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Burkett v. Astrue

February 25, 2010

MARK A. BURKETT, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION

Plaintiff, Mark A. Burkett, (hereinafter "Plaintiff"), 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 denying his claims for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq, and § 1381 et seq. Plaintiff filed applications for DIB and SSI on April 12, 2006, alleging disability since April 1, 2001 due to depression, hypertension, panic attacks, and arthritis in his lower back and hips (Administrative Record, hereinafter "AR", 88-90;; 93-96; 100).*fn1 His applications were denied, and he requested a hearing before an administrative law judge ("ALJ") (AR 60-65; 71-76; 82). Following a hearing held on March 19, 2008, the ALJ found that the Plaintiff was not entitled to a period of disability or disability insurance, and was not eligible for SSI benefits (AR 9-18; 25-56). Plaintiff's request for review by the Appeals Council was denied (AR 1-3), 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 Plaintiff's and Defendant's motions for summary judgment will be denied and the case remanded to the Commissioner.

I. BACKGROUND

Plaintiff was 40 years old on the date of the ALJ's decision (AR 17). He has a General Equivalency Diploma ("GED") with past work experience as a gas station manager, CNC operator, tamper operator and machine operator (AR 31-36; 101).

Plaintiff was incarcerated for several years stemming from an aggravated assault conviction (AR 159). On March 20, 2002, he was evaluated by A. Newton, M.D., a psychiatrist at SCI-Somerset (AR 161). Plaintiff indicated that he had been on Prozac for the past year which provided some benefit for his depressed mood, but he still felt "down" (AR 162). He admitted to a past history of abusing alcohol and occasional marijuana usage (AR 162). On mental status examination, Dr. Newton reported that his affect was constricted and his mood was sad and depressed (AR 164). Dr. Newton found his memory, insight, judgment, attention and concentration were all intact, but he concluded that the Plaintiff was of "borderline" intelligence (AR 164-165). He was diagnosed with depressive disorder, not otherwise specified and drug and alcohol abuse, and was assigned a Global Assessment of Functioning ("GAF") score of 50 (AR 165).*fn2 Dr. Newton increased his Prozac dosage amount and recommended he undergo drug/alcohol treatment, as well as stress/anger management treatment (AR 166).

Plaintiff underwent a psychiatric evaluation on June 9, 2002 performed by Pushkalai Pillai, M.D., a psychiatrist at SCI-Somerset (AR 159-160). Plaintiff continued to complain of depression related to his marital problems and incarceration (AR 159-160). On mental status examination, no psychosis was noted, his affect was appropriate to his thought content and he had no suicidal/homicidal thoughts (AR 160). Dr. Pillai reported that the Plaintiff had "very limited" insight and judgment, especially with respect to his alcohol and marijuana usage (AR 160). He was diagnosed with adjustment disorder with depressed mood and dysthymia secondary to marijuana and alcohol dependence (AR 161). He assessed the Plaintiff with a GAF score of 65, reduced his Paxil dosage and added Trazondone to his medication regimen (AR 160).*fn3

Dr. Pillai reported on January 12, 2005 that the Plaintiff was "doing well" on Paxil and Elavil and was "stable without any evidence of acute mental health problem[s]" (AR 157-158). He was diagnosed with dysthymia, alcohol dependence, and marijuana dependence, and Dr. Pillai assigned him a GAF score of 65 (AR 157). He recommended that the Plaintiff undergo mental health follow up for medication, as well as outpatient drug and alcohol treatment with frequent alcohol testing (AR 158).

On December 3, 2005, Anjaneyulu Karumudi, M.D., a psychiatrist at SCI-Somerset, completed a Brief Psychiatric Summary (AR 156). Dr. Karumudi diagnosed the Plaintiff with dysthymic disorder, alcohol dependence and marijuana abuse (AR 156). He reported that the Plaintiff was compliant with his medications (Elavil and Paxil) and was "fairly stable" at that time (AR 156). He assessed him with a GAF score of 60, and recommended that he follow up with a psychiatrist and participate in drug and alcohol treatment after his release on parole (AR 156).*fn4

On April 24, 2006, Plaintiff was seen by Donna Anderson, M.D., and complained of, inter alia, panic attacks that started while he was in prison (AR 196). Dr. Anderson reported that his affect was normal and appropriate (AR 196). She continued him on Paxil and recommended a mental health referral for his anxiety (AR 196).

Plaintiff sought treatment at the Regional Counseling Center for complaints of depression, anxiety and panic attacks on May 17, 2006 (AR 261). On June 20, 2006, Janis Pastorius, PA-C performed a psychiatric evaluation (AR 262-265). Plaintiff reported a history of mood difficulties, depression, anxiety, irritability, poor sleep and an inability to concentrate (AR 262). He claimed he was unable to work due to difficulties with people and an inability to handle stress (AR 262). On mental status examination, Ms. Pastorius reported that his mood seemed anxious and she observed a fine tremor in his hands (AR 264). She found no evidence of psychosis and found that his thoughts were logical and well organized (AR 264). Plaintiff was diagnosed primarily with major depressive disorder without psychotic symptoms in partial remission; dysthymia; and panic disorder with agoraphobia (AR 265). He was assessed a GAF score of 45 (AR 265).

Plaintiff returned to the Regional Counseling Center on July 12, 2006 complaining of increased irritability and panic attacks (AR 260). Treatment notes indicate that he presented as "tense" and "fidgety" (AR 260).

On July 20, 2006, Robert P. Craig, Ph.D., performed a clinical psychological disability evaluation pursuant to the request of the Commissioner (AR 219-222). Dr. Craig noted that the Plaintiff's concentration, motivation and "self-sufficiency" were all within normal limits (AR 219). Plaintiff reported a history of depression and panic attacks relating to his troubled marriage and incarceration (AR 219). He stated that while incarcerated he took Klonopin, Elavil and Paxil, but did not attend counseling (AR 219-220). On mental status examination, Dr. Craig reported that the Plaintiff presented well with good eye contact, but he appeared to be "rather nervous, jumpy, and fidgety" (AR 220). His impulse control was "fair at best" but he had no suicidal or homicidal thoughts (AR 220). Plaintiff reported feeling anxious "a lot" and depressed "all the time" with an inability to handle stress (AR 220). While Dr. Craig found that he appeared to be "edgy and suspicious", he concluded that he was not delusional or suffering from hallucinations (AR 220).

Plaintiff was able to answer most of the similarity questions, understood a variety of simple historical facts and sample proverbs, and could perform simple multiplication and division (AR 221). He was well oriented in all spheres (AR 221). Plaintiff reported that his memory was "shot", and Dr. Craig found that his recall for remote, recent past and recent events was "poor" (AR 221). He further found that his general decision making abilities were "poor", especially in regards to more complicated tasks (AR 221). Plaintiff described his daily living skills and social functioning as "fair" (AR 221). He stated that he had difficulty concentrating and was easily frustrated (AR 221). Dr. Craig diagnosed panic attacks without agoraphobia and rule out panic attacks with agoraphobia (AR 221). He assessed him with a GAF score of 56 (AR 222).

Dr. Craig completed a Medical Source Statement of Ability to do Work-Related Activities (Mental) (AR 223-225). He found that the Plaintiff was able to understand and carry out short, simple or detailed instructions and make simple work-related decisions (AR 224). He found that the Plaintiff was slightly limited in his ability to interact appropriately with the public, supervisors and co-workers and respond appropriately to changes in a routine work setting (AR 224). He concluded that the Plaintiff was moderately restricted in his ability to respond appropriately to work pressures (AR 224). It was his view that the Plaintiff would "benefit from a consistent, predictable work setting-no real problems" (AR 224).

The next day, on July 21, 2006, William J. Fernan, Ph.D., performed a psychological evaluation of the Plaintiff pursuant to the request of the Plaintiff's lawyer (AR 226-231). Dr. Fernan noted that the Plaintiff's hygiene and grooming were good and that he dressed appropriately (AR 226). Plaintiff described having a "good work record" on a "steady basis" and with "good" co-worker and supervisor relations (AR 226). Plaintiff reported that in 1999 he had become significantly depressed with anxiety and panic attacks secondary to chronic, severe pain (AR 227). He indicated that he had been prescribed psychiatric medications and had also participated in individual psychotherapy since 2005 (AR 227). Plaintiff claimed that despite treatment, he experienced "severe depression" with difficulty initiating and enjoying activities (AR 227). Plaintiff further claimed that he was easily irritated, was significantly withdrawn and suffered from anxiety (AR 227). He claimed he suffered from at least one panic attack daily with even minor stress, becoming dizzy and short of breath with an inability to concentrate (AR 227). Plaintiff indicated that he had not abused substances since 1999, was released from incarceration in March 2006 and remained on parole for three years (AR 227). Plaintiff also reported that he had remarried and his relationship with his wife and stepson was "good" (AR 228).

Dr. Fernan reported that the Plaintiff appeared to be "significantly anxious", had a hand tremor and exhibited limited eye contact (AR 228). He found his speech to be spontaneous with no unusual mannerisms (AR 228). He also found the Plaintiff had "moderate difficulty initiating any positive emotions with a significantly blunted affect" (AR 228). Dr. Fernan concluded that the Plaintiff's concentration was "extremely poor" as demonstrated by an inability to perform serial seven subtraction (AR 228). He further found that his recent past memory was also "extremely poor", as was his impulse control (AR 228-229). He also observed "very poor" social judgment secondary to his anxiety and blunted affect (AR 229).

Dr. Fernan administered the Minnesota Multiphasic Personality Inventory-2 ("MMPI") test, but the Plaintiff received a profile pattern of "somewhat questionable validity" (AR 229). His personality pattern indicated that he was immature, impulsive and would have "great difficulty profiting from experience" (AR 229). Dr. Fernan found the ...


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