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Robert D. Malinowski v. Michael J. Astrue

July 26, 2012


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



Robert D. Malinowski ("Plaintiff"), commenced the instant action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"), 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 his applications on January 12, 2007, alleging disability since September 24, 2006 due to being a "slow learner" and "neurotic excoriations (sores on arms)" (AR 145-153; 195)*fn1 His applications were denied (AR 133-141), and following a hearing held on February 11, 2009 (AR 30-91), the administrative law judge ("ALJ") issued his decision denying benefits to Plaintiff on July 21, 2009 (AR 21-29).

Plaintiff's request for review by the Appeals Council was subsequently denied (AR 1-6), 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 the parties' cross-motions for summary judgment. For the reasons that follow, the Plaintiff's motion will be denied and the Commissioner's motion will be granted.


Plaintiff was 27 years old on the date of the ALJ's decision, and has a high school education (AR 28). He was previously employed as a maintenance worker, dishwasher and convenience store clerk (AR 196).

Medical History

Plaintiff was treated by David Dietman, M.D., a dermatologist, for neurotic excoriation*fn2 of his arms, hands and right leg beginning on June 21, 2005 (AR 400). Plaintiff saw Dr. Dietman on September 26, 2006, two weeks before his alleged disability onset date, who reported that the skin on his arms and legs was stable, but his right hand itched (AR 406). He was prescribed lotion and cream and was to return for follow-up in six months (AR 406).

On January 8, 2007, Dr. Dietman completed an Employability Assessment Form for the Department of Public Welfare ("DPW"), and checked a box stating that the Plaintiff was "permanently disabled" due to a primary diagnosis of neurotic excoriations (AR 425). As a secondary diagnosis, Dr. Dietman wrote: "pt. has IQ 79 -- stress of trying to work causes frustration -- leads to excoriations" (AR 425). On June 14, 2007, Dr. Dietman authored a letter stating that he treated Plaintiff for neurotic excoriations affecting his forearms, arms, and dorsal hands, and at times, his legs (AR 474). He further stated that Plaintiff's condition was chronic but that he responded to medications (AR 474). On December 10, 2007, Dr. Dietman completed another DPW form stating Plaintiff was "permanently disabled" for the same reasons set forth in the January 2007 form (AR 473).

On March 20, 2007, Steven Reilly, M.A., performed an intellectual evaluation pursuant to a request from the Commissioner (AR 427). Plaintiff reported that he lived with his brother (AR 427). He stated he was able to perform domestic chores and manage his own finances (AR 427). He denied any history of mental health treatment (AR 427). Plaintiff obtained a verbal IQ score of 88, a performance IQ score of 81, and a full scale IQ score of 84 (AR 427). Dr. Reilly noted that "little prompting was necessary" during testing, and he considered the results valid (AR 427). Dr. Reilly observed "mild" signs of pace and coordination difficulties during testing, but there were few signs of concentration or distraction difficulties (AR 427). Dr. Reilly found Plaintiff's cognitive abilities fell within the low average range of intellectual ability (AR 427). He concluded that Plaintiff was not limited or only slightly limited in all functional categories, except he was moderately limited in his ability to carry out detailed instructions (AR 428).

On April 2, 2007, Sanford Golin, Ph.D., a state agency reviewing psychologist, reviewed the medical evidence of record and found that Plaintiff had a low average IQ, but concluded that he had only mild limitations in his activities of daily living, social functioning, and in maintaining concentration, persistence or pace (AR 430-442).

On February 4, 2008, Plaintiff underwent a psychiatric evaluation performed by Matthew DeJohn, M.D. at Stairways Behavioral Health (AR 450-453). Plaintiff reported a history of borderline intellectual functioning (AR 450). He also reported a history of skin excoriations (AR 450). Plaintiff's mother reported that Plaintiff had been placed on Ritalin as a child for possible attention deficit hyperactivity disorder, but had not been on it for years (AR 450). Plaintiff indicated that he was asked to leave his restaurant job because he was having trouble focusing on tasks, but had kept his previous job for four and one half years (AR 450-451). He denied having any psychological symptoms, and reported no attention or concentration problems (AR 450). Plaintiff reported that he was living independently with his brother and was looking forward to finding employment (AR 451). Plaintiff stated he was "doing fairly well" and Dr. DeJohn noted that Plaintiff was not interested in medication (AR 451).

Dr. DeJohn found Plaintiff to be pleasant, cooperative and appropriately groomed (AR 452). His thought process was somewhat superficial, but otherwise linear and logical, and his responses were "very relevant" (AR 452). Dr. DeJohn also found that his memory and judgment were intact, and his insight was "fair" (AR 452). He concluded that Plaintiff "appear[ed] to be functioning quite well" and did "not appear significantly impaired in any manner" (AR 452). He noted that Plaintiff's skin excoriations could "theoretically" be stress related, but that Plaintiff was not reporting any stress (AR 452). He observed that Plaintiff's fingernails were "significantly long" and suggested that he cut them (AR 450; 452). Dr. DeJohn diagnosed Plaintiff with a learning disability by history; attention deficit hyperactivity disorder by history; and "borderline intellectual function versus low normal IQ" (AR 452). He was assigned a Global Assessment of Functioning ("GAF") score of 65 (AR 452). *fn3

Plaintiff returned for two counseling sessions in February and March 2008 (AR 455-457).

At both sessions, he denied any mental health symptoms and was reportedly "good natured for the most part" (AR 455). It was observed that Plaintiff had cut his fingernails and his excoriations had improved (AR 457).

On February 12, 2008, Plaintiff underwent a psychological evaluation performed by Byron Hillin, Ph.D through the Office of Vocational Rehabilitation to be utilized for future vocational planning and adjunct services (AR 460-471). Dr. Hillin reported that Plaintiff was fully cooperative, his answers appeared truthful, and he "gave good effort at psychological testing" (AR 460). Plaintiff reported that the longest he was employed was for almost five years at Gannon University, but he was terminated for allegedly inappropriately touching a girl (AR 461). He indicated that he enjoyed that job and worked approximately twenty to thirty hours per week (AR 462). Plaintiff reported that he lived with his brother, helped with the chores, enjoyed reading and watching television, and was able to ride the bus (AR 462). He saw his parents on a daily basis, and depended upon them for advice, social help and guidance (AR 462).

Dr. Hillin reported that Plaintiff obtained a verbal IQ score of 80, a performance IQ score of 80, and a full scale IQ score of 78 (AR 464). He noted, however, that Plaintiff was familiar with the multiple subtests and his scores may have been artificially inflated due to "test-retest practice effects" (AR 464). Plaintiff had fair attention, concentration, and memory, but his social judgment and reasoning were "low" (AR 464-465). His thoughts were relevant, coherent and goal directed (AR 464). Dr. Hillin found Plaintiff was literate, but that he had difficulty with abstract ...

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