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Fogarty v. Colvin

United States District Court, Middle District of Pennsylvania

May 29, 2014

ALEX J. FOGARTY, Plaintiff,


Robert D. Mariani, United States District Judge


Plaintiff Alex J. Fogarty has filed this action seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Fogarty's claim for supplemental security income benefits.

Fogarty protectively filed[1] his application for disability insurance benefits on November 17, 2008. Tr. 13, 105. Fogarty claims that he became disabled on April 27, 2004. Tr. 107. Fogarty has been diagnosed with several impairments, including blindness in his right eye, depression, anxiety disorder, post-traumatic stress disorder, oppositional defiance disorder, and marijuana dependence. Tr. 15. On March 30, 2009, Fogarty's application was initially denied by the Bureau of Disability Determination. Tr. 83.

On May 13, 2009, Fogarty requested a hearing before an administrative law judge ("ALJ"). Tr. 90. The ALJ conducted a hearing on June 29, 2010, where Fogarty was represented by counsel. Tr. 31-54. On September 21, 2010, the ALJ issued a decision denying Fogarty's application. Tr. 13-23. On June 20, 2012, the Appeals Council declined to grant review. Tr. 1. Fogarty filed a complaint before this Court on August 24, 2012. Supporting and opposing briefs were submitted and this case became ripe for disposition on February 26, 2013, when Fogarty declined to file a reply brief.

Fogarty appeals the ALJ's determination on four grounds: (1) the ALJ erred in finding that Fogarty's mental impairments did not meet or equal a listing at step three, (2) the ALJ improperly evaluated and/or reached an improper credibility determination regarding Fogarty's subjective complaints of physical symptoms, (3) the ALJ erred in failing to account for the side effects or effectiveness of Fogarty's medications, and (4) the ALJ erred in finding that Fogarty could do work at any exertional level. For the reasons set forth below, the decision of the Commissioner is affirmed.

Statement of Relevant Facts

Fogarty is 24 years of age, obtained his GED, and is able to read, write, speak and understand the English language. Tr. 34. Fogarty has not had any vocational training, and has no past relevant work. Tr. 21, 34, 130.

A. Fogarty's Physical Impairments

On April 27, 2004, a piece of glass flew into Fogarty's right eye while he was playing basketball; this piece of glass created an "ocular wound" that extended "across the inferior aspect of the cornea from approximately 7 o'clock to 5 o'clock, and then extended radially into the sclera for another approximate 4 mm at the 5 o'clock hour." Tr. 170, 177. Fogarty's treating physician noted that the laceration to created a "ruptured globe;" Fogarty underwent "ruptured globe repair" surgery that night in an attempt to repair the damage done to his eye. Tr. 169. Fogarty underwent two further surgeries in an attempt to restore vision in his eye. Tr. 190, 249. Unfortunately, the surgeries were unsuccessful and on May 7, 2007, it was noted that Fogarty had only light perception in his right eye. Tr. 196. It is undisputed that Fogarty is essential blind in his right eye today, with no hope that he will regain vision in this eye.

When Fogarty was a child, he had suffered from three seizures, one in 1998, and two in August of 2000. Tr. 422. An MRI scan of Fogarty's brain was performed on November 14, 2000; this scan was unremarkable except for a Chiari I Malformation.[2] Tr, 412. A January 2002 EEG was within normal limits. Tr. 419. On January 13, 2003, Glenn Stayer, MD diagnosed Fogarty with seizure disorder, but noted that Fogarty had not taken seizure medication since July 2002 and had not had a seizure since 2000. Tr. 422. On October 23, 2007, Fogarty suffered another seizure; he was not diagnosed with seizure disorder at that time, and a CT scan revealed no abnormalities. Tr. 309-18, 321. On March 26, 2009, both Fogarty and his mother stated that he had previously suffered from seizures, but he "grew out of the disorder. Tr. 376-77.

Based on the evidence contained in Fogarty's medical records Maura Smith-Mitsky, MD, completed a physical residual functional capacity assessment. Tr. 296-302. Dr. Smith-Mitsky opined that Fogarty had no exertional limitations whatsoever, as well as no postural, manipulative, communicative, or environmental limitations. Tr. 297-99. Dr. Mitsky-Smith did believe that Fogarty was limited in his depth perception and field of vision. Tr. 298.

B. Fogarty's Mental Impairments

Medical records relating to Fogarty's mental impairments begin on February 10, 2009, when Fogarty presented to Jennifer Brant, MS for an initial intake session relating to anxiety and depression. Tr. 278. Fogarty continued to receive treatment from Ms. Brant through June of 2010;[3] at these sessions Fogarty frequently reported decreased anxiety and depression, although he did often report increased anxiety, particularly when he was dealing with legal issues or traumatic events. Tr. 380, 381, 383, 387, 402, 403.

On March 26, 2009, Fogarty had his first appointment with Elmer Cupino, MD, and Dr. Cupino's assistant, Erica McDonald, PA-C. Tr. 376. Fogarty noted that nothing made him happy, and he would start shaking badly when he was around glass or flying objects. Id. Fogarty reported that he had trouble concentrating, but that if he were "interested in something, [he] could concentrate." id. Fogarty also relayed that he had significant anger issues throughout his life, and would occasionally punch walls. Id. Fogarty admitted that he did not listen to authority figures and had difficult taking orders; to this end, he stated that he had left six different jobs after only one day because he could not tolerate being told what to do all day. Id. Dr. Cupino[4] noted that Fogarty's mood was euthymic with a congruent affect and assessed Fogarty with a GAF score of 50-55.[5] Tr. 378. Fogarty was diagnosed with chronic post-traumatic stress disorder, oppositional defiance disorder, and marijuana dependence, although bipolar disorder was ruled out. id.

On April 22, 2009, Fogarty had a follow-up appointment with Dr. Cupino. Tr. 373. At this appointment, Fogarty complained of crying one minute and being angry the next; he reported his mood was three out of ten. Tr. 373-74. Dr. Cupino noted that Fogarty had a depressed mood with a constricted affect, and assigned a GAF score of 50-55. Tr. 373. Dr. Cupino increased Fogarty's does of Zoloft. Tr. 374. At Fogarty's next appointment on May 20, 2009, he reported that his mood was much better, and he had noticed a fifty percent improvement since his Zoloft dose was increased. Tr. 371. Dr. Cupino noted that Fogarty had a euthymic mood with a "brighter affect" and assigned a GAF score of 65.[6] Id.

On July 1, 2009, Fogarty reported that while Zoloft had worked for a while, he eventually cried for a week straight and had suicidal thoughts. Tr. 369. At that point, Fogarty stopped taking Zoloft and reported that these symptoms disappeared. Id. Fogarty stated that he was very upset because he had recently witnessed his friend's brother die after being hit by a car. Id. Dr. Cupino noted that Fogarty had a euthymic mood, but assigned a GAF score of 55. Id. On August 12, 2009, Fogarty had another appointment with Dr. Cupino. Tr. 266. Fogarty reported constant panic attacks and a ...

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