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Skardinski v. Colvin

United States District Court, W.D. New York

March 3, 2017

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

          For the Plaintiff: Howard D. Olinsky, Esq.

          For the Defendant: Benil Abraham, Esq. Social Security Administration Office of General Counsel Kathryn L. Smith, A.U.S.A. Office of the United States Attorney


          CHARLES J. SIRAGUSA United States District Judge.

         Social Security Administration Office of General Counsel 26 Federal Plaza, Room 3904 New York, New York 10278 Kathryn L. Smith, A.U.S.A. Office of the United States Attorney for the Western District of New York 100 State Street, Room 620 Rochester, New York 14614 INTRODUCTION This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security (“Commissioner” or “Defendant”), which denied the application of Johnathan Skardinski (“Plaintiff”) for Social Security Disability Benefits (“DIB”) and Supplemental Security Income Benefits (“SSI”). Now before the Court is Plaintiff's motion (Docket No. [#8]) for judgment on the pleadings and Defendant's cross-motion [#12] for judgment on the pleadings. Plaintiff's application is denied and Defendant's application is granted.


         The reader is presumed to be familiar with the parties' submissions, which contain detailed recitations of the pertinent facts. The Court has reviewed the record and will offer only a brief summary of those facts. Plaintiff claims to be disabled due to both physical impairments and psychological impairments, which include degenerative disc disease in the cervical and lumbar spines, as well as bipolar disorder, depression and anxiety.

         In April 2004 Plaintiff was treated at St. Joseph's Hospital in Syracuse, “due to wanting help for ongoing drug use [(cocaine, ecstasy and marijuana)]” and a [history of] bipolar disorder.” T. 371. Plaintiff reported having two prior hospitalizations, in or about 2002, for intentional drug overdoses. T. 380, 386, 394. At that time Plaintiff indicated that he had quit his job due to increased stress, T. 394, but he apparently found other employment subsequently, because he continued to have reported earnings through 2005. T. 218. The hospital's diagnosis was “bipolar disorder NOS” and “polysubstance dependence.” T. 379. Upon discharge, the hospital prescribed lithium and risperdal, and recommended follow-up treatment.

         Shortly thereafter, Plaintiff was incarcerated for seven years, between 2005 and 2012. The Ambulatory Health Record covering Plaintiff's period of incarceration indicates that while he was in prison, he carried a diagnosis of “adjustment disorder, ” but did not receive medication or other treatment for that condition, or for any psychologically-based problem. T. 318-325. While in prison, Plaintiff filed the subject application for disability benefits.

         In August 2012, Plaintiff was released from prison. Plaintiff claims to have made a brief attempt to work later that month, picking milkweed pods. Other than that, Plaintiff has not worked since before he was incarcerated. Shortly after being released, Plaintiff had a parole violation, which he described as involving “consuming beer when providing emotional support to a friend who had a death in his family.” T. 420.

         On May 6, 2013, Plaintiff told his doctor that he smokes 3-4 packs of cigarettes per day. T. 454 (“He smokes 3/4 PPD.”).

         In May and June of 2013, almost a year after being released from prison, Plaintiff underwent a psychological assessment at the request of his parole officer. T. 419.[1] The evaluation was performed at Oswego Hospital Behavioral Services (“Oswego Behavioral”). Plaintiff reported that he had long-standing problems with anxiety, feeling overwhelmed, and lacking focus and concentration. T. 419. However, Plaintiff expressed irritation at having to attend the evaluation, indicating that he was not sure why it was needed, since “he ha[d] his depression and anxiety under control.” T. 420. Plaintiff expressed “no interest” in consulting with a doctor “regarding medication.” T. 421, 426. Plaintiff also declined the evaluator's suggestion that he contact VESID (“Vocational and Educational Services for Individuals with Disabilities”), stating that he “did not want to have to be forced to work, ” and that he had a disability application pending. T. 421, 429.

         Shortly after this psychological evaluation, on June 13, 2013, Plaintiff and his attorney attended a disability hearing before an Administrative Law Judge (“ALJ”), however, the ALJ adjourned the hearing because he had received virtually no evidence in support of Plaintiff's claim at that time. Subsequently, while his attorney was attempting to gather a medical record to support his disability claim, Plaintiff returned to Oswego Behavioral for “medication management, treatment and general support, ” even though he denied having any symptoms, was not taking medication, and had previously indicated that he was not interested in treatment. T. 423. At that time, it appears that Plaintiff grossly misstated his medical history to the treatment provider, by stating that he had “at least 10 (per Pt. report)” prior “psychiatric hospitalizations.” T. 423.[2] At least, that figure is inconsistent with the rest of the record. See, T. 386 (three prior admissions); 394 (two admissions in 2002 for overdoses). Plaintiff's mental status examination was essentially normal, and he indicated that he spent his time playing video games “excessively.” T. 423-424. Oswego Behavioral started Plaintiff on medication, even though he had indicated that he was asymptomatic without medication. T.423 (“At present time, Mr. Skardinski denies symptoms.”).

         On December 10, 2013, Plaintiff and his attorney again appeared for a hearing before the ALJ. During the hearing, Plaintiff testified concerning his impairments, though his testimony was notably vague in most respects, even in response to simple questions.[3] Plaintiff testified that he has a driver's license and drives about once per day. T. 43. Plaintiff indicated that he stopped working not because of disability but because he was sent to prison, and that since being released from prison eighteen months earlier (August 2012), he had made only one attempt at working, which, as previously mentioned, involved “picking milkweed pods, ” part-time. T. 44. Plaintiff could not recall how many hours he had worked at that job, T. 45, and he has no reported earnings after 2005. T. 218-222.[4] Plaintiff, who had applied for disability benefits while still in prison, T. 213, testified that he was required to seek work as a condition of his parole, but not if he applied for disability. T. 54. Plaintiff indicated that he spends his days doing household chores, caring for pet parakeets and playing video games. T. 59-62.

         Plaintiff indicated that he has pain in his back, which feels like “a knife stuck in [his] back at all times, ” and pain in his neck, which feels “like somebody took a baseball bat to it.” T. 46. Plaintiff stated that he can sit for 20-30 minutes at a time before needing to change position. T. 47-48. Plaintiff stated that his back hurts after standing for one minute, and that he can stand for only 20 minutes before needing to sit down of lie down. T. 48. Plaintiff, who is 6' 4" and weights 200 pounds, indicated that he can lift only “five pounds[, ] [m]aybe ten.” T. 48.

         When asked how his bipolar disorder affects his daily life, Plaintiff gave a rather vague, unresponsive answer:

I mean I've experienced the manic highs and stuff like that, and that - well, but the manic depression part of it too, because it's mostly the depression part more than the highs, because you've got the highs and the lows. Until I understood more about it - it's hard to say. It's - because it's confusing. Because it's chemicals in the brain, and it's hard to explain it to somebody that really if they don't know. [sic] There's different types of bipolar I and II, and so it's - [.]

         T. 49. When asked how his bipolar disorder affected his ability to work in the past, Plaintiff stated:

It just eventually got to me. That's what it does is just eventually over time it just - it might be little things, but it's just things that would just like all right. [sic] I can't take it no more. You know it's just the - same routine thing, too. That - it like irked me.
It's just the same thing day-in and day-out. There's no change in the routine or nothing, and it would - that would drive me crazy too. Like mind is just like need something different. [sic] Need change. I don't know. That's like a way of explaining that part of it, too. Plus also it's just like you know maybe it might be my back or at the time bothering me too.
It's just added stress all combined over time, and it's just like I get to the point where it's like mind and body fighting. You know what I'm saying? Because the body's hurting, and then the mind's like can't deal with this. It's so much. It's overwhelming and - so, it just became a battle eventually, and then it's like all right.
I'm not even doing my job here properly or correctly because I've got all this going on in my head and everything, and maybe eventually - I've had this just like I'm sorry, my performance isn't you know - I have to go. That's usually what happens. It happened in the past.

         T. 50. When asked if he experienced anxiety, Plaintiff indicated that he had suffered one panic attack, for which he did not seek medical attention. T. 51. Plaintiff stated that since being released from prison he had seen a mental health therapist three or four times, [5] but could not remember the therapist's name, and that medication “seem[ed] to be helping with the anxiety and stress and irritability.” T. 56. Plaintiff also testified that he had received medication for his mental impairments “on a regular basis” while in prison, T. 62, though the prison medical record does not mention such treatment. T. 318 (list of conditions includes “adjustment disorder, ” but list of medications pertains to back pain, not mental health); 428 (Stating, apparently based on Plaintiff's self report, “While in prison, Johnathan was prescribed Zoloft which caused disruptions in his sleep as he reports to have been without sleep for some five days, ” suggesting that Zoloft was tried and discontinued.).

         Plaintiff's counsel was unsuccessful in obtaining medical source opinions from Plaintiff's treatment providers.[6] Consequently, following the hearing, the ALJ obtained medical interrogatories from two non-treating non-examining experts -- a psychiatrist, Aaron Satloff, M.D. (“Satloff”), and an orthopedic surgeon, Thomas F. Scott, M.D. (“Scott”). Scott indicated that according to the medical record, Plaintiff's physical impairment was degenerative disc disease of the cervical and lumbar spines, with no evidence of nerve root compression. Scott opined that Plaintiff was unable to perform “repeated bending, lifting [and] stooping, ” but “should be able to carry out light work activity.” T. 481. Scott stated that Plaintiff could occasionally lift and carry up to 20 pounds, and could frequently lift and carry 10 pounds; could sit for two hours at a time and for six hours in a workday; stand for one hour at a time and for four hours in a workday; walk for one hour at a time and for three hours in a workday; frequently use both hands and feet; frequently claim stairs and balance; and occasionally climb ladders, stoop, kneel, crouch and crawl. In making these findings, Scott indicated that there was a “paucity of objective findings” in the record to support any further limitations than those that he identified. T. 488.

         As for psychiatric findings, Satloff indicated that Plaintiff had generalized anxiety disorder and bipolar disorder, which would cause only “mild” restrictions in daily living, social functioning, and ability to maintain concentration, persistence or pace. T. 490-491. Satloff stated that Plaintiff would have “moderate” restrictions in understanding, remembering and carrying-out complex work instructions and in making complex work-related decisions, but would have only “mild” restrictions in understanding, remembering and carrying-out simple work instructions and in making simple work-related decisions. T. 495. Satloff opined that Plaintiff might have mild restriction in responding appropriately to work situations and changes in routine, but would have no restrictions in his ability to interact with the public, supervisors or co-workers. T. 496. Satloff further indicated that Plaintiff would be able to perform “some of his previously held jobs.” T. 494. The ALJ proffered Satloff's and Scott's reports to Plaintiff's counsel, who declined to respond to them. T. 11.

         On April 7, 2014, the ALJ issued a Decision (T. 11-20), denying Plaintiff's claim. Applying the familiar five-step sequential analysis for Social Security disability claims, the ALJ found, at the first and second steps, that Plaintiff had not engaged in substantial gainful activity at any relevant time, and that he had the following severe impairments: “degenerative disc disease in the cervical and lumbar spines.” (T. 13-16). The ALJ ...

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