluation by psychologist Sara Long, Ph.D. (T. at 232.) Dr. Long noted that Plaintiff was "generally hostile throughout the evaluation" but was "capable of adequate social skills." (T. at 233.) During the evaluation, Plaintiff "[did] not present as depressed, " but Dr. Long listed the obsessive-compulsive disorder ("OCD") symptom of anger. (T. at 234.) Dr. Long described Plaintiff's psychiatric problems as possibly interfering with his ability to function on a regular basis, and ultimately diagnosed Plaintiff with impulse control disorder and OCD, without ruling out posttraumatic stress disorder and dysthymic disorder. (T. at 235.) On the same day, Plaintiff was also examined by Dr. Justine Magurno, a medical doctor, for a physical examination. (T. at 237-240.) Dr. Magurno diagnosed Plaintiff with hypertension, tobacco abuse, and obesity, and acknowledged his history of depression, anxiety, and OCD. (T. at 239.) Dr. Magurno identified no physical limitations. Id.

On September 13, 2010, a psychiatric review was completed by T. Harding, Psychology. (T. at 241-259.) This review categorized Plaintiff's mental issues as anxiety-related disorders and personality disorders, specifying OCD and impulse control disorder. (T. at 241, 246, 248). Plaintiff's functional limitations included a mild degree of limitation on his activities of daily living, a moderate degree of limitation in maintaining social functioning, a moderate degree of limitation in maintaining concentration, persistence or pace, and one or two repeated episodes of deterioration of extended duration. (T. at 251.) Harding determined that Plaintiff's understanding and memory were not significantly limited. (T. at 255.) However, Plaintiff was moderately limited in sustained concentration and persistence in his ability to maintain attention and concentration for extended periods, his ability to sustain an ordinary routine without special supervision, his ability to work in coordination with or proximity to others without being distracted by them, and his ability to complete a normal workday and workweek without interruptions from psychologically based symptoms, and to perform at a consistent pace without an unreasonable number and length of rest periods. (T. at 255-256.) Plaintiff's social interactions were also moderately limited in his ability to interact appropriately with the general public, his ability to accept instructions and respond appropriately to criticism from supervisors, and his ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. (T. at 256.) Plaintiff was not significantly limited in any other areas. (T. at 255-256.) Finally, Plaintiff's adaptation skills were moderately limited in the ability to respond appropriately to changes in the work setting and the ability to set realistic goals or make plans independently of others. (T. at 256.) Harding noted that Plaintiff's disorders supported "an impairment that would limit the claimant to being able to perform work where there would be limited and superficial contact with others, " but that Plaintiff's allegations were not credible "to the degree that would prevent the claimant from being able to work under the [specified] limitations." (T. at 257.)

Plaintiff then began regularly seeing his treating psychiatrist, Dr. Robert B. Webster, at a Veterans Affairs ("VA") hospital starting November 16, 2010. (T. at 313-316.) Plaintiff has seen Dr. Webster nine times after his initial examination. (T. at 280-282, 284-292, 294-297, 299-302, 304-310, 313-318.) Plaintiff described that he wished to transfer from his previous psychiatrist, Dr. Tohtz, whom he saw for depression, anxiety, OCD, and anger, because Plaintiff was not satisfied with how Dr. Tohtz "comes across, " citing that "he [did] not care, he tells [Plaintiff] how [he] feels." (T. at 313.) Plaintiff also began regularly seeing a therapist/social worker, Carol Mion, in September 2010. (T. at 279-280, 282-283, 292-294, 297-299, 302-304, 310-313, 317-318.)

On November 16, 2010, at Plaintiff's initial examination, Dr. Webster assessed that Plaintiff had "[m]ajor depressive disorder, recurrent, mild." (T. at 313, 316.) On December 22, 2010, Dr. Webster examined Plaintiff for medication management and supportive therapy. (T. at 309.) At the beginning of the session, Plaintiff stated that he "was okay till [he] came to the clinic" because, unexpectedly, the new clinic clerk at the front desk was his ex-wife. Id. Plaintiff had just discovered from his ex-wife's daughter that his ex-wife had a son by Plaintiff, whom she had not told Plaintiff about. Id. Dr. Webster described Plaintiff as "[c]ooperative, calm and pleasant" and without "psychomotor agitation or retardation." (T. at 310.) Plaintiff had "linear and logical" thought processes, his speech was "spontaneous, relevant, and coherent, " and he had fair insight and intact judgment. Id.

On January 26, 2011, Dr. Webster described Plaintiff's grooming, dress, disposition, mood, speech, thought processes, insight, and judgment as normal, just as he had done in the prior examination. (T. at 304, 306.) Dr. Webster again described Plaintiff as suffering "major depressive disorder, recurrent, mild" and included "Cluster B traits (borderline, antisocial)." (T. at 306.)

On March 9, 2011, Plaintiff detailed an episode of anger to Dr. Webster. (T. at 299, 300.) Plaintiff had gotten upset at the Broome County Family Court, "punch[ed] a table, and picked up a chair and thr[e]w it against a wall." (T. at 300.) Again, Dr. Webster described Plaintiff's grooming, dress, disposition, mood, speech, thought processes, insight, and judgment as normal, and noted "major depressive disorder, recurrent, mild" with "Cluster B traits (borderline, antisocial)." (T. at 300-01.)

On May 4, 2011, Dr. Webster noted that Plaintiff reported he "[had] been doing better since last visit." (T. at 296.) Plaintiff said he was "calmer, less agitated... sleeping better, " and "less irritab[le]." Id. Again, Dr. Webster described Plaintiff's grooming, dress, disposition, mood, speech, thought processes, insight, and judgment as normal, and noted "major depressive disorder, recurrent, mild" with "Cluster B traits (borderline, antisocial)." (T. at 297.)

On June 9, 2011, Dr. Webster noted that Plaintiff reported that "his agitation has been not as much.'" (T. at 294.) Plaintiff also reported "a depressed mood, some anhedonia and decrease in ambition, " as well as suffering anxiety the day before the appointment for the first time "in a while." Id. Again, Dr. Webster described Plaintiff's grooming, dress, disposition, mood, speech, thought processes, insight, and judgment as normal, and noted "major depressive disorder, recurrent, mild" with "Cluster B traits (borderline, antisocial)." (T. at 295.)

On July 14, 2011, Dr. Webster noted that Plaintiff reported his medication was helping him to feel "normal... feel better, more ambition." (T. at 288, 289.) Plaintiff further denied he was in a depressed mood or had increased irritability. (T. at 289.) Again, Dr. Webster described Plaintiff's grooming, dress, disposition, mood, speech, thought processes, insight, and judgment as normal, and noted "major depressive disorder, recurrent, mild" with "Cluster B traits (borderline, antisocial)." (T. at 290.)

On September 15, 2011, Dr. Webster noted that Plaintiff reported that his mood had been "pretty good'" and that he was not getting as irritable as he previously had. (T. at 285, 286.) Plaintiff further denied a depressed mood and increased irritability or anhedonia. (T. at 286.) Again, Dr. Webster described Plaintiff's grooming, dress, disposition, mood, speech, thought processes, insight, and judgment as normal, and ...


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