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Roberto v. Colvin

United States District Court, M.D. Pennsylvania

April 28, 2014

MICHAEL W. ROBERTO, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant

MEMORANDUM

WILLIAM W. CALDWELL, District Judge.

I. Introduction

Pursuant to 42 U.S.C. § 405(g), plaintiff, Michael W. Roberto, seeks review of a decision denying him supplemental security income under the Social Security Act. 42 U.S.C. §§ 1381-1383f. The defendant is Carolyn W. Colvin, the Acting Commissioner of Social Security.

Plaintiff claims to be disabled based on a combination of mental and physical problems. His mental infirmities include anxiety, depression, and bipolar disorder. His physical illnesses involve his left leg and back. He filed his application for benefits on April 8, 2010, (Tr. 18), [1] alleging a disability onset date of July 1, 2006. ( Id. ). He was twenty-seven years old on the date of his application. (Tr. 175).[2] On October 25, 2011, a hearing was held ( id. ), and on February 23, 2012, the administrative law judge (ALJ) denied benefits. (Tr. 27). On May 8, 2013, the Appeals Council denied a request for review. (Tr. 1).

In this action, Plaintiff claims the ALJ erred in the following ways. First, the ALJ rejected the opinions of Dr. Scott McKimm, his personal care physician, and Dr. Jawahar N. Suvarnakar, a consulting physician, on the issue of disability, without identifying contrary medical evidence. Second, the ALJ improperly relied on her own lay analysis of the medical evidence rather than on the opinions of the medical professionals appearing in the record. Third, the ALJ made a factual error in stating that Plaintiff had not received any treatment for his back or leg conditions for almost a year. Fourth, the ALJ improperly rejected Dr. Suvarnakar's opinion on the ground that the doctor's opinion appeared to be based on Plaintiff's own subjective reports. Fifth, the ALJ had a duty to contact Drs. McKimm and Suvarnakar to clarify their opinions when they were not apparent from the record. Sixth, the ALJ improperly relied on the description of Plaintiff's activities of daily living by Dr. Thomas E. Radecki, his treating psychiatrist, in the face of the testimony of Plaintiff's father, who testified that Plaintiff could not do these activities and that Plaintiff will falsely lead a person to believe he has done certain activities. Seventh, these activities were only sporadic and could not be used to decide Plaintiff was not disabled. Eighth, the ALJ improperly failed to assess the credibility of Plaintiff's father.

II. Background

A. Testimony at the Administrative Hearing

At the October 2011 hearing on his disability application, Plaintiff testified as follows, in pertinent part. His last job was as a home health care provider in 2006. He left it because the job "was too hard physically on his legs, cleaning the house." (Tr. 40). He has not worked anywhere since. (Tr. 40). Plaintiff treats with Dr. McKimm for edema. (Tr. 41). Plaintiff was taking Lasix for the edema, but it was not helping; the only thing that works is elevating his legs and body. (Tr. 41).

Plaintiff lives at his parents' home. (Tr. 39). They both work. (Tr. 40). He spends his days in the basement, keeping his legs elevated and trying not to be stressed. (Tr. 42). He keeps the shades in the house closed. (Tr. 44). He does not answer the door or the phone. (Tr. 44, 45). He can bathe and dress himself, but it takes some time because of the "impairments" between his legs and back. (Tr. 42). He does no chores around the house because of his legs and back. (Tr. 43). He does no shopping because of his legs and back and because of the stress and anxiety of going out and meeting people. (Tr. 43). He only gets three to five minutes of exercise at a time. (Tr. 43). He plays video games and watches television. (Tr. 43, 44). However, he cannot complete the video game nor remember the television show. (Tr. 50). He drives, but only when he has to, for example, to the clinic. (Tr. 47).

Plaintiff has swelling in his knees and ankles on a daily basis. (Tr. 48). It prevents him from being upright and moving. Plaintiff has had a number of surgeries on his legs, but they have not resolved the swelling or pain. (Tr. 48-49). For a number of years, Plaintiff was prescribed large doses of OxyContin to treat his pain. (Tr. 49). The drug ruined his life, financially, physically, and mentally. (Tr. 49).

Plaintiff's parents have tried to give him chores to do. However, if he tried to walk the dog, he would be in a lot of pain. (Tr. 51). If he tried to take the garbage out, he would get pains in his legs and the edema would come back worse. (Tr. 51).

Plaintiff's anxiety affects him three to five times per day. (Tr. 52). When it happens, he takes his medication and lies down. He usually falls asleep and can focus on what is causing the anxiety only after about an hour and a half to two hours. (Tr. 52).

Plaintiff has muscle spasms about ten times a day, each lasting for up to thirty seconds, after which he has to sit or lie down for up to half an hour. (Tr. 54). Plaintiff takes Baclofen for the muscle spasms. (Tr. 53). He also takes Clonazepam, Prevacid and Miralax. (Tr. 53). He has acid reflux disease (GERD) and takes the Prevacid for that. (Tr. 40, 41). Plaintiff takes methadone three times per week at Discovery House. (Tr. 42). The side effects of his medications are tiredness and insomnia. (Tr. 52).

Plaintiff denied that he has worked after 2006 in a business making chairs, in a business involving rough-cut lumbar, in a polishing business, or under the table. (Tr. 46). The only time he built an Adirondack chair was in high school. (Tr. 40). Additionally, Plaintiff has not hunted in ten years or walked the dog in five years. (Tr. 46, 51).

Plaintiff's father also testified at the hearing. He testified that Plaintiff does very little of anything and needs to be told to shower, eat, and clean up after himself. (Tr. 58-59). His parents have been unsuccessful in getting him to do any activities around the house. (Tr. 59). Plaintiff has difficulty focusing on topics, and goes on tangents during conversations. (Tr. 60, 63). Plaintiff's father testified that Plaintiff has not engaged in any activities like woodworking, cutting wood, or work in a polishing business, but that he often talks about things as if he has done them, when in reality he has not. (Tr. 66-67).

B. Medical History

As Defendant notes, Plaintiff claims a disability onset date of July 1, 2006, but submitted no medical evidence bearing on that date. On October 3, 2007, he was admitted to Discovery House for a methadone maintenance program to overcome an eleven-year opiate addiction. (Tr. 368). The intake form indicated he was looking for employment ...


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