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Mark R. v. Commissioner, Social Security Administration

United States District Court, N.D. Georgia, Atlanta Division

September 10, 2019

MARK R., Plaintiff,



         Plaintiff in the above-styled case brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration which denied his disability application. For the reasons set forth below, the court ORDERS that the Commissioner's decision be AFFIRMED.

         I. Procedural History

         Plaintiff filed an application for a period of disability and disability insurance benefits on March 2, 2015, alleging that he became disabled on June 29, 2013. [Record (“R.”) at 16, 119, 251-57]. After Plaintiff's application was denied initially and upon reconsideration, a hearing was held by an Administrative Law Judge (“ALJ”) on August 24, 2017. [R. at 16, 56-109, 119-51]. The ALJ issued a decision denying Plaintiff's claim on December 21, 2017, and the Appeals Council denied Plaintiff's request for review on May 9, 2018. [R. at 1-7, 16-37]. Plaintiff filed a complaint in this court on June 26, 2018, seeking judicial review of the Commissioner's final decision. [Doc. 1]. The parties have consented to proceed before the undersigned Magistrate Judge.

         II. Facts

         The ALJ found that Plaintiff has mild degenerative disc disease of the lumbar spine with Schmorl's node at inferior end plate of L2, depressive/affective disorder, and obsessive compulsive/anxiety disorder. [R. at 18]. Although these impairments are “severe” within the meaning of the Social Security regulations, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. at 20-23]. The ALJ found that Plaintiff is unable to perform any of his past relevant work. [R. at 35]. However, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. [R. at 36]. As a result, the ALJ concluded that Plaintiff has not been under a disability from June 29, 2013, the alleged onset date, through the date of the ALJ's decision. [R. at 37].

         The decision of the ALJ [R. at 16-37] states the relevant facts of this case as modified herein as follows:

         The claimant has a history of impairments dating to the 1980's and 1990's. He reports having diabetes since 1989, a history of epilepsy since 1995, a history of chronic hepatitis C since 1995, and hypertension for 20 years. The claimant worked 20 to 25 years with these impairments, performing medium and heavy exertional level work. (Exhibit 6E). He alleges that he became disabled from working on June 29, 2013, due to type 1 (insulin-dependent) diabetes mellitus, epilepsy, chronic depression, chronic low back pain due to osteoarthritis, chronic hepatitis C, and hypertensive cardiovascular disease. (Exhibit 2E, p. 2). The claimant is 63 years old and was advanced age at his alleged onset date. He has not worked since the alleged onset date, and has not applied for Social Security Administration (“SSA”) early retirement benefits. The claimant acknowledges that he stopped working on the alleged onset date because he was laid off. (Exhibit 2E, p. 2).

         In October 2012, months before the claimant was laid off on his alleged onset date, he was seen by his longtime treating doctor, Thomas DiFulco, M.D., for follow up of diabetes and hypertension. The claimant's blood sugars were “doing well” and his last hemoglobin A1C was 5.6. Hypertension was stable. He also had experienced “no seizures in many years” and took phenobarbital. (Exhibit 4F, p. 7). Musculoskeletal exam was normal, memory was normal, poor judgment and insight were noted, and there was edema noted in his extremities. Medications were continued, including hydrocodone for low back pain, with Dr. DiFulco noting that the claimant “uses this for [low back pain] caused by lifting heavy objects at work.” (Exhibit 4F, pp. 8-9; Exhibit 11F, p. 67; Exhibit 12F, p. 20).

         In October 2013, the claimant reported that he was depressed since he lost his job and that his sugars were fluctuating because he was not being regular with mealtimes. He was “not having problems with chest pain, shortness of breath, dizziness, or swelling.” (Exhibit 4F, p. 13; duplicate at Exhibit 8F, p. 50). On exam, the claimant appeared depressed but had appropriate mood and affect, and normal insight and judgment were noted. Musculoskeletal exam was normal, and he had no edema. He was started on Paxil for depression. (Exhibit 4F, pp. 15-16; duplicate at Exhibit 8F, pp. 52-53; Exhibit 12F, p. 16).

         In November 2013, the claimant reported having a lot more motivation since he started taking Paxil, and he stated that he “thinks a lot of the problem is situational due to not having a job.” He weighed 180 pounds with a body mass index (“BMI”) of 26.58, and his blood pressure was 118/78. (Exhibit 4F, p. 18; duplicate at Exhibit 8F, p. 32; Exhibit 12F, p. 13). A cursory exam was unremarkable. (Exhibit 4F, p. 19).

         Handwritten progress notes from Dr. DiFulco from April 2014 through January 2016 describe cursory exams at best, including blood pressure readings. (Exhibit 12F, pp. 1-8, 11-12). Otherwise, the doctor's treatment notes reveal that Plaintiff's vital signs were taken and lab tests were ordered during office visits or that Plaintiff did not see Dr. DiFulco at all but simply called the office for medication management. (Exhibit 4F, 7F, 8F, 9F, 10F, 11F).

         PACT Atlanta treatment records document a diagnosis of obsessive-compulsive disorder (“OCD”), as well as bipolar disorder NOS, personality disorder traits, and a history of alcohol dependence in remission. (Exhibit 1F, 5F, 15F). Depression was noted to be situational related to the work layoff and his father's passing. (Exhibit 1F, pp. 1, 25). The claimant began treatment after being arrested for shoplifting coins in June 2014. (Exhibit 1F, pp. 3, 25). Treatment records from PACT Atlanta note that he had begun collecting coins after he lost his job and that he may have had a manic episode prior to this theft. (Exhibit 1F, pp. 9, 27). He had increased anxiety related to this event with 12 hours spent in jail. (Exhibit 1F, p. 25).

         Based on psychiatric evaluations by Todd Antin, M.D., in July 2014, the claimant was diagnosed with alcohol dependence in remission, bipolar NOS, and OCD. Paxil was increased for OCD tendencies. (Exhibit 1F, pp. 18, 21, 27). His case was diverted into the local mental health court. (Exhibit 1F, pp. 1, 3). Treatment records in February 2015 show that the claimant reported that he could no longer work due to both medical and psychiatric reasons and that he remained very depressed overall, with little response to Paxil. (Exhibit 1F, p. 2; duplicate at Exhibit 5F, p. 12). However, Dr. Antin noted in September 2014 that medications were “working effectively but he has neglected his therapy to a certain extent.” (Exhibit 1F, p. 16). Therapy notes indicate that his treatment was effective. (Exhibit 1F, pp. 6, 8, 11, 13, 19, 23). Mental status exams consistently described normal concentration and attention, normal/intact memory, and normal/good judgment. (Exhibit 1F, pp. 1, 9, 15, 17; Exhibit 3F, p. 4).

         On February 9, 2015, the claimant presented to Dr. DiFulco for a “family consultation.” The treatment record reflects no exam, but labs were ordered, and diabetes mellitus, juvenile, was assessed as controlled. (Exhibit 4F, pp. 36-38). Contemporaneous handwritten progress notes indicate a cursory exam, noting that the claimant was “chronically ill appearing, ” still with no blood pressure reading. The notes also indicate that the claimant, his mother, and his sister were discussing disability and asking Dr. DiFulco for a letter stating that the claimant was disabled. (Exhibit 7F, p. 5; duplicates at Exhibit 4F, p. 44; Exhibit 12F, p. 8).

         In March 2015, a month after the claimant told Dr. Antin that he remained very depressed overall, he told his therapist that “he has been feeling much less depressed, much better since seeing Dr. Antin recently, believes meds are helping plus the increased socialization he has been experiencing as part of his legal requirements for diversion program, mens group he has been attending.” (Exhibit 5F, p. 9). Therapy notes indicate that the claimant's current treatment was effective. (Exhibit 5F, pp. 1, 3, 6, 7, 10). Dr. Antin opined that the claimant was “currently functioning at an improved level” and “showing good improvement in mood symptoms.” (Exhibit 5F, pp. 2, 4).

         At a consultative exam in May 2015, the physical and mental status exams were unremarkable. The claimant reported that all the medications that he had taken for years worked. X-rays showed mild degenerative changes of the lumbar spine with no acute osseous pathology, i.e., disc space narrowing and small vertebral body osteophyte formation at ¶ 2-3, minimal disc space narrowing at ¶ 4-5, and mild facet arthropathy at ¶ 4-5 and L5-S1. (Exhibit 3F; duplicate x-ray at Exhibit 18F, p. 5). Based on the history given and exam findings, Jessie Al-Amin, M.D., diagnosed type 1 diabetes mellitus on insulin, history of epilepsy with no recent seizures on medication, chronic depression currently asymptomatic except for insomnia with medication, chronic low back pain secondary to osteoarthritis, mild degenerative changes of the lumbar spine noted on x-ray, and chronic hepatitis C.

         Dr. Al-Amin opined that the claimant can reach overhead and handle objects without difficulty and has no difficulty climbing stairs. Apparently based on the claimant's report that he can lift 30 pounds, sit for two hours, and stand for one hour, Dr. Al-Amin opined that the claimant may have difficulty carrying more than 30 pounds and may have difficulty with prolonged sitting and prolonged standing. On exam, the claimant had normal motor strength of 5/5 throughout, normal gait and posture, and only a slightly reduced range of motion in the neck, back, hips, and knees. The claimant had no difficulty rising from a sitting to standing position, could bend over while sitting, but had difficulty squatting. Dr. Al-Amin opined that stooping or bending may be problematic. He also noted that the claimant's fine and gross motor coordination appeared intact and that the claimant had good hand-eye coordination. (Exhibit 3F).

         On June 1, 2015, the claimant presented after falling in the bathroom and hurting his ribs. X-rays were ordered. The claimant weighed 201 pounds with a BMI of 29.68. Blood pressure is not indicated, but unspecified hypertension, as well as controlled diabetes and depression, were assessed. (Exhibit 4F, pp. 83-86). Contemporaneous handwritten progress notes show that the claimant's blood pressure was 88/60 and that he was ill-appearing and very tender at the right chest wall. Lasix was discontinued and other blood pressure medications were put on hold. (Exhibit 12F, p. 6). X-rays on June 1, 2015, showed suspected mildly/minimally displaced fracture of the seventh right-sided rib. (Exhibit 4F, p. 67; duplicates at Exhibit 7F, p. 4; Exhibit 18F, p. 11).

         On July 13, 2015, Dr. DiFulco noted that the claimant had fallen one time in the last year and was “not at risk for falls.” (Exhibit 4F, pp. 93-97; multiple duplicates at Exhibit 10F). The contemporaneous handwritten progress note shows the claimant had “started walking again” and that he had lost eight pounds since his last visit. (Exhibit 12F, p. 4).

         From July 21, 2015, through September 25, 2015, there are only patient communications with Dr. DiFulco. (Exhibit 7F, pp. 35-46; duplicates at Exhibit 10F). As seen on October 12, 2015, the claimant weighed 203 pounds, with a BMI of 29.98. (Exhibit 10F, p. 14). A cursory exam was unremarkable. Dr. DiFulco noted that the claimant's mood seemed positive. (Exhibit 12F, p. 2). On October 15, 2015, Dr. DiFulco stated that the claimant's diabetes was “well controlled.” The physician advised the claimant to continue working on his diet and to exercise regularly if possible. (Exhibit 10F, p. 10). Patient communications and incoming calls for medications follow through December 2015. (Exhibit 11F, pp. 95-107).

         On January 11, 2016, the claimant was seen by Dr. DiFulco and weighed 211 pounds with a BMI of 31.16. According to the handwritten progress note, the claimant was feeling good. “He says sometimes he's manic, then he gets lethargic. He says diet is not good.” A cursory exam was unremarkable. (Exhibit 11F, p. 87; Exhibit 12F, pp. 1, 11).

         On January 13, 2016, Dr. DiFulco informed the claimant that he currently had a hemoglobin A1C of 7.4 and that no change in medication was needed. The physician advised the claimant to “focus more on the need to cut back on calories and foods that are not good for a diabetic diet.” Dr. DiFulco also wrote, “This is the highest A1C you have had to my knowledge.” (Exhibit 11F, pp. 79, 83).

         In February 2016, the claimant presented to Dr. Antin for medication refills. The claimant reported that medications were working well. He also reported visiting his mother frequently. He stated that he “knows for a fact that he will never work again” and that he felt that being unemployed had made him gain weight. Treatment notes show that the claimant was “doing better with his diet because he cannot stand being overweight anymore.” Mental status exam showed normal concentration and attention, impaired short-term memory, good judgment, no change in energy, normal psychomotor activity, and euthymic mood. Dr. Antin noted that the claimant “has made great strides in his overall treatment” and was tolerating medications well other than some motor side effects. (Exhibit 15F, pp. 3-4).

         Dr. DiFulco ordered studies on April 27, 2016, to help identify and support the claimant's history of seizures and low back pain. (Exhibit 18F, pp. 12-27). MRI of the lumbar spine again showed Schmorl's node involving the inferior end plate of L2, with adjacent edema which might be the source of his lower back pain, but “there is no posterior disc bulging or stenosis at this level.” There was also a minimal disc bulge at ¶ 1-2, but no stenosis. (Exhibit 18F, pp. 28-29). Dr. DiFulco advised the claimant that the Schmorl's node at ¶ 2 “is a protrusion of cartilage into the vertebral bod[y] end plate [and] into the vertebra. This is likely the cause of your chronic back pain.” (Exhibit 19F, p. 2). An EEG was normal. (Exhibit 18F, p. 30).

         In a medical source statement dated April 6, 2016, Dr. Antin opined that the claimant has good ability to make performance adjustments for simple job instructions and function independently, but only fair ability to use judgment, follow rules, interact with a supervisor, maintain attention and concentration, and make adjustments for detailed but not complex job instructions. Dr. Antin opined that the claimant has poor ability to make adjustments for complex job instructions, relate to coworkers, deal with the public, and deal with work stress. Dr. Antin explained generally that the claimant has poor ability to work with others. Dr. Antin found that the earliest date of the proposed limitations was June 21, 2014. (Exhibit 14F, pp. 3-4; duplicate at Exhibit 16F). The psychiatrist opined that the claimant has only fair ability to make personal social adjustments. Dr. Antin indicated that the claimant has many symptoms of a depressive syndrome but no symptoms of a manic syndrome or bipolar syndrome. (Exhibit 14F, pp. 4-6). Dr. Antin assessed marked difficulties in maintaining social functioning and moderate deficiencies of concentration, persistence, or pace. Dr. Antin opined that the claimant's condition prevents him from engaging in gainful employment generally due to depression, fatigue, poor concentration, and poor socialization. (Exhibit 14F, pp. 7-8).

         In May 2016, the claimant reported to Dr. Antin “that his mood has been stable lately” and that “he feels a lot better.” The claimant stated that he often visited his mother with his sister, that he had a good support system, and that his sleep had improved. He also stated that he felt that his short term memory was getting worse and that his concentration had decreased. He reported that the mental health court diversion program had “changed his life, it made him more social.” Dr. Antin noted that the claimant had done so well that he was being released from the program the next month. (Exhibit 20F, pp. 8-9; duplicate at Exhibit 23F, pp. 7-8).

         As next seen by Dr. Antin on September 8, 2016, the claimant stated “that his mood has been stable lately. He feels better when he is able to interact with people and socialize. His mother passed away 2 months ago, after which his brother moved back here. He stated that he feels better, . . . he might be a little depressed from time to time but nothing major, not like before.” Although the court diversion program had ended in June 2016, the claimant “continues to attend the meetings because he feels that they help him feel less isolated. He states that the program made him more social, and he states that he is happier. He was placed in the program as a result of shoplifting and subsequent arrest.” Dr. Antin assessed that the ...

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