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Misterka v. Colvin

United States District Court, D. Massachusetts

September 21, 2016

WALTER M. MISTERKA, JR., Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM AND REGARDING PLAINTIFF'S MOTION FOR ORDER REVERSING DECISION OF COMMISSIONER AND DEFENDANT'S MOTION FOR ORDER AFFIRMING COMMISSIONER (Dkt. Nos. 14 and 24)

          MARK G. MASTROIANNI UNITED STATES DISTRICT

         I. Introduction

         This is an action for judicial review of a final decision by Carolyn Colvin, the Acting Commissioner of the Social Security Administration (“Commissioner”), regarding an individual's entitlement to Social Security Disability Insurance (“SSDI”) benefits pursuant to 42 U.S.C. § 405(g) and Supplemental Security Income (“SSI”) pursuant to 42 U.S.C. § 1383(c)(3). Walter M. Misterka, Jr. (“Plaintiff”) asserts the Commissioner's decision to deny him such benefits-memorialized in an August 20, 2013 decision of an administrative law judge (“ALJ”)-was in error. Plaintiff has filed a motion for order reversing the decision of the Commissioner and the Commissioner has moved to affirm. For the reasons set forth below, the court allows the Commissioner's motion (Dkt. No. 24) and denies Plaintiff's motion (Dkt. No. 14).

         II. Background

         A. Procedural History

         Plaintiff applied for SSDI and SSI on November 10, 2011 and alleged disability since December 15, 2008. (Administrative Record (“A.R.”) 224-32, 238-51.) Plaintiff was notified by the Social Security Administration that his claims had been initially denied on January 12, 2012 and had subsequently been denied upon reconsideration on May 31, 2012. (Id. at 106-09, 116-21.) Plaintiff requested a hearing in front of an administrative law judge, which took place on August 19, 2013. (Id. at 122-23, 200-04.) In a written decision, the ALJ determined Plaintiff was not disabled. (Id. at 8-17.) The Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision final and ripe for judicial review. (Id. at 1-4.) Thereafter, Plaintiff filed the instant action, the Commissioner compiled the administrative record, and the parties filed the cross-motions presently at issue.

         B. Medical History on Record

         Plaintiff alleges disability due to mental health problems and insomnia. (Id. at 10, 31.) Plaintiff was 44 years old on the alleged disability onset date of December 15, 2008. (Id. at 34.) He completed high school and his past relevant work experience has been that of a forklift operator, insulation installer, machine operator, and pest control worker. (Id. at 50-51.)

         Beginning in October 2009, Plaintiff sought treatment at YOU, Inc. Southbridge Family Center for symptoms of anxiety and feeling overwhelmed by family and financial responsibilities. (Id. at 347.) At intake, Plaintiff was diagnosed with “adjustment disorder with mixed anxiety and depressed mood” and a Global Assessment of Functioning (“GAF”) score of 55.[1] (Id. at 354.) In November 2010, Plaintiff was diagnosed by a YOU, Inc. clinician with generalized anxiety disorder and a GAF score of 51. (Id. at 346.)

         On June 30, 2011, Plaintiff began therapy with Thomas Porter, LICSW at Harrington Behavioral Health, where he reported “struggling with panic attacks and being out of work for two years due to a felony on his [criminal offender record information (“CORI”)].”[2] (Id. at 362.) Plaintiff also requested “help with his current marriage around communication issues” and medications to help him relax and sleep. (Id.) A mental health examination conducted by Mr. Porter was normal aside from observed anxious mood and racing thoughts. (Id. at 363.) A functional status assessment noted Plaintiff required no assistance caring for himself, remembering everyday details, handling finances, shopping, driving, or getting along with others, but did note that he was unable to seek, obtain, and maintain employment. (Id.) Plaintiff was diagnosed with panic disorder without agoraphobia and a GAF score of 45, indicating a serious impairment.[3] (Id. at 364.)

         At a July 2011 appointment with Mr. Porter, Plaintiff again reported being unable to obtain employment due to his criminal history. (Id. at 365.) On the mental status examination, Mr. Porter reported that Plaintiff's short term memory was impaired, his attention span was decreased, and a decrease in concentrating ability was observed. (Id.) Mr. Porter again noted Plaintiff exhibited “racing thoughts.” (Id.) Nonetheless, Mr. Porter noted that Plaintiff “presented as stable and interactive.” (Id.) At appointments on October 20, 2011 and October 27, 2011, Plaintiff again reported being unable to obtain work due to his criminal history and expressed feeling depressed that he was unable to provide for his family. (Id. at 367, 369.) At both visits, Mr. Porter reported decreased attention span, decreased concentrating ability, and anxious mood. (Id.) Mr. Porter again noted that Plaintiff “presented as stable and interactive.” (Id.) At the October 27th appointment, Mr. Porter reported Plaintiff's problems included “anxiety and panic attacks due to current stressors of being unemployed and not having money enough to make life a little easier” and “feel[ing] so depressed each day about not working that [he] lose[s] [his] motivation to even get up in the morning.” (Id. at 371.)

         On November 8, 2011, Plaintiff was evaluated by Resul Ozbayrak, M.D. of Harrington Behavioral Health. (Id. at 374-76.) The mental status examination was normal and Plaintiff's mood was “appropriate” without anxiety or depression. (Id. at 375.) Dr. Ozbayrak diagnosed anxiety disorder and episodic mood disorders and assigned a GAF score of 55, indicating moderate impairment. (Id. at 375-76.) A week later on November 15, 2011, Mr. Porter reported Plaintiff exhibited a decreased attention span, decreased concentrating ability, and anxious mood. (Id. at 377.) Then, on November 23, 2011, Dr. Ozbayrak again reported normal findings on the mental status examination and reported “appropriate, not agitated, not anxious and not depressed” mood. (Id. at 379.) Harrington Physician Services records from December 2, 2011 indicate a diagnosis of bipolar disorder and chronic pain. (Id. at 403.)

         In April 2012, Mr. Porter completed a Psychiatric Disorder assessment form, co-signed by Dr. Ozbayrak, reporting Plaintiff suffered from episodic mood disorder and anxiety and had a GAF score of 45, indicating serious impairment. (Id. at 408-10.) The report stated Plaintiff lacked energy and motivation, had poor focus and memory, could not sustain concentration and attention for extended periods without distraction by psychologically based symptoms, and could not remember work-like tasks or instructions.[4] (Id. at 408.) The report also stated Plaintiff had poor hygiene, was irritable with others, and would be unable to cope with an employer's criticism. (Id. at 409.) The report stated Plaintiff had not resigned from or been fired from jobs because of psychiatric symptoms. (Id.) The report also indicated psychological testing had not been done. (Id.)

         On January 10, 2012, state agency consultant Lisa Fitzpatrick, Psy.D. found that some of Plaintiff's limitations related to his anxiety and depression would restrict him to jobs with simple, routine tasks with limited public contact, but ultimately found him not to be disabled. (Id. at 60.) Dr. Fitzpatrick found moderate limitations with respect to Plaintiff's attention, concentration, timeliness, and ability to complete a normal workday without interruptions from psychological based symptoms. (Id. at 61-62.) On May 30, 2012, state agency consultant Jan Jacobson, Ph.D. also found Plaintiff not disabled, but restricted to simple routine tasks with limited public contact. (Id. at 83, 87.)

         During medication visits in January, February, March, May, July, August, and October 2012, Dr. Ozbayrak reported normal findings on Plaintiff's mental status examinations and observed that Plaintiff's mood was appropriate, not agitated, and not anxious. (Id. at 425, 429, 432, 486, 487, 489, 490). In October 2012, Plaintiff returned to therapy with Mr. Porter. (Id. at 491.) Plaintiff reported that Dr. Ozbayrak said Plaintiff “was no longer disabled and could return to work.” (Id.) Mr. Porter again noted that Plaintiff's criminal history “is keeping him from working.” (Id. at 492.) A mental status examination was normal aside from an anxious mood and racing thoughts. (Id.) Mr. Porter assessed a GAF score of 50, indicating serious impairment. (Id. at 493.)

         On June 19, 2012, clinical neuropsychologist Jill Damon-Minow, Psy.D. conducted a neuropsychological evaluation, concluding Plaintiff primarily demonstrated impairments in concentration and cognitive processing speed, and that Plaintiff's “severe current levels of depression and anxiety are [very likely] primary contributing factors to the deficits observed.”[5] (Id. at 499-504.) Dr. Damon-Minow noted Plaintiff was appropriately groomed and “performed within normal limits on the first trial of a recognition memory symptom validity test.” (Id. at 500.) Dr. Damon-Minow concluded that the “test results are not suggestive of a neurodegenerative condition.” (Id. at 502.)

         On January 9, 2013, psychiatrist David Morin, M.D. completed a check-box assessment form, indicating Plaintiff had a number of marked limitations, including poor concentration and focus, which affect his ability to perform work-related activities. (Id. at 524-26.) On January 20, 2013, Dr. Morin reported the mental status examination was normal aside from anxiety and depressed mood, and found Plaintiff's short term, remote, and recent registration memory intact. (Id. at 559.) On February 13, 2013, Dr. Morin observed Plaintiff with an appropriate, not anxious or depressed mood and again noted a normal mental status examination. (Id. at 560.) On February 14, 2013, Dr. Morin diagnosed Plaintiff with anxiety disorder, bipolar disorder, episodic mood disorder, and panic disorder without agoraphobia, and a GAF score of 55, ...


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