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Walker v. Commissioner of Social Security

March 8, 2010


The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing



Plaintiff John R. Walker brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the final determination of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 401-433. Presently before the court are cross-motions for summary judgment based on the record developed at the administrative level. After careful consideration of the decision of the Administrative Law Judge ("ALJ"), the briefs of the parties, and the entire record, it is clear that the decision of the Commissioner is supported by substantial evidence. Accordingly, Plaintiff's motion will be denied and Defendant's motion will be granted.


Plaintiff protectively filed for DIB on October 19, 2005, alleging disability as of May 31, 2005 due to a major depression, post traumatic stress disorder, sleep apnea, and hypertension.

(R. 49, 52-67.) Plaintiff's date last insured for purposes of DIB was December 31, 2009. (R. 12.) The state agency denied his claims on May 4, 2006. (R. 34-37.) A hearing was held before ALJ James Bukes on December 5, 2007 where Plaintiff, who was represented by counsel, and a vocational expert testified. (R. 306-323.) On February 14, 2008, the ALJ issued a decision finding Plaintiff not disabled. (R. 11-26.) On March 28, 2008, Plaintiff filed an appeal to the Appeals Council, who denied Plaintiff's request for review on May 8, 2008. (R. 4-6, 7.) The instant action followed.


Plaintiff was born on January 4, 1948, making him fifty-seven years of age at the time of his asserted onset of disability and sixty years of age on the date of the ALJ's decision. (R 49.) Plaintiff finished high school and was in the military from 1967-1971. (R. 99, 308.) Plaintiff's past relevant work includes working as a hand laborer in an industrial mechanical plant (1986-2004) and at Sony as an inspector (2004-2005). (R. 60, 309.)

On March 3, 2004, Plaintiff underwent a sleep study that indicated severe sleep apnea. (R. 262.) Plaintiff's apnea hypopnea index was 61.*fn1 Id. A treatment study on the following day showed that a 9 cm continuous positive airway pressure (CPAP) was effective in treating his sleep apnea. Id. Plaintiff treated with the CPAP until he lost his job and medical coverage in the Fall of 2004. (R. 264-65.) His CPAP prescription was reinstated by the Veteran's Administration on January 4, 2005 with the same regime as he had treated with previously. Id.

On January 26, 2005, Plaintiff had an individual therapy session with Daniel Ziff, a licensed social worker. (R. 264). Plaintiff discussed losing his job at the chemical plant after over eighteen years of employment. Id. He stated that he had been making mistakes and was given warnings but was later fired for those mistakes. During the same period, Plaintiff was diagnosed with sleep apnea and was falling asleep and having trouble concentrating at work. He stated that the CPAP helped some. Id. As to his emotional symptoms, Plaintiff indicated that he was very depressed, but denied feelings of suicide. Ziff assessed a GAF of 50.*fn2 Id. Plaintiff concurrently treated with Dr. Joseph Fetchko, Ph.D. At his January 28, 2005 visit, Plaintiff denied suicidal or homicidal ideations, reported an improved mood, and indicated that he was having trouble with his energy level but that his sleep was less disrupted. (R. 263). Plaintiff told Dr. Fetchko that "Vietnam never goes away and he thinks about it every day." Id. Plaintiff was continued on bupropion for his depression and viagra for his erectile dysfunction. Id. A GAF of 64 was assessed by Dr. Fetchko. (R. 256).

On February 17, 2005, Plaintiff underwent an endocrinology consultation with Dr. Michael Radin for his erectile dysfunction. (R. 199-201, 259-260). Plaintiff indicated that his erectile dysfunction had been present for at least ten years and that he had some success with Viagra. Id. Dr. Radin indicated that Plaintiff's testosterone levels were normal and that there was no vascular or neurological cause of the dysfunction. (R. 259).

Plaintiff had individual therapy sessions with both Dr. Fetchko and Mr. Ziff on March 16, 2005. (R. 257-258). During his session with Dr. Fetchko, Plaintiff reported no suicidal or homicidal ideations and that his mood had improved on bupropion. (R. 257). Plaintiff described an incident where he blacked out in a car while using alcohol. Id. He reported making it to a friend's house where the police found his car parked on the curb. Plaintiff stated that this incident scared him and that he was abstinent after that event. Id. Plaintiff further reported that he felt that the Iraq War was progressing similarly to Vietnam. Dr. Fetchko indicated that Plaintiff processed some of his anger, had fair interest, and did not require treatment for his episodic alcohol abuse. Plaintiff was diagnosed with posttraumatic stress disorder (PTSD). Id.

In his session with Mr. Ziff, Plaintiff indicated that he was working for a temporary agency as an inspector. (R. 257). He reported the same blackout incident stating that he would remain abstinent. Mr. Ziff warned him of the dangers of taking medications while drinking and noted that Plaintiff should get in touch with the White Oaks Veterans Center for counseling and job opportunities. Mr. Ziff assessed a GAF of 50. (R. 258).

Plaintiff underwent dual therapy sessions again on May 16, 2005. (R. 140-141.) In his session with Dr. Fetchko, Plaintiff reported that he was upset about losing his job and felt that the problems he was having at work were not dealt with properly. (R. 255). Dr. Fetchko indicated that Plaintiff was able to challenge his cognitive distortions that nothing had gone right in his life since Vietnam. Id. Upon mental examination, Dr. Fetchko reported that Plaintiff was depressed, had a restricted affect, and had a partial response to Wellbutrin (bupropion). Id. Plaintiff reported sleeping 5-6 hours per night and that he was without his CPAP machine. Id. Dr. Fetchko added citalopram to augment the bupropion. Plaintiff was also offered information on Compensated Work Therapy (CWT) through the Veteran's Administration. (R. 256). In his session with Mr. Ziff, Plaintiff indicated that he had no money for food or utilities and was given information on job related services. Mr. Ziff reported that Plaintiff was very depressed but was not suicidal. Id. Mr. Ziff assessed a GAF of 45. (R. 125, 254-55).

On May 18, 2005, Plaintiff saw Sheila Walsh from the sleep lab. (R. 128). Ms. Walsh indicated that they had ordered CPAP equipment for Plaintiff in March, but he had never called to have it delivered. Plaintiff was told to call and have it delivered. Id. On June 1, 2005, Plaintiff saw Dr. Charles Atwood to review his therapeutic sleep study results. The test revealed an Epworth Sleepiness score at 17.*fn3 (R. 127). On June 3, 2005, a pressure change was ordered to Plaintiff's CPAP from 9cm to 13cm due to his test results. (R. 191).

Plaintiff attended group therapy on July 19, 2005 with CRN, Deborah Young and Dr. Fetchko. (R. 126). Ms. Young reported that Plaintiff had received unemployment after a hearing and had stated that he "really [did] not want to work." (R. 126). Plaintiff was confronted with playing a role in losing his previous jobs, but did not want to hear insinuations of that sort. Id. He acted ambivalent towards getting job counseling and indicated that he had not filled out any job applications in the last two weeks. (R. 126). Plaintiff would not admit that his behavior was problematic to him finding work and he stated that "he never liked working, but had to do it." Id. Ms. Young and Dr. Fetchko noted that Plaintiff was holding up well and had no complaints about sleeping, but needed to work on his level of functioning as he had become convinced that nothing was in his control. Id. On June 21, 2005, Plaintiff met with Ms. Young for a review of his individual therapy. He stated concerns related to his homeless status and unemployment. He was encouraged to keep looking for work. (R. 125). Dr. Fetchko assessed Plaintiff with a GAF of 60. (R. 122).

On August 14, 2005, Plaintiff was admitted to emergency care for continuing pain across his chest. (R. 123-124). Dr. Christopher March ordered an out-patient stress test and an electrocardiogram. The electrocardiogram was normal with normal sinus rhythm and normal sinus arrhythmia. (R. 1 30).

Plaintiff returned for dual therapy sessions on September 1, 2005. (R. 121-123). In his session with Dr. Fetchko, Plaintiff reported that he was not sleeping well and was having problems with irritability. He indicated that he had not used alcohol since his last visit. Id. Dr. Fetchko increased Plaintiff's citalopram and added trazadone for sleep. It was recommended that Plaintiff talk to CWT, the Office of Vocational Rehabilitation (OVR), and the Vietnam Veterans Leadership Program (VVLP). Id. In his session with Mr. Ziff, Plaintiff indicated that he felt invalidated by Dr. Fetchko in his struggle to find work. Plaintiff stated that he was trying to protect himself with unemployment and a non-service connected disability pension (NSC) in case there were no jobs available. Plaintiff did agree that he would make more money if he found work. (R. 123). On September 20, 2005, Plaintiff was contacted by John Erskine, a vocational rehabilitation expert about the CWT program or potentially training or retraining with the OVR.

(R. 121). Dr. Fetchko indicated Plaintiff's request for a referral to CWT on September 21, 2005.

He also increased Plaintiff's trazadone due to trouble sleeping. (R. 119). Dr. Fetchko assessed Plaintiff ...

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