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Spaw v. Astrue

August 19, 2008


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


I. Introduction

Pending before the court are cross-motions for summary judgment based on the administrative record: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Document No. 8) and PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Document No. 11). The motions have been fully briefed and are ripe for resolution.

Plaintiff, David A. Spaw, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final determination of Defendant Michael J. Astrue, the Commissioner of Social Security ("Commissioner") which denied his application for disability insurance benefits ("DIB") under title II of the Social Security Act ("Act"), 42 U.S.C. §§ 401-403, and for supplemental security income ("SSI") under title XVI of the Act, 42 U.S.C. §§ 1381-1383f.

II. Factual and Procedural Background

Plaintiff was born on May 8, 1965, and is classified as a "younger individual" pursuant to 20 C.F.R. §§ 404.1563, 416.963. Spaw has a high school education and past relevant work history as a machinist. He reported numerous other jobs, including nursing assistant, landscaping and an assistant to an insurance adjuster. Spaw stated that he lost his prior jobs due to absenteeism. The record reflects that Spaw was employed in 2003, 2004 and early 2005. His last day of work was May 5, 2005, which is the alleged onset date of his disability. Spaw meets the non-disability requirements for disability and was insured for benefits through the date of the decision of the Administrative Law Judge ("ALJ") on April 9, 2007.

Plaintiff alleges disability due to major depressive disorder and sleep apnea and obesity. Spaw has a long history of drug and alcohol abuse, domestic problems, anger management issues, and psychiatric care and counseling. Because Spaw alleges a disability onset date of May 5, 2005, the Court will focus on the medical record after that date. Plaintiff does not have any exertional limitations. Further, to his credit, the record reflects that Spaw has been clean from drugs and alcohol since 1999-2000. The notes of a counseling session on August 10, 2005 by Marija Cutlip, M.D., state: "He remains in full remission from alcohol dependence." R. 103. Similarly, Dr. Cutlip's notes dated September 26, 2006 state: "He is completing the seventh year of recovery from alcohol dependence." R. 173.

Spaw received psychiatric care from Chestnut Ridge Counseling Services starting in 2001. Spaw testified that he met with treating psychiatrist Dr. Cutlip approximately monthly throughout the relevant time period. R. 218.*fn1 In the notes from an appointment on June 22, 2005, Dr. Cutlip noted that Spaw was doing relatively poorly and complained of lack of energy or motivation and profound daytime sleepiness. She adjusted his medications, which included celexa, lexapro, wellbutrin and trazodone, and discontinued seroquel. Spaw also had recently started an anti-cholesterol medication. R. 109. The same day, Spaw attended an anger management session with Robert Eby, LPC, in which he reported that he had been laid off from work and had had occasional verbal outbursts. R. 108. In a follow-up appointment on June 29, 2005, Spaw denied having any further anger outbursts. R. 106. During a counseling visit on July 6, 2005, Patsy Pasqualucci, RN, noted that since the change in his medications, Spaw had more energy and was feeling a lot better, and kept busy cutting the grass and working on cars.

R. 104. On August 10, 2005, Dr. Cutlip noted that Spaw was "very positive today" and reported that he had been in "good emotional health" and had recently taken a family trip to Florida. R. 103.

After August 2005, there appears to be a gap in the medical record until November 1, 2005, when Spaw attended a therapy session with Ms. Pasqualucci. Spaw reported that the trazodone had ceased being effective for sleep in the last few weeks, but that he took seroquel (from a prior prescription) and was sleeping well. Spaw was tolerating his other medications well. R. 185.

On November 21, 2005, Roger Glover, Ph.D., a state agency non-examining physician, completed a Psychiatric Review Technique form which assessed Spaw's residual functional capacity. R. 153-168. Dr. Glover recognized that Spaw had an affective disorder pursuant to Listing 12.04, namely a depressive syndrome. However, in evaluating the "B" criteria to determine functional limitations, Dr. Glover opined that Spaw had only mild restrictions in daily living and in maintaining social functioning and moderate difficulties in maintaining concentration, persistence or pace. Dr. Glover further opined that the "C" criteria were not established. In completing the Mental Residual Functional Capacity Assessment, Dr. Glover did not determine that Spaw was "markedly limited" in any category. Dr. Glover found moderate limitations in Spaw's ability to understand and remember and carry out detailed instructions, to maintain attention and concentration for extended periods, to respond appropriately to changes and to set realistic goals or make independent plans. Dr. Glover opined that Spaw was "Not Significantly Limited" as to the remaining categories. In summary, Dr. Glover opined that Spaw would be able to maintain regular attendance, concentrate, interact appropriately and function in production oriented jobs. Dr. Glover concluded that Spaw "is able to meet the basic mental demands of competitive work on a sustained basis despite the limitations resulting from his impairment."

Dr. Cutlip next met with Spaw on January 24, 2006. Spaw reported difficulties with self-worth and accomplishment as his five-year-old son was facing a difficult adjustment to his new school and had significant behavioral, attention, learning and medication management issues. Spaw, a single parent, was involved in appointments for evaluation of his son's problems. Spaw reported a relatively low mood, occasional bouts of depression and a chronic lack of energy. Dr. Cutlip noted that Spaw's recovery has been stable, that his mood was neutral and that he was in no acute distress. R. 183.

On March 7, 2006, Dr. Cutlip noted that Spaw stated that "he has been doing fairly well" and he was "overall in good shape." Spaw's son continued to have problems and remained the focus of his activities. Spaw denied any side effects from his medications other than increased daytime sleepiness and the need to take a nap occasionally. R. 182. On May 31, 2006, Dr. Cutlip noted that Spaw "has been doing relatively well" but continued to report fatigue, low energy and low drive. His mood was slightly dysthymic and he appeared to have a decreased energy level. Dr. Cutlip discontinued lexapro and started Spaw on effexor. R. 180. The same day, Dr. Cutlip completed a health-sustaining medication assessment form and an employment assessment form. Dr. Cutlip explained that the medications were necessary because Spaw was experiencing low mood, low energy, inability to sustain concentration, tolerate work-related stress or consistently execute any work tasks and opined that Spaw was temporarily disabled from May 31, 2006 to May 31, 2007. R. 169-171.

On July 11, 2006, Dr. Cutlip noted that Spaw was "rather impressed" with the effect of the effexor and had a "much better energy level." He was "very excited" to spend most of the summer at the beach with his son. His mood was pleasant. Dr. Cutlip's diagnosis was ...

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