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Burkhart v. Astrue

September 16, 2009


The opinion of the court was delivered by: Conti, District Judge.


I. Introduction

Plaintiff, Richard Burkhart ("Burkhart" or "plaintiff"), brings this action pursuant to 42 U.S.C. § 1383(c)(3), which incorporates 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security ("Commissioner" or "defendant") denying plaintiff's application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 401-33, and supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83(f). The record was developed at the administrative level, and the parties filed cross-motions for summary judgment.

II. Procedural History

Plaintiff filed applications for DIB and SSI benefits on January 20, 2005, alleging disability as of January 1, 1992, due to depression and drug and alcohol dependency issues.*fn1 (R. at 59-63, 73, 148-51.) Plaintiff's claims were initially denied, and he filed a timely request for an administrative hearing. (R. at 35-41, 152-56.) A hearing was held on August 22, 2007, before an administrative law judge (the "ALJ"). (R. at 158-95.) Plaintiff was represented by counsel and an impartial vocational expert (the "VE") also appeared and testified. (Id.) The ALJ issued an unfavorable decision on December 17, 2007, finding that plaintiff was "not disabled" within the meaning of the Act. (R. at 9-24.) The ALJ's decision became the Commissioner's final decision when, on April 3, 2008, the Appeals Council denied plaintiff's request for review. (R. at 4-7.) Plaintiff's administrative remedies being exhausted, he now brings the instant action seeking review of the Commissioner's final decision, and the matter is before this Court on the cross-motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

III. Plaintiff's Background and Medical History

A. Background

Burkhart was born on September 14, 1953. (R. at 148.) He is currently fifty-six years old, making him fifty-one years old at the time of his application for benefits and fifty-three years old at the time of the administrative hearing. (Id.) He was thirty-eight on the alleged disability onset date. (Id.) Under the Commissioner's regulations, individuals who are fifty to fifty-four years old are considered persons "closely approaching advanced age" and their age is considered together with severe impairments and limited work experience in determining the applicant's ability to adjust to other work. 20 C.F.R. § 416.963.

Burkhart graduated from high school in 1971, not having attended any special education classes. (R. at 77.) Aside from a variety of various and relatively short-lived odd jobs not considered to be substantial gainful activity, Burkhart's past relevant work experience consists of being a self-employed sign painter from 1981 through 1988. (R. at 74, 188-89.) Sign painting is considered to be light work, but was performed by Burkhart at the medium physical exertional level. (R. at 189.) Burkhart discontinued his sign painting operation on December 31, 1988 due to "lack of work." (R. at 74.) He further attributed the cessation of his sign painting activities to his inability to drive due to the suspension of his driving privileges. (R. at 166-67, 180.)

Burkhart's daily activities include watching television and going for walks. (R. at 84.) He is able to take out the trash, cook a meal, vacuum, go grocery shopping, do housework and repairs, and laundry. (R. at 83-84.) Burkhart testified at the administrative hearing that he was working part time at a grocery store stocking shelves on the night shift. (R. at 167.)

B. Medical Records

1) Dr. Jabbour's Records

The results of blood tests taken in August 2004 confirmed that Burkhart has hepatitis C. (R. at 95-103.) Burkhart was seen by Nabil Jabbour, M.D. ("Dr. Jabbour") for physical examinations in May, November and December 2004. (R. at 95-96, 100.) Dr. Jabbour diagnosed erectile dysfunction, hepatitis C, and chronic obstructive pulmonary disorder ("COPD"), and prescribed medication to treat Burkhart's symptoms. (Id.)

Dr. Jabbour issued a report to the Pennsylvania Bureau of Disability Determination on March 11, 2006, indicating that he had been treating Burkhart "for a few years." (R. at 138.) Dr. Jabbour stated that since March 2005, Burkhart was seen for "usual adulthood illness, hypertension, hepatitis C, COPD, and a history of hepatitis B." (Id.) Dr. Jabbour reported that during Burkhart's last visit on January 25, 2006, the primary concerns were his "hypertension, erectile dysfunction, COPD, and hepatitis C," and medications were prescribed. (Id.) Dr. Jabbour wrote Burkhart a prescription for Zoloft to treat his depression. (Id.)

2) Unidentified Physician's Records

A Pennsylvania Department of Public Welfare Employability Assessment Form was completed on January 13, 2005, for Burkhart by an unidentifiable physician. (R. at 104-05.) The assessment on the form, as denoted by a checked box, was that Burkhart is permanently disabled due to hepatitis C and depression based upon a physical examination. (Id.)

3) Dr. DiMalta's Records

A Clinical Psychological Disability Evaluation was performed by Vincent DiMalta, Ed.D. ("Dr. DiMalta") on April 13, 2005, at the request of the Pennsylvania Bureau of Disability Determination. (R. at 113-20.) The report from this evaluation, dated April 15, 2005, revealed that Burkhart was cooperative in the examination, but exhibited signs of irritation and tangentiality. (R. at 113.)

Burkhart's self-reported history of his illness revealed a long-standing pattern of drug and alcohol issues, as well as periods of incarceration, including the most recent instance for which he was still on parole. (R. at 113-14.) Burkhart disclosed that he had been to different rehabilitation facilities and participated in different methadone programs.*fn2 (Id.) Burkhart displayed frustration with his current life situation and acknowledged that his life and personal relationships were better before he started using drugs. (Id.)

Burkhart reported that he had not been hospitalized for a mental disorder, but that he had been prescribed Zoloft*fn3 and trazodone. (R. at 114.) He disclosed his medical diagnosis of hepatitis C and suggested that may be the reason for his frequent tiredness. (Id.)

Dr. DiMalta noted that, when stressed, Burkhart's speech became pressured, but that it did not interfere with normal communication. (Id.) Burkhart expressed feeling sadness and stated that at times he sleeps too much and other times he does not sleep at all. (R. at 114-15.) Burkhart admitted that he had difficulty concentrating and that he had thoughts of death, but had no plans of committing suicide. (R. at 115.) Dr. DiMalta noted that even under minimal stress Burkhart's affect became broad and he exhibited signs of sadness. (Id.) Burkhart denied any hallucinations, illusions, or feelings of depersonalization or derealization. (Id.)

Burkhart stated to Dr. DiMalta that he has difficulty relating to his limitations resulting from his past drug use and the legal consequences of his past drug use, but that he is able to control his feelings of irritation. (R. at 116.)

Dr. DiMalta diagnosed "major depression, reactive/agitated," and listed "rule out personality disorder not otherwise specified" at Axis II. (Id.) Dr. DiMalta assessed Burkhart's Global Assessment of Functioning ("GAF") at 48.*fn4 (Id.) Dr. DiMalta listed Burkhart's prognosis as guarded. (R. at 117.) Dr. DiMalta's impression was that Burkhart "is capable of performing daily activities, but whether or not he can do this on a sustained basis, is a function of his level of depression, which will need monitored closely." (Id.)

Dr. DiMalta completed a form assessing Burkhart's ability to handle the routine pressures associated with a common workplace setting and indicated by checking a box that Burkhart had slight restriction in his ability to understand, remember, and carry out short, simple instructions; moderate restriction in his ability to understand, remember, and carry out detailed instructions, make judgments on simple work-related decisions, and interact appropriately with the public; marked restriction in his ability to interact appropriately with co-workers and supervisors; and extreme restriction in his ability to respond appropriately to work pressures and changes in a usual work setting. (R. at 118.) These findings were based upon a medical status exam which revealed depression, irritability, difficulty in concentrating, and tangential verbalizations. (Id.) Dr. DiMalta also noted that Burkhart's capability for social interaction was diminished by tangentiality in answering when feeling pressed. (R. at 119.) Additionally, Dr. DiMalta found that Burkhart's past drug and alcohol abuse influenced his current situation, but that he was presently abstinent. (Id.)

4) Dr. Tarter's Records

A Psychiatric Review Technique form was completed by a state agency psychologist, Sharon Becker Tarter, Ph.D. ("Dr. Tarter") on May 12, 2005,*fn5 based upon her review of Burkhart's medical records. (R. at 121-37.) Dr. Tarter concluded that Burkhart suffered from major depressive disorder resulting in mild restriction of activities of daily living; moderate difficulties in maintaining social functioning and concentration, persistence or pace; and no episodes of decompensation. (R. at 124, 131.) Dr. Tarter completed a Mental Residual Functional Capacity Assessment in which she found Burkhart to be not significantly limited in the majority of mental activities evaluated pertaining to understanding and memory; sustained concentration and persistence; social interaction, and adaptation. (R. at 134-35.) Dr. Tarter found Burkhart to be moderately limited in the areas of carrying out detailed instructions; maintaining attention and concentration for extended periods; completing a "normal workday and workweek without interruptions from psychologically based symptoms" and performing "at a consistent pace without an unreasonable number and length of rest periods;" interacting appropriately with the general public; accepting instructions; and responding appropriately to criticism from supervisors; and responding appropriately to changes in the work setting. (Id.)

Dr. Tarter acknowledged in her narrative report that Burkhart's medically determinable impairments consist of major depression and history of drug abuse. (R. at 136.) Dr. Tarter noted no hospitalizations due to Burkhart's mental impairments, but that he was prescribed psychotropic medication. (Id.) Dr. Tarter indicated Burkhart's diagnosis of hepatitis C. (Id.)

Dr. Tarter stated that Burkhart is capable of working within a work schedule and at a consistent pace. He can make simple decisions. His impulse control is adequate. His [activities of daily living] and social skills are functional. He can sustain an ordinary routine and adapt to routine changes without special supervision. . . . He retains the ability to perform repetitive work activities without constant supervision. There are no restrictions in his abilities in regards to understanding and memory.


Dr. Tarter partially adopted the findings of Dr. DiMalta in her report, declining to credit his opinion of Burkhart's social adjustments because they are not supported by the medical record. (Id.) Dr. Tarter concluded that Burkhart's impairments do not prevent him ...

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