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Lisinski v. Colvin

United States District Court, W.D. New York

August 3, 2015

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


MICHAEL A. TELESCA, District Judge.

I. Introduction

Represented by counsel, Cory Robert Lisinski ("plaintiff")[1] has brought this action pursuant to Title XVI of the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner") denying his application for Supplemental Security Income ("SSI"). This Court has jurisdiction over the matter pursuant to 42 U.S.C. ยงยง 405(g), 1383(c).

II. Procedural History

The record reveals that on April 20, 2010, plaintiff's mother, Jennifer M. Standish, filed an application for SSI on behalf of plaintiff, alleging a disability onset date of February 16, 2010. This application was denied, and at Ms. Standish's request, a hearing was held on November 15, 2011 before an Administrative Law Judge ("ALJ") Stanley A. Moskal, Jr. The ALJ issued an unfavorable decision on February 24, 2012. The Appeals Council denied review of the ALJ's decision on February 22, 2013. Thereafter, plaintiff timely filed this action seeking review of that denial. Doc. 1.

Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the following reasons, the Commissioner's motion is granted, and plaintiff's cross-motion is denied.

III. Summary of Administrative Transcript

A. Medical Evidence

Plaintiff's medical records indicate primary diagnoses of attention deficit hyperactivity disorder ("ADHD"), oppositional defiant disorder ("ODD"), bipolar disorder, asthma, and Osgood-Slaughter's syndrome (inflammation of the patellar ligament at the tibial tuberosity). The record contains several consultative examinations as well as treatment notes from plaintiff's primary medical and psychiatric providers.

School psychologist Mac I. Barnett completed a confidential psycho-educational evaluation in September 2009, at the request of plaintiff's mother. T. 199-203. School records indicated that in sixth grade, plaintiff's school performance was quite good until seventh grade, at which point it dropped off and plaintiff began exhibiting a pattern of excessive absence and failing grades. Id . Dr. Barnett found that plaintiff was advanced in conversational proficiency; cooperative; had a typical activity level for his age/grade; was attentive to tasks as typical for age/grade; appeared tense or worried at times; was slow and careful in responding; and generally persisted with difficult tasks as typical for age/grade. Id . Dr. Barnett administered an intelligence test and noted that "implications for the classroom teacher [were] that [plaintiff] ha[d] the intelligence to perform at least at an Average level and showed no significant difficulties thinking by using a Crystallized or Fluid process[.]" T. 201.

Treatment records from the office of Dr. Thomas Szalkowski for the time period September 2003 through March 2010 contain essentially normal physical examination findings, with the exception of episodic illnesses and injuries and diagnoses of asthma, Osgood-Slaughter's syndrome, explosive disorder, ADHD, and ODD. T. 206-358. In July 2009, Dr. Szalkowski noted that plaintiff did not play sports, but had hobbies and got along with several peers and his parents. T. 305. Plaintiff did not have anxiety issues, but drank alcohol and smoked cigarettes. Id . Plaintiff was on probation from a criminal mischief charge that occurred when he was 13. T. 306. Plaintiff had violated the conditions of an adjournment in contemplation of dismissal, and therefore probation was imposed for an additional year. Id.

On November 18, 2009, Dr. Szalkowski found that plaintiff was physically qualified for sports/full playground activity and physically qualified for employment. T. 265. On March 19, 2010, after plaintiff had "missed significant days of school due to varying illnesses, recently abdominal pain with persistent diarrhea, " Dr. Szalkowski noted in a letter to plaintiff's school that plaintiff and his mother requested that plaintiff be home tutored due to plaintiff's and his mother's desire to "catch him up" before going back to school. T. 238. Dr. Szalkowski stated that his preference, however, would be for plaintiff to return to school if this was at all possible, and noted that he had encouraged plaintiff to return to school. Id.

Plaintiff treated with psychiatrist Christopher Pino from sometime in 2007 through May 2010. T. 360-63. Treatment notes reflect diagnoses of bipolar disorder, ADHD, and ODD. In August 2009, Dr. Pino found that on mental status exam, plaintiff had anxious mood and labile affect; his short and long-term memory were normal, but concentration was impaired without medication; he showed no signs of psychosis, "but can tell some very dramatic stories as attention seeking." T. 361, 454. In May 2010, Dr. Pino noted that although plaintiff took medication (prescribed by school psychiatrist Dr. Hashim) for mental conditions, [h]is mood swings [were] not under control [and] he remains a risk for being in school." T. 360. Dr. Pino recommended home instruction through the end of the school year. Id.

On June 30, 2010, Dr. Donna Miller completed a pediatric examination at the request of the SSA. T. 382-86. Dr. Miller noted that "[o]n a typical day [plaintiff] watches TV, listens to music, plays sports, draws, and uses the computer." T. 384. Physical exam was essentially normal. T. 384-85. Dr. Miller noted that plaintiff related with her "in an age-appropriate way, " and "appeared to have [a] normal attention span for [his] age." T. 384. Dr. Miller diagnosed asthma, Osgood-Schlatter's syndrome, and chronic intermittent back pain, and noted a stable prognosis. T. 385-86. Dr. Miller stated that plaintiff could "participate in all ageappropriate activities, " but that she would recommend "limiting sport activities secondary to his Osgood-Schlatter." T. 386.

Susan Santarpia, Ph.D., completed a child psychiatric evaluation on June 30, 2010 at the request of the SSA. T. 387-91. At that exam, plaintiff and his mother reported past diagnoses of ADHD, bipolar disorder, ODD, intermittent rage disorder, and PTSD, "which stems from a life-threatening trauma when he was beaten by his biological father at age 7 and forced to do drugs." T. 387. Plaintiff reported using cannabis and drinking alcohol, to which behavior his "mother did not demonstrate any apparent objection." T. 388. He had just been released from a three-year probation associated with a criminal mischief charge. Id . Dr. Santarpia assessed plaintiff's mood as euthymic, attention and concentration as age-appropriate, cognitive functioning as average, insight poor, and judgment poor "due to the claimant being parented in a way that allows a 16-year-old to live with his girlfriend, use marijuana, and drink alcohol." T. 389-90. Plaintiff was able to bathe, dress, and groom himself appropriately, help out with household chores, and travel the neighborhood independently, and had normal sleep and appetite. T. 387, 390. Plaintiff had been seeing his girlfriend for three years and "spen[t] his days with his girlfriend." Id . Dr. Santarpia opined that plaintiff could understand directions and perform most tasks age-appropriately, with mild impairment in maintaining appropriate social behavior and interacting adequately with peers and adults. Id . She concluded that the results of her evaluation were "consistent with psychiatric problems, but in itself, this [did] not appear to be significant enough to interfere with the claimant's ability to function on a daily basis." Id . On Axis I, she diagnosed plaintiff with disruptive behavior disorder, not otherwise specified ("NOS"). Id . She assessed a poor prognosis "given [plaintiff's] current level of living situation and poor parental skills." T. 391. Dr. Santarpia also completed a child intelligence evaluation, in which she assessed a full-scale IQ of 88, which put plaintiff in the low average to average range of abilities. T. 395.

Dr. J. Meyer completed a childhood disability evaluation form in August 2010. T. 397-402. Dr. Meyer found that plaintiff had an impairment or combination of impairments that were severe, but did not medically equal or functionally equal a listed impairment. T. 397. Dr. Meyer assessed no limitation in the domains of interacting and relating with others, moving about and manipulating objects, and caring for yourself, less than marked limitation in the domains of acquiring and using information and health and physical well-being, and marked limitation in the domain of attending and completing tasks. T. 399-400. Dr. Meyer noted that plaintiff was currently living with his girlfriend and girlfriend's mother, that he was possibly abusing alcohol, and that he was noncompliant with medications. T. 399.

Nurse practitioner Gerald E. Turk examined plaintiff on August 9, 2010. T. 403-10, 462. NP Turk took an extensive history from plaintiff and plaintiff's mother, and noted that plaintiff complained of past physical abuse by his father and sexual abuse from nonfamily member, and that plaintiff "has acquired many legal problems and has been accused of attempted rape and property destruction." T. 403-06. NP Turk stated that plaintiff "seeks disability and an alternate school situation so that he will avoid further legal problems." T. 406. Plaintiff and his mother reported that "at the age of 13 he cut his wrist while intoxicated on alcohol and subsequently required surgery to address tendon damage." T. 403; see T. 383 (noting 2007 surgery). They also reported that plaintiff had voiced suicide threats on five different occasions prior to August 9, 2010. T. 404. NP Turk diagnosed plaintiff, on Axis I, with bipolar disorder, NOS; ADHD, combined type; continuous cannabis dependence; and "[a]buse of a [c]hild, physical and sexual." T. 406. Plaintiff requested Geodon for psychiatric treatment, which NP Turk agreed to prescribe, noting that if this medication was unsuccessful plaintiff would be willing to try lithium. Id . Plaintiff was continued on Prozac and Adderall. Id.

Psychiatric treatment notes dated September 2010 through September 2011 indicate that plaintiff's psychiatric conditions were controlled with medications. T. 463-82. However, plaintiff had a pattern of repeated cancellations and lateness for appointments. T. 475. When plaintiff's mental status was assessed, it was either normal or normal except that plaintiff did not present as reasonable, rational, or insightful. T. 463 (September 13, 2010 exam noting labile mood, defiance, and poor insight), 464 (October 14, 2010 exam noting limited insight), 468 (May 3, 2011 exam noting impulsivity and impaired judgment), 470 (May 10, 2011 exam was normal), 480, 482 (July 28 and September 1, 2011 exams normal except for limitations in reason, rationality, and insight). In September 2010, treatment notes ...

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