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Reich v. Astrue

September 15, 2009

JACEK REICH PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Morton Denlow

MEMORANDUM OPINION AND ORDER

Claimant Jacek Reich ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant" or "Commissioner"), denying Claimant's application for Disability Insurance Benefits ("DIB"). Claimant raises the following issues in support of his motion: (1) whether the ALJ properly considered the evidence produced by Claimant's treating psychiatrist in his finding of Claimant's residual functional capacity ("RFC") and in posing hypothetical questions to the Vocational Expert; and (2) whether the ALJ's credibility finding regarding Claimant's testimony was patently wrong. For the following reasons, the Court grants Claimant's motion for summary judgment or remand and remands the case to the Commissioner for further proceedings consistent with this opinion.

I. BACKGROUND FACTS

A. Procedural History

Claimant initially applied for DIB on May 23, 2005, alleging a disability onset date of June 30, 2002. R. 43. The Social Security Administration ("SSA") denied his application on August 15, 2005. R. 55-59. Claimant then filed a request for reconsideration, which was denied on December 19, 2005. R. 47, 51-54. Thereafter, Claimant requested a hearing before an ALJ. R. 45-46.

On May 9, 2007, Administrative Law Judge Kenneth E. Stewart ("ALJ") presided over a hearing at which Claimant appeared with his attorney, Sandra Dye. R. 205-56. In addition to Claimant and his attorney, Dr. John Cavenagh, a medical expert, and Cheryl Hoiseth, a vocational expert, also testified at the hearing. Id. On October 25, 2007, the ALJ issued a decision finding Claimant was not disabled under the Social Security Act. R. 13-24. Specifically, the ALJ found Reich had "the residual functional capacity to perform simple repetitive unskilled light work," and that "there are jobs that exist in significant numbers in the national economy that the claimant can perform." R. 20, 23.

Claimant then filed for a review of the ALJ's decision to the Appeals Council, which denied Claimant's request on August 7, 2008. R. 5-7. Therefore, the ALJ's decision became the final decision of the Commissioner. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony -- May 9, 2007

1. Jacek Reich -- Claimant

At the time of the hearing, Claimant was 49 years old, married, and living with his wife, 23-year-old daughter, and 18-year-old son. R. 210-11. Claimant completed education through high school and attended college for a few months. R. 211. Claimant's past relevant work experience was as a computer operator and PC analyst for a metal wholesaler, Castle Metals. R. 211-12. Claimant has not worked since June 30, 2002, when his employment was terminated. R. 211, 218. Claimant was told "more or less" that he wasn't "fitting in with the job," but the company was letting everyone go and went under a month later. R. 218. Claimant's prior duties required him to spend approximately 55% of his time moving around, picking up boxes and computer hardware weighing 25 to 40 pounds frequently, and occasionally lifting packages in excess of fifty pounds. R 212-14. Claimant performed some supervisory duties. R. 215.

Claimant testified regarding a number of medications he was being prescribed by Dr. Michael Cohan. R. 116, 227. Among others, Claimant took Lithium for depression and Xanax for anxiety, in order to not "get freaked out by everything." R. 227. The Xanax was helping, but Claimant said he had been taking more of it "as of late." R. 228.

According to Claimant, he began experiencing symptoms of bipolar disorder in 1978 or 1979. R. 234. After some unsuccessful treatment, Claimant underwent electroshock therapy in 1978 or 1979. R. 235. Claimant underwent approximately thirty-five sessions, and was subsequently able to work successfully, while on medication, for a number of years. Id. Claimant was diagnosed as manic-depressive with bipolar disorder at that time. R. 235- 36. Claimant's condition was more even and well-controlled while on his prescribed medication, although he did still have some periods of mania and depression. R. 236-37. Claimant testified his condition has been "fairly good, . . . minus a few episodes here and there" since coming under the care of Dr. Timothy Cullinane. R. 237.

Claimant testified to having problems with short-term memory loss. R. 238. Claimant also claimed to have problems interacting with others. R. 238-40. He testified he sometimes avoids going out of the house out of fear that he may hurt somebody. R. 239.

On a typical day, Claimant performs simple, light chores around the house, such as laundry, light cleaning and yard work. R. 239, 246. He sometimes visits with family members, grocery shops once or twice a week, and interacts with his wife and children. R. 239. Claimant had been providing care for his mother, who suffered from Alzheimer's, for approximately four years. R. 246.

Claimant testified he had been experiencing less stress since he had stopped working.

R. 246-47. When the ALJ asked him if he had the ability to do "mentally easy jobs," Claimant responded "anything is possible I guess." R. 247. "[I]t would have to be a job that, you know, nobody interfered with me, they left me alone, they gave me work to do, I'd do my work and, you know I didn't have to answer to too many people about it." Id.

2. Dr. John Cavenagh -- Medical Expert ("ME")

The Medical Expert, Dr. John Cavenagh, found no physical impairment that would preclude Claimant from working. R. 223. The ME referenced Claimant's medical records, in particular a visit to a cardiologist, Dr. Andrew Rauh, who examined Claimant in March 2003 as a follow-up to his 1999 quadruple bypass and reported Claimant was doing well and was not experiencing any chest pain or shortness of breath. R. 132, 223. In May 2005, Claimant was examined by his treating physician, Dr. Cohan, who also described Claimant as "doing well." R. 224. Further, the ME noted Claimant was given a psychiatric evaluation in June 2005 by Dr. Vanessa Chang, who found that Claimant suffered from bipolar disorder, Type I, and that Claimant felt stable "as long as he takes his medications." Id.

The ME then discussed the RFC provided by Dr. Cohan in October 2005. R. 224-25. The ME regarded this RFC as "a rather draconian assessment" asserting that Claimant is incapable of even "low-stress jobs and is very unstable mentally," and found that it was "not supported by other evidence in the files." R. 224. The ME also discussed the RFC provided by Dr. Cullinane, which found Claimant was capable of low-stress jobs, but went on to say Claimant may miss work four or more days per month. R. 225. The ME highlighted inconsistencies between "the disturbance with attending work and the actual physical and mental diagnoses." Id.

The ME acknowledged Claimant had experienced significant physical health problems in the past, including the quadruple bypass in 1999, but said Claimant has "had a favorable course subsequently." Id. The ME described Claimant's bipolar disorder as "controlled fairly well with medications." R. 226. Overall, considering Claimant's medical records, the ME did not find that "either the mental or physical disorders meet or equal a listing." Id. The ME found nothing in Claimant's records that ...


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