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Mussi v. Astrue

September 29, 2010

PAUL L. MUSSI, PLAINTIFF
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT



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

Electronic Filing

OPINION

I. INTRODUCTION

Paul L. Mussi ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security ("Defendant" or "Commissioner") denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-433 ("the Act"). This matter comes before the court on cross-motions for summary judgment. (Docket Nos. 7, 11). The record has been developed at the administrative level. For the following reasons, Plaintiff's Motion for Summary Judgment will be granted and Defendant's Motion for Summary Judgment will be denied.

II. PROCEDURAL HISTORY

Plaintiff filed for DIB on June 1, 2006, claiming an inability to work as of June 29, 2003.

(R. at 104).*fn1 Plaintiff initially was denied DIB on June 27, 2007. (R. at 60 - 63). A hearing was scheduled for August 15, 2008. Plaintiff, represented by counsel, appeared and testified. (R. at 20, 84 - 88). A vocational expert, Alina M. Kurtanich, also testified. (R. at 20). The ALJ issued his decision on October 17, 2008. (R. at 7 - 19). Plaintiff filed a request for review of the ALJ's decision by the Appeals Council, which was denied on July 10, 2009, thereby making the decision of the ALJ the final decision of the Commissioner. (R. at 1 - 3).

Plaintiff filed his Complaint on September 8, 2009. Defendant filed his Answer on November 13, 2009. Cross-motions for Summary Judgment followed.

III. STATEMENT OF THE CASE

A. General Background

Plaintiff was born April 29, 1969, and was 39 years of age at the time of the hearing. (R. at 28). As of June 1, 2007, Plaintiff had served in the United States military for fourteen years.

(R. at 240). He served a tour of duty in the Persian Gulf from 1990 to 1991. (R. at 246). He served a second tour of duty in Iraq from 2003 to 2004. (R. at 246). While serving in Iraq, Plaintiff was involved in four improvised explosive device ("IED") attacks and injured his left shoulder. (R. at 240). During combat training in 2006, Plaintiff re-injured his left shoulder. (R. at 240).

After his second tour of duty, Plaintiff attended college at Edinboro University for a degree in criminal justice. (R. at 240). He dropped out of college. (R. at 240). In 2006 Plaintiff was dismissed from a stint in officer training school. (R. at 240).

Plaintiff currently lives with his spouse. (R. at 241). He has a child by a previous marriage who lives in North Carolina. (R. at 241). Plaintiff and his wife reside on a farm in northwestern Pennsylvania. (R. at 405).

B. Medical Background - Physical

On January 19, 2006, Plaintiff was examined at Martin Army Community Hospital for complaints of shoulder pain. (R. at 201). Plaintiff complained of pain of sudden onset, that worsened with activity and movement of the arm above shoulder level. (R. at 201). Plaintiff also complained that his shoulder often felt stiff, out of place, and unstable. (R. at 201). The hospital notes indicated no signs of psychological issues, no decreased functioning ability, no unusual sleep complaints or tiredness, and normal enjoyment and interest in activities. (R. at 201). Plaintiff appeared alert, well-developed, well-nourished, and in no acute distress. (R. at 202). Physical examination of the left shoulder revealed evidence of tissue injury and contusion of the left deltoid region. (R. at 202). Some swelling and deformity was noted, as well as a lessened range of motion and pain during movement. (R. at 202). However, there was no pain on palpitation, no atrophy, normal shoulder abduction, normal shoulder extension, and normal internal rotation of the shoulder. (R. at 202). Plaintiff was provided medication and a brace. (R. at 202). Plaintiff's shoulder condition was attributed to combat training. (R. at 202). A January 19, 2006, radiology report on Plaintiff's shoulder revealed that Plaintiff's bones, joints, and soft tissues were normal. (R. at 205). There was no evidence of fracture or dislocation. (R. at 205). Plaintiff's left shoulder was considered normal. (R. at 205).

Plaintiff was again seen at Martin Army Community Hospital on January 24, 2006 for complaints of left shoulder pain. (R. at 199). The examiner noted Plaintiff's normal radiology examination results from January 19, 2006. (R. at 199). Plaintiff reported that pain in his shoulder had decreased since his last visit. (R. at 199).

On February 7, 2006, Plaintiff was examined at Martin Army Community Hospital for his left shoulder. (R. at 197). Plaintiff again appeared to be in no acute distress, was well-developed, and well-nourished. (R. at 197). The hospital notes indicate that there was some weakness in the left shoulder, though there was full range of motion and no instability. (R. at 197). Some swelling, joint pain, and stiffness were observed, as well as a popping sound, some clicking, and a grating sensation. (R. at 197). The examiner noted Plaintiff's normal radiology results, and diagnosed the condition as a left shoulder strain. (R. at 197). Medication was prescribed. (R. at 197).

Plaintiff was last seen at Martin Army Community Hospital for his left shoulder pain on February 21, 2006. (R. at 195). Plaintiff appeared awake, alert, oriented, well-developed, well-nourished, hydrated, healthy, and active, and exhibited no signs of acute distress or discomfort.

(R. at 195). Plaintiff's unremarkable radiology results were noted, and Plaintiff was again diagnosed with shoulder strain. (R. at 195).

Plaintiff had an x-ray of his left shoulder taken at the Erie V.A. Medical Center on March 31, 2006. (R. at 214). The x-ray showed normal bone density, without significant degenerative changes, and no loose bodies or soft tissue calcifications. (R. at 214). The hospital concluded that Plaintiff's results were normal. (R. at 214). Lawrence J. Galla, D.O., examined Plaintiff that same day and noted that flexion and extension of the left shoulder were normal. (R. at 353). Abduction caused Plaintiff some discomfort, as did touching the back of his neck. (R. at 353). Dr. Lawrence concluded that Plaintiff suffered from arthralgia of the left shoulder. (R. at 353).

Another x-ray of Plaintiff's left shoulder at the Erie V.A. Medical Center on October 20, 2006, showed that Plaintiff's shoulder had minor abnormalities. (R. at 213). The radiology report noted that there was a focal bony irregularity on the clavicle that could have represented post-traumatic, and possibly degenerative, change. (R. at 213). However, glenohumeral relationship appeared normal, and there was no rotator cuff calcification. (R. at 213). At an orthopedic consult that same day, Plaintiff was noted as appearing healthy and in no acute distress. (R. at 312). Plaintiff's left shoulder showed some prominence of the distal clavicle, as well as crepitus and instability with compression of the distal clavicle; these abnormalities were credited with causing Plaintiff's pain. (R. at 314). There were no signs of loose bodies or calcification, and there were no signs of rotator cuff tear or labral tear. (R. at 314). Plaintiff had full strength in his left shoulder. (R. at 314). Plaintiff was injected with cortisone that subsequently provided excellent pain relief. (R. at 314).

Electromyography ("EMG") was performed on January 29, 2007, for carpal tunnel syndrome, and showed that Plaintiff suffered from a minimal degree of carpal tunnel in the wrists. (R. at 210 - 11). On February 16, 2007, Plaintiff had an x-ray of his spine taken at the Erie V.A. Medical Center. (R. at 212). The x-ray showed satisfactory lumbar spinal alignment, no vertebral bodies, and no fractures. (R. at 212). Plaintiff's intervertebral disc spaces were normal, and there were no signs of spondylolysis or spondylolisthesis. (R. at 212). An "incidental note" of spina bifida occulta at the L5 vertebrae was made. (R. at 212). However, Plaintiff's spine was diagnosed as having only minor abnormality. (R. at 212).

On February 16, 2007, Plaintiff was seen by Harvey P. Insler, M.D., at the Erie V.A. Medical Center for complaints of shoulder pain and numbness in the hands. (R. at 288). A radiology study revealed multiple small fractures in both hands. (R. at 288). However, an EMG study for carpal tunnel syndrome showed that both hands were only mildly affected. (R. at 288).

Dr. Insler acknowledged Plaintiff injured his left shoulder while serving in the military, but noted that recent magnetic resonance imaging ("MRI") of the shoulder showed no problems. (R. at 288). Surgery was not recommended. Dr. Insler prescribed night splints for Plaintiff's carpal tunnel syndrome and suggested taking over-the-counter medications to relieve pain. (R. at 288). He also recommended Plaintiff modify his activities to avoid pain. (R. at 288).

Plaintiff was evaluated on May 31, 2007, by physical therapist Bobby Letzo, P.T., for traumatic brain injury and back pain. (R. at 238). Mr. Letzo noted that Plaintiff's chief complaints were low back pain, ear pressure, and nausea. (R. at 238). During the evaluation, Mr. Letzo found that Plaintiff's impulsiveness and disinhibition were a result of behavioral issues, and not necessarily a traumatic brain injury. (R. at 238 - 39). Plaintiff did not exhibit other signs of traumatic brain injury such as balance dysfunction, apraxia, ataxia, dysdiadokokinesia, diminished coordination, or weakness. (R. at 239). Mr. Letzo felt that physical therapy may be able to relieve Plaintiff's back pain. (R. at 239).

An MRI study of Plaintiff's brain was completed on June 1, 2007, at Saint Vincent Health Center. (R. at 245). The MRI showed no abnormality. (R. at 245). Michael Orinick, M.D. examined Plaintiff on October 1, 2007 for a follow up on his earlier assessment for traumatic brain injury. (R. at 418). A neuropsychological evaluation showed that Plaintiff did not meet the physical criteria for traumatic brain injury and did not suffer from cognitive dysfunction. (R. at 418). Plaintiff was considered to be suffering primarily from issues related to depression, anxiety, mood disturbance, and post-traumatic stress disorder*fn2 ("PTSD"). (R. at 418).

C. Medical Background - Psychological

Plaintiff received psychotherapy and medication from the Eric V.A. Medical Center. Over a period of time spanning 2006 to 2008, Plaintiff was treated by a number of medical professionals at the center. On May 22, 2006 Plaintiff had an initial evaluation with a behavioral science specialist, Mark A. Steg, M.S. (R. at 344 - 49). Mr. Steg determined that Plaintiff suffered from PTSD and depression. (R. at 344 - 49). During the initial evaluation, Mr. Steg noted that Plaintiff's grooming was appropriate, he was oriented, cooperative, and congenial, his speech was anxious but logical, his affect was appropriate, there were no signs of thought disorder, and he showed fair insight and judgment. (R. at 344 - 49). However, he appeared to have difficulty maintaining composure throughout the session. (R. at 347). Plaintiff was assessed a global assessment of functioning ("GAF") score of 50.*fn3 (R. at 344 - 49). Mr. Steg concluded that Plaintiff's social, cognitive, and affective dysfunction rendered him unemployable. (R. at 348).

Mr. Steg conducted Plaintiff's psychotherapy from June 12, 2006 until July 19, 2006, when Plaintiff switched psychotherapists. (R. at 322, 331). Plaintiff was treated for PTSD and depression during these sessions. (R. at 322, 331). Mr. Steg generally noted that Plaintiff was anxious, and acted disproportionately cheerful to hide his anxiety. (R. at 322, 331). Plaintiff generally exhibited regular speech patterns, maintained his appearance appropriately, exhibited fair judgment, and was intelligent and motivated. (R. at 322, 331). However, Mr. Steg noted that Plaintiff's PTSD and depression worsened when confronted with the reality of his health, financial, and employment situations. (R. at 322, 331).

Plaintiff began seeing Carol L. Teresi, C.R.N.P., for prescription medication maintenance on June 2, 2006. (R. at 327). Ms. Teresi monitored the effectiveness of Plaintiff's psychiatric medications for his PTSD and depression. (R. at 327). At their initial meeting, Ms. Teresi found Plaintiff's appearance to be neat and clean, he was fairly relaxed, he exhibited regular speech patterns, he thought logically, and he was oriented. (R. at 327). Nevertheless, she noted that Plaintiff suffered from significant PTSD symptoms, including hyper-vigilance and "fighting mode." (R. at 327). Plaintiff's mood and impulse control were down, his cognition was impaired, and his judgment and insight were limited. (R. at 327). Ms. Teresi believed that Plaintiff's symptoms were likely to impair his relationships and limited his ability to work. (R. at 327).

Ms. Teresi continued to meet with Plaintiff and monitor his medications through June 18, 2007. (R. at 258). Ms. Teresi frequently found that Plaintiff was dressed neatly and cleanly, was relaxed and open, was oriented, exhibited regular speech patterns, showed logical thought processes, and had good cognition, impulse control, insight, and judgment. (R. at 258, 263, 277, 294, 299, 308-18, 325). However, these findings often fluctuated greatly depending upon the severity of the PTSD and depression suffered by Plaintiff over the course of Ms. Teresi's evaluations. (R. at 258, 263, 277, 294, 299, 308 - 18, 325). Plaintiff's marital, health, and financial problems often were enhanced by, and also enhanced, Plaintiff's PTSD and depression symptoms. (R. at 258, 263, 277, 294, 299, 308 - 18, 325). Ms. Teresi stressed the need to try to stabilize Plaintiff's mood. (R. at 309). Plaintiff was assessed a GAF score of 50 by Ms. Teresi in an October 27, 2006, evaluation. (R. at 310).

Ms. Teresi's findings with respect to Plaintiff's mental state improved somewhat over the course of her evaluations. (R. at 258, 263, 277, 294, 299, 308 - 18, 325). In her final meeting with Plaintiff on June 18, 2007, Ms. Teresi noted that Plaintiff appeared to be responding favorably to a recent medication change, as his energy and ability to concentrate had improved.

(R. at 258). Plaintiff continued to need help controlling agitation. (R. at 258). Ms. Teresi recommended Plaintiff try an additional medication to calm him down. (R. at 258).

Following psychotherapy treatment with Mr. Steg, Plaintiff began visiting Andre ShreveNeiger, Ph.D., on December 12, 2006. (R. at 302). During his initial evaluation by Dr. Shreve, Plaintiff was assessed a GAF score of 62. (R. at 62). Dr. Shreve noted that Plaintiff was of high average intelligence, and was open, cooperative, and motivated to get better. (R. at 302). However, Plaintiff suffered from intrusive traumatic memories, was easily startled, was hyper-vigilant, had stunted emotional expression, and felt isolated, detached, and guilty, as a result of PTSD and depression. (R. at 302). Dr. Shreve observed that Plaintiff was well-nourished, was neat and exhibited adequate hygiene, made good eye contact, was oriented, spoke normally, had a dysthymic mood, had intact judgment, and exhibited no signs of thought disorder. (R. at 302).

Plaintiff had numerous psychotherapy sessions with Dr. Shreve through September 5, 2007. (R. at 420, 424). Plaintiff was often described as exhibiting euthymic mood, mood-congruent affect, adequate hygiene, and good eye contact. (R. at 302, 298, 296, 292 - 91, 286 -81, 266, 432, 430, 420, 424). Plaintiff generally communicated well and was usually in no acute distress. (R. at 302, 298, 296, 292-91, 286-81, 266, 432, 430, 420, 424). As was noted by Ms. Teresi, Plaintiff often struggled because his continual difficulties with work, an unstable and emotionally charged relationship with his wife, PTSD, and depression often fed off of one another. (R. at 302, 298, 296, 292 - 91, 286 - 81, 266, 432, 430, 420, 424). At one point, Plaintiff secured employment, but did not start because he believed his psychological condition would prevent him from performing successfully. (R. at 283).

In his final sessions with Plaintiff, Dr. Shreve opined that Plaintiff appeared to be fairing better in terms of mood and anxiety, and that his psychological condition was responding to medication. (R. at 266). Plaintiff's relationship with his wife also seemed to stabilize. (R. at 266). At his second to last session on August 8, 2007, Dr. Shreve noted that Plaintiff was especially communicative and insightful. (R. 430). Yet, at his September 5, 2007 session with Dr. Shreve, Plaintiff became particularly angry and defensive towards Dr. Shreve when he was informed that Dr. Shreve would be terminating the therapeutic relationship because of a job change the following month. (R. at 425). Plaintiff stated that he wished to terminate their sessions the same day, and not continue through October. (R. at 425). Dr. Shreve noted that despite some apparent progress in his preceding session, Plaintiff now appeared to be regressing, and left therapy on bad terms. (R. at 425).

Plaintiff continued psychotherapy with Erma Watt, C.R.N.P., after Dr. Shreve left. (R. at 415, 420, 424). In her first session, Ms. Watt noted that Plaintiff was frustrated, angry, and depressed. (R. at 415). He told Ms. Watt that unless his financial situation improved, he did not know how he would be able to change his psychological condition positively. (R. at 415). Otherwise, Plaintiff exhibited a wide range of affect, a neat and clean appearance, a relaxed and open demeanor, appropriate behavior, and ease of communication. (R. at 415).

Plaintiff's last visit with Ms. Watt was on February 26, 2008. (R. at 402). He generally exhibited euthymic mood, a range of affect, logical thought processes, a neat and clean appearance, relaxed and appropriate behavior, and the ability to develop a good rapport. (R. at 415, 413, 407, 404, 402). Plaintiff's psychological state did fluctuate, and he often suffered from intrusive traumatic memories, anger, irritation, avoidance behaviors, hypersomnia*fn4, anhedonia*fn5, poor sleep, poor concentration, lack of energy, and an unstable relationship with his wife. (R. at 402, 404, 407, 413- 15). On January 22, 2008, Ms. Watt assessed Plaintiff a GAF score of 59.

(R. at 404). At the last therapy session, she noted that Plaintiff had ceased taking his medication because it made him sleep too much. (R. at 402).

Over the course of his psychological and psychiatric treatment at the V.A., Plaintiff was prescribed a wide range of medications at varying doses that were adjusted frequently in an effort to control his PTSD, anxiety, depression, and other related problems/symptoms. These drugs included: Butalbital*fn6, Celexa*fn7, Depakote*fn8, Effexor*fn9, Hydroxyzine*fn10, Prozac*fn11, Tegretol*fn12, Trazodone*fn13, Wellbutrin*fn14, Valproic Acid*fn15, and Zoloft*fn16.

Rosemary C. Buzzard, C.N.R.P., began to oversee the management of Plaintiff's medications on September 5, 2007. (R. at 421-23). Ms. Buzzard noted Plaintiff showed minimal responsiveness to medication. (R. at 423).

On May 31, 2007, Plaintiff underwent a speech, language, and cognitive evaluation with Lorri MacIsaac, M.S. (R. at 231). Plaintiff reported that he had recently been experiencing memory loss, difficulty concentrating, and hearing loss in noisy areas. (R. at 231). Following the evaluation, Ms. MacIsaac concluded that Plaintiff's hearing was within the normal range, but that he did exhibit hearing loss at high frequency. (R. at 232). Plaintiff had no difficulties with orientation. (R. at 232). In terms of problem-solving and reasoning, Plaintiff was mildly deficient. (R. at 232). He also had difficulty with simple, non-verbal tasks, and with complex verbal and nonverbal reasoning. (R. at 232).

Ms. MacIsaac determined Plaintiff showed definite difficulty with respect to maintaining attention and coping with distractions. (R. at 232 - 33). Plaintiff was assessed as being in the fifty percent range when completing attention-testing tasks. (R. at 233). Plaintiff was also moderately deficient with respect to memory, particularly his recent and short-term memory. (R. at 233). Plaintiff's speech production was mildly deficient. (R. at 233). Ms. MacIsaac found he had difficulty finding the correct word to describe or identify objects, and sometimes incorrectly substituted one word for another. (R. at 233). Plaintiff was also noted as exhibiting difficulty with executive functions such as planning, decision-making, time management, and organization.

(R. at 233). Ms. MacIsaac recommended that Plaintiff seek speech therapy, and focus upon addressing deficits in memory, attention, executive function, and word retrieval. (R. at 233).

Following his session with Ms. MacIsaac, Plaintiff was evaluated by an occupational therapist, Michelle Mioduszewski, M.S. (R. at 234). Ms. Mioduszewski noted that Plaintiff was well-dressed, clean, and groomed, and exhibited no signs of difficulty with independent living skills. (R. at 234). Plaintiff was within functional limits with respect to range of motion, sensation, gross motor control, and fine motor control in his bilateral upper extremities. (R. at 234).

Ms. Mioduszewski determined that Plaintiff's visual skills were within functional limits for distance and peripheral vision, as was his tolerance for light. (R. at 235). However, his visual perception skills were in the low average range, and his visual motor assessment indicated personality disturbance. (R. at 235). In terms of cognition and executive functioning, Plaintiff was found to have difficulty maintaining attention when there were multiple distractions. (R. at 235). Plaintiff's had a significant deficit in impulse control. (R. at 235). Planning and organizational skills were also found to be lacking. (R. at 236). Plaintiff was found to exhibit frustration with more complex tasks. (R. ...


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