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Range v. Astrue

October 21, 2009


The opinion of the court was delivered by: McLAUGHLIN, Sean J., J.


Plaintiff, Richard John Range, commenced the instant action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the final decision of the Commissioner of Social Security, who found that he was not entitled to supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Plaintiff protectively filed an application for SSI on December 11, 2003, alleging disability since June 1, 1991 due diabetes, mental illness and depression (Administrative Record, hereinafter "AR", at 57-59; 67).*fn1 His application was denied initially, and he requested a hearing before an administrative law judge ("ALJ") (AR 40-44). A hearing was held on December 14, 2005 and on February 14, 2006, the ALJ found that Plaintiff was not disabled at any time through the date of his decision, and therefore was not eligible for SSI benefits (AR 18-26). Plaintiff's request for review by the Appeals Council was denied (AR 4-8), rendering the Commissioner's decision final under 42 U.S.C. § 405(g). The instant action challenges the ALJ's decision. Presently pending before the Court are cross-motions for summary judgment. For the reasons set forth below, the Defendant's motion will be granted and the Plaintiff's motion will be denied.


Plaintiff was born on November 29, 1967 and was 38 years old on the date of the ALJ's decision (AR 57). He has a GED and previously worked part-time as a maintenance worker in a convenience store (AR 25; 68).

Plaintiff's medical records reveal that on January 24, 2003, Annette Jadus, M.A., from Action Review Group, Inc., prepared a "Vocational Report" opining that the Plaintiff was "presently" unable to perform any substantial gainful activity due to his severe mental impairment (AR 99-104). Her opinion was based upon Dr. Ronald Refice's review of the medical records for the period from October 21, 1993 to November 6, 2002 (AR 99-100).

Plaintiff was admitted to the hospital for five days on April 15, 2003 with a diagnosis of diabetic ketoacidosis (AR 105-110). He underwent aggressive intravenous therapy with interval dosing of insulin and his condition improved on a daily basis (AR 105-107). He was discharged in stable condition with instructions to follow up with his primary care physician (AR 105).

On October 20, 2003, Plaintiff underwent a psychiatric evaluation performed by Helen Kohn, M.D. at Stairways Behavioral Health Outpatient Clinic (AR 199-2002). Plaintiff complained of depression and being "quick to anger" (AR 199). He stated that he lived with his girlfriend who had cerebal palsy and was unable to do things for herself (AR 199). He frequently became verbally angry with her when she requested assistance, yelling and throwing things (AR 199). He requested medication management and individual therapy in order to control his temper and decrease his depression (AR 199). Plaintiff stated he was on insulin because he was an insulin-dependent diabetic but was on no other medications (AR 199). Historically, he had been prescribed Effexor and Remeron which had been effective in controlling his symptoms (AR 199). He reported a past history of inpatient treatment for depression in 1993 and treatment by Dr. Evans in 2001-2002 (AR 199). He informed Dr. Kohn that he recognized he needed medication to control his symptoms (AR 199). Dr. Kohn reported that he had a good relationship with his mother and brothers with no history of abuse (AR 200).

Plaintiff reported that he had been placed in several different foster homes when he was younger and had spent time at the Harborcreek Home for Boys (AR 200). Plaintiff further reported a previous incarceration for armed robbery in 1994 but that he was no longer on probation (AR 200). Dr. Kohn noted that he had obtained a GED and had a "good" part-time employment history working for a convenience store until the position was eliminated (AR 200).

On mental status examination, Dr. Kohn reported that Plaintiff was cooperative and alert throughout the interview and was forthcoming about his history and problems (AR 201). She found his eye contact was good, he showed no unusual mannerisms, his speech was normal, his thought processes were organized and relevant, there was no evidence of thought blocking, flight of ideas or obsessive thinking, and his affect was appropriate throughout the evaluation (AR 201). Dr. Kohn further found that his cognitive and memory functions were average, he had no delusions or hallucinations, and he was not suicidal or paranoid (AR 201). She diagnosed him with major depressive disorder, recurring, moderate, and a possible intermittent explosive disorder, and assigned him a Global Assessment of Functioning ("GAF") score of "probably about" 55 (AR 130).*fn2 She placed him on a "fairly low dose" of Effexor and Remeron, and recommended individual counseling and that he attend the anger management group (AR 201-202).

Plaintiff returned to the emergency room on December 12, 2003 complaining of low blood sugar (AR 133). He was treated with oral glucose and his symptoms improved (AR 133-134). He was diagnosed with acute hypoglycemic reaction and was discharged in stable condition (AR 134).

On January 4, 2004, Plaintiff presented to the emergency room complaining of back pain (AR 119). Plaintiff apparently had been seen for the same complaint the previous evening but did not recall that visit (AR 116). He was unable to provide a history and it was noted that he was a resident of the Stairways facility (AR 119). Behavioral Health was consulted, but the Plaintiff refused any psychiatric care (AR 119). On physical examination, Plaintiff had some focal tenderness to the thoracic spine with some mild paraspinous muscle spasm on the right thoracic region (AR 119). A thoracic spine x-ray revealed compression fractures of the T6 and T7 vertebras (AR 131). Plaintiff was diagnosed with acute back pain of undetermined etiology, acute thought disorder and diabetes (AR 118). He was discharged with instructions to rest and ice his back and was prescribed pain medication (AR 120).

Plaintiff was treated in the emergency room for another episode of diabetic ketoacidosis, as well as complaints of back pain, on January 6, 2004 (AR 135-136). Physical examination revealed 5/5 strength in his upper and lower extremities, deep tendon reflexes were normal and his sensation was intact (AR 143). Some point tenderness was noted around his mid thoracic spine (AR 143). An MRI of his thoracic spine showed likely recent compression fractures of the T6 and T7 vertebras and minimal endplate changes of the T4, T5, T8 and T9 vertebras (AR 146). Conservative treatment with a back brace was recommended and he was discharged in stable condition (AR 135; 143). An x-ray of the Plaintiff's spine taken on February 12, 2004 revealed no significant changes from the previous studies (AR 161).

Progress notes from Stairways dated January 21, 2004 indicated that the Plaintiff was wearing a back brace but could not recall injuring himself (AR 162). It was noted that he appeared disheveled, his affect was sluggish and his mood was dysphoric, but he had no suicidal or homicidal ideations or symptoms of psychosis (AR 162-163).

Plaintiff completed a Daily Activities Questionnaire on January 26, 2004 and reported that he lived alone and was able to take care of his personal needs, although occasionally he needed a reminder to take care of his personal hygiene (AR 74-77). He claimed he was not allowed to engage in any heavy lifting, but could lift 10 to 15 pounds (AR 74; 76). He could only sit for 15 to 20 minutes due to back pain and walk up to three blocks due to leg pain (AR 76). He indicated that he suffered from back pain on a daily basis and took pain medication as needed (AR 82). Plaintiff reported that he was able to get along with family and friends, people in authority and supervisors and co-workers, although he did not respond well to criticism (AR 78; 81). He reported that he sometimes engaged in arguments for no reason (AR 78). He had no trouble understanding and carrying out instructions, was able to make decisions on his own, could report to work on time, could maintain good attendance and was able to keep up with his work (AR 79).

Plaintiff failed to appear at a scheduled psychological consultative examination on March 11, 2004 (AR 186). As a result, Sharon Tarter, Ph.D., a state agency reviewing consultant, found insufficient evidence to establish a mental impairment (AR 174).

Plaintiff was treated at the emergency room on May 6, 2004 for an episode of hypoglycemia (AR 204-206). Plaintiff was reportedly found on the side of the road and was administered oral glucose by EMS personnel (AR 204). Plaintiff assaulted various EMS personnel who were treating him (AR 204). Following treatment at the emergency room he was discharged into the custody of the police in stable condition (AR 206).

Medical records from the Erie County Prison reveal that in May 2004, Plaintiff's mood and affect were eythymic and he denied suffering from any delusions, hallucinations, or suicidal/homicidal ideations (AR 214). In July 2004 Plaintiff complained of intermittent hand and shoulder tremors, as well as low back pain (AR 212). His blood sugar was fairly well controlled, he was neurologically intact but hand tremors were noted upon extension (AR 212).

On November 4, 2004, Plaintiff reported to the nurse practitioner at Stairways that he had been discharged the previous day from the Erie County Prison and was currently homeless and staying at Community of Caring (AR 197). Uncontrolled hand movements were observed and he was urged to follow up with his primary care physician for evaluation (AR 197).

On December 7, 2004, Plaintiff reported that he was still staying at Community of Caring but wanted his own place (AR 197). On mental status examination, Dr. Kohn reported that his affect was appropriate, his mood was fair, he had no suicidal or homicidal ideations and had no symptoms of psychosis (AR 196-197). Dr. Kohn continued his medication regimen (AR 196).

Plaintiff's condition remained stable when seen by Dr. Kohn on March 11, 2005 although she increased the dosage of his medications (AR 196).

Plaintiff was seen by R. Anthony Snow, M.D., at Community Health Net on March 29, 2005 (AR 191). Plaintiff reported a history of hypertension and diabetes stated that he was compliant with his medications (AR191). He reported that he lived in a shelter and it was difficult to control his diet and check his blood sugar regularly (AR 191). Plaintiff further reported a history of hand tremors that had become increasingly worse and he requested an evaluation due to a history of Parkinson's in his family (AR 191). Dr. Snow continued his current medications, ordered blood work and anticipated a neurological referral (AR 191).

When seen by Dr. Snow on May 18, 2005, Plaintiff reported high blood sugar readings and expressed a continuing concern about his hand tremors (AR 190). Plaintiff's blood work looked "pretty good" and his physical examination was unremarkable, but some tremulousness was noted by Dr. Snow (AR 190). He increased his ...

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