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Steven Bush v. Michael J. Astrue

February 23, 2011


The opinion of the court was delivered by: Sheila K. ObertoUNITED States Magistrate Judge

(Doc. 2)



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for disability insurance benefits ("DIB") pursuant to Title II of the Social Security Act. 42 U.S.C. § 405(g). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1


Plaintiff was born in 1960 and completed the eleventh grade. (Administrative Record ("AR") 973-74.) Plaintiff previously worked as a sheet metal worker. (AR 976.) He stopped working on June 11, 2002, after falling from a ladder at work. (AR 975-76.) On November 26, 2002, Plaintiff filed an application for DIB, alleging disability beginning on June 11, 2002, due to depression and anxiety, dizziness, and pain in his left shoulder, neck, and low back. (AR 24, 111-13.)

A. Medical Evidence

1. Carol L. Lewis-Wintrode, Ph.D.

On August 28, 2002, Dr. Lewis-Wintrode, a licensed psychologist, performed a consultative examination of Plaintiff. Dr. Lewis-Wintrode determined that Plaintiff could perform simple and repetitive work activity, but that Plaintiff would have considerable difficulty maintaining his pace and some mild difficulty with maintaining his attention and concentration. (AR 29, 298-304.)

2. Ida M. Hilliard, M.D.

On September 16, 2003, a state agency psychiatrist, Ida M. Hilliard, M.D., completed a psychiatric review technique form in which she opined that, because of his anxiety, Plaintiff had

(1) mild restriction in activities of daily living; (2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) had one or two episodes of decompensation. (AR 480-81.)

In assessing Plaintiff's mental residual functional capacity ("RFC"),*fn2 Dr. Hilliard also opined that Plaintiff was moderately limited in his ability to (1) understand, remember, and carry out detailed instructions; (2) maintain attention and concentration for extended periods; (3) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (4) sustain an ordinary routine without special supervision; and (5) complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. (AR 469-70.)

3. Steven I. Subotnick, D.P.M., N.D., D.C.

As part of Plaintiff's worker's compensation claim, Dr. Subotnick, a podiatrist and chiropractor, opined that Plaintiff had reached a "permanent and stationary status" as of September 25, 2003, and was "totally disabled and unable to compete in any way on the open labor market" because of pain and loss of spinal motion. (AR 542, 548-49.)

4. Eric S. Morgenthaler, Ph.D.

On August 3, 2004, Dr. Morgenthaler, a licensed psychologist, performed psychological testing on Plaintiff to determine Plaintiff's personality profile. (AR 700-03.) Plaintiff's results on the Minnesota Multiphasic Personality Inventory-2 ("MMPI-2") revealed that Plaintiff "is likely exaggerating the extent of his current difficulties as he is reporting so many symptoms of acute, severe and unusual distress." (AR 701.) Plaintiff's "MMPI-2 profile is of questionable validity due to the high probability of symptom exaggeration." (AR 701.) Plaintiff "is prone to convert and displace feelings of emotional distress into somatic representations. Accordingly, there is a high probability that a significant psychological component underlies many of his current physical complaints." (AR 701.) Dr. Morgenthaler concluded that "the MMPI-2 data revealed signs of somatoform, depressive and anxiety disorders, within the context of likely exaggeration. In addition, the MMPI-2 revealed signs of histrionic and dependent personality dynamics." (AR 702.)

5. Richard Baker, M.D.

On September 20, 2004, Dr. Baker, an agreed orthopedist and specialist in occupational illness and injury, examined Plaintiff in connection with his worker's compensation claim. (AR 955-66.) Plaintiff exhibited multiple factors indicating that he was exaggerating his symptoms and limitations, as Dr. Baker believed that there was a "relatively significant psychosocial component to [Plaintiff's] presentation." (AR 28, 964). "Waddell's test is positive in four of five categories, consistent with a nonphysiologic element to the presentation." (AR 965.) On direct examination, Plaintiff exhibited a substantially reduced range of motion in his neck. (AR 28, 964.) On indirect observation, however, Plaintiff's range of motion in his neck was "significantly greater." (AR 964.)

Dr. Baker opined that Plaintiff experienced (1) spinal permanent disability described by a preclusion from heavy lifting, repeated bending and stooping; (2) left shoulder disability described by a preclusion from overhead work; (3) right upper extremity permanent disability described by a preclusion from repetitive, forceful grasping; and (4) headache disability described by slight to moderate headaches. (AR 965.) Plaintiff was, therefore, not able to return to work as a sheet metal worker. (AR 965.) Dr. Baker believed, however, that Plaintiff was not permanently and totally disabled from an orthopedic standpoint, but was able to participate in vocational rehabilitation. (AR 965.)

6. Robert C. Larsen. M.D., M.P.H.

On October 6, 2004, Dr. Larsen, a psychiatrist, examined Plaintiff in connection with Plaintiff's worker's compensation claim as an agreed medical examiner. Dr. Larsen noted the prior objective test results indicating Plaintiff was likely exaggerating his symptoms and concluded that Plaintiff may have opted to pursue obtaining Social Security disability benefits rather than genuinely wanting to improve and return to the workforce. (AR 28, 557-61.) Dr. Larsen opined that Plaintiff's mental condition should have stabilized as his physical condition had achieved maximum recovery as of September 25, 2003. (AR 34, 542, 558, 964.) "Given that the primary orthopedic condition is deemed to have stabilized[,] so too should the associated mood disorder." (AR 558.)

Dr. Larsen's evaluation of Plaintiff's work functions was as follows:

* Plaintiff's level of impairment in his ability to comprehend and follow instructions was "minimal." (AR 561.)

* Plaintiff's level of impairment in his ability to perform simple and repetitive tasks was "minimal." (AR 561.)

* Plaintiff's level of impairment in his ability to maintain a work pace appropriate to a given work ...

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