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Comiskey v. Astrue

January 27, 2010


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


Plaintiff, Paul K. Comiskey, appeals the decision of the Commissioner of Social Security (the "Commissioner") denying his applications for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and for supplemental security income ("SSI") under Title XVI of the Act, 42 U.S.C. §§ 1381-1383f. Plaintiff filed a motion for summary judgment, seeking to have the case remanded "for a full and fair hearing that considers all of the available evidence" (Br. in Support of Pl.'s Mot. for Summ. J. ["Pl.'s Br."] 19), and the court thereafter referred the matter to a magistrate judge. The magistrate judge has issued a report and recommendation ("R & R") recommending that the plaintiff's motion be granted in part and denied in part and that the case be remanded to the Commissioner so that the record can be developed further in certain areas. The Commissioner has now filed objections to the R & R, arguing that the Administrative Law Judge ("ALJ") fulfilled his duty to assist the pro se plaintiff in developing the record, and adequately explained his decision to reject certain opinion evidence from a consultative psychologist who examined plaintiff. Plaintiff has not filed a response. Upon consideration of the R & R, the Commissioner's objections thereto, the summary judgment briefing, and the entire administrative record, and for the reasons set forth herein, the court will adopt the recommendations of Magistrate Judge Linda K. Caracappa and remand the case to the ALJ for further consideration consistent with this memorandum.

I. Facts and Procedural History

Plaintiff, born on July 11, 1963, is forty-six years old. (R. 29.) He has a high-school education (R. 29-30), and his past employment includes work as a laborer/contractor, a paper machine helper, a stock clerk, and a maintenance person for apartment complexes, among other things (R. 31-35, 171, 177-84). In 2003, plaintiff was stabbed in the abdomen during a robbery of which he was the victim. (See R. 46, 208.) Plaintiff underwent surgery for his injuries at Temple University Hospital in 2003 and 2004 (R. 46, 208, 248),*fn1 and he appears not to have had any sort of stable employment since that time (see R. 184). Plaintiff also has a history of mental health issues.*fn2

On October 24, 2006, plaintiff filed applications for DIB and SSI, alleging a disability with an onset date of March 10, 2006. (R. 9.) Plaintiff described his disability as a "[w]ound infection, back and shoulder problems, [and] mental issues." (R. 170.) In connection with his claims, plaintiff was examined by two separate consultative examiners at the request of the state agency: Alvin Elinow, Ph.D., a psychologist, and Javad Abdollahian, M.D., a practitioner of internal medicine. (R. 13, 270-85.)

In a report dated February 1, 2007, Dr. Abdollahian noted that plaintiff complained primarily of an inability to lift, pull, and push due to the scarring and pain from his prior abdominal surgery, and also complained of injuries to both hands, hypertension, attention-deficit disorder, spinal deformities, and low back pain. (R. 270.) Following a physical examination, Dr. Abdollahian listed his final diagnoses of plaintiff as (1) "[l]arge scar in the abdomen from umbilical to suprapubic area"; (2) "[m]orbid obesity by 15 pounds"; and (3) "[a]ttention-deficit disorder," and concluded that plaintiff had "multiple subjective complaints with very minimal objective finding."*fn3 (R. 272.) In particular, Dr. Abdollahian found that plaintiff was able to move all of his extremities very well without limitation and had a normal range of motion and gait with no neurological abnormalities. (Id.) He went on to conclude that plaintiff was capable of lifting and carrying up to twenty-five pounds "frequent[ly]"; had no limitations with respect to standing and walking, sitting, or pushing and pulling; and could perform "occasional" bending, kneeling, stooping, and crouching, and "frequent" balancing and climbing. (R. 273-74.)

Dr. Elinow also issued a report, dated February 6, 2007, reflecting the results of his mental status examination of plaintiff. (See R. 279-85.) In his report, Dr. Elinow listed plaintiffs multiaxial diagnoses as follows:

AXIS I: Bipolar disorder type I.


AXIS III: Health problems noted are stomach and digestive problems as well as undiagnosed back and shoulder problems.

AXIS IV: Stressing factors are unemployment, present family stressors are considered to be high, and he also suffers from a mood disorder.

AXIS V: GAF is approximately 50 to 55.

(R. 282.) Dr. Elinow concluded that plaintiff found it difficult to obtain employment due to a number of factors, including "physical problems from a severe stomach injury about 3 years ago, ongoing severe family stressors due to problems with his wife who has emotional problems, financial problems that may result in him being homeless in a few months, as well as an inability to obtain long-term employment because of his felony conviction, for which he served about 10 years in prison." (R. 283.) He also reported that plaintiff was having "a great deal of difficulty with social relationships, mood swings and his health problems." (Id.) Based on his examination of plaintiff, Dr. Elinow found that his impairments did not affect his ability to understand, remember, and carry out short, simple instructions, but had a "[s]light" effect on his ability to understand, remember, and carry out detailed instructions and to make judgments on simple work-related decisions. (R. 284.) He also concluded that plaintiff's impairment had a "[s]light" effect on his ability to interact appropriately with the public and co-workers and a "[m]oderate" impact on his ability to interact appropriately with supervisors and to respond appropriately to work pressures and changes in a usual or routine work setting. (Id.) Dr. Elinow also noted that plaintiff's poor social skills would affect his relationship to co-workers. (R. 285.)

Following these evaluations, state agency medical consultants prepared both a physical and a mental residual functional capacity assessment of plaintiff. (R. 286-91, 305-07.) The physical residual functional capacity assessment, prepared by Vinaykant N. Shah, M.D., on February 21, 2007, found that the medical evidence in the record*fn4 established a "medically determinable impairment of [history of] stab wound rectum/abdomen." (R. 291.) Dr. Shah found that plaintiff was limited to lifting or carrying fifty pounds "[o]ccasionally" and twenty-five pounds "[f]requently." (R. 287.) Dr. Shah also concluded that plaintiff could sit, stand, and/or walk for about six hours in an eight-hour workday, but that he otherwise had no physical limitations. (R. 287-89.) The mental residual functional capacity assessment, prepared by Frank M. Mrykalo, Ed. D., on February 28, 2007, similarly concluded that the medical evidence established a medically determinable impairment of "Bipolar, Adhd, [and] Polysubstance Abuse." (R. 307.) Based on the record evidence, Dr. Mrykalo found that plaintiff was "[m]oderately [l]imited" in several respects as a result of his impairment.*fn5 (R. 305-06.) He nevertheless concluded that plaintiff appeared to be reasonably ...

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