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Charles R. Jacobs v. Michael J. Astrue

March 14, 2011


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

(Docs. 1, 18)



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") payments pursuant to Title II of the Social Security Act (the "Act"). 42 U.S.C. §§ 401, et seq. 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 1967, has a high school education, and previously worked as a correctional officer and as a driver/carrier for Airborne Express. (Administrative Record ("AR") 20, 145.) On January 8, 2007, Plaintiff filed an application for DIB, alleging disability beginning September 1, 2006, due to high blood pressure, an enlarged heart, and migraines. (See AR 117-46.)

On August 3, 2006, Dr. Pam Janda diagnosed Plaintiff with elevated blood pressure, osteopenia, and hyperlipidemia.*fn2 (AR 236.) On August 29, 2006, Plaintiff was again examined by Dr. Janda and reported dizziness, pain in his left ear radiating to his left eye, vomiting, and feelings of weakness and clamminess. (AR 235.) Dr. Janda referred Plaintiff to the emergency room to rule out a heart attack. (Id.) In emergency care, Plaintiff was administered an electrocardiogram ("ECG"), a computed tomography ("CT") scan, a spinal tap, and x-rays of his chest. (AR 209-31.) The results of the CT scan were negative (AR 220), x-rays of his chest revealed a "[p]robable right pericardial fat-pad[,]" but "[n]o accute cardiopulmonary disease identified," (AR 221) and the ECG results were normal (AR 209). Plaintiff was discharged from the emergency room the same day he was admitted. On September 1, 2006, Plaintiff saw Dr. Janda for follow-up treatment after his emergency room visit. (AR 234.) Dr. Janda assessed Plaintiff with hypertension and noted that his labyrinthitis*fn3 was improved. (Id.)

On March 25, 2007, a state psychiatrist, Dr. Ekram Michiel, examined Plaintiff who reported that he started to feel depressed when he lost his job in September 2006. (AR 239.) Following an examination, Dr. Michiel diagnosed Plaintiff with depressive disorder, NOS but opined that Plaintiff is able to maintain attention and concentration and can carry out simple job instructions: "The claimant is able to relate and interact with co-workers, supervisors[,] and the general public. The claimant is unable to carry out an extensive variety of technical and/or complex instructions." (AR 241.)

Also in March 2007, state agency consultant, R. J. Feder, reviewed Plaintiff's medical records and opined that he was able to do simple repetitive tasks, given his physical and mental limitations. (AR 238.)

On April 11, 2007, a state agency psychiatrist, Dr. G. F. Johnson, completed a Psychiatric Review Technique form and a Mental Residual Functional Capacity Assessment. (AR 242-55.) Dr. Johnson indicated that Plaintiff experienced mild limitations in restrictions of his activities of daily life and in maintaining social functioning. (AR 250.) Dr. Johnson also indicated that Plaintiff had moderate difficulties in maintaining concentration, persistence, or pace. (Id.) Further, Plaintiff was found to be moderately limited in his ability to (1) understand, remember, and carry out detailed instruction, (2) maintain attention and concentration for extended periods, (3) perform activities within a schedule, maintain regular attendance, and be punctual with customary tolerances, (4) complete a normal word day and work week without interruptions from psychologically based symptoms and to perform at a consistent pace, (5) accept instructions and respond appropriately to criticism from supervisors, and (6) respond appropriately to changes in the work settings. (AR 253-54.)

On April 25, 2007, the Commissioner denied Plaintiff's application for disability. (AR 96-100.) On June 20, 2007, Plaintiff requested reconsideration (AR 103), but this request was denied (AR 104).

In August and September 2007, state agency consultants, Drs. A. Garcia and Charles Francchia, opined that Plaintiff had no severe physical impairments, but his mental functioning was limited to simple repetitive tasks. (AR 310-11.)

On October 24, 2007, Plaintiff requested a hearing with an Administrative Law Judge ("ALJ"). (AR 110). Prior to the hearing before the ALJ, additional medical records from the Department of Veterans Affairs ("VA") were added to the record. The VA records span the period between February 5, 2007, and October 10, 2008. (AR 256-309, 312-87.) The records indicate that Dr. Gurcharan P. Gill has treated, and continues to treat, Plaintiff for various medical conditions. Dr. Gill has diagnosed Plaintiff as having a mood disorder, hypertension, hyperlipidemia, hypogonadism, allergic rhinitis, and chronic fatigue syndrome ("CFS"). (AR 270, 338, 345, 351, 376, 394, 473.) On April 6, 2007, as part of Plaintiff's treatment, he was placed on a low dose of Prozac for his mood disorder and was administered a testosterone replacement. (AR 273.) On April 27, 2007, Plaintiff reported to Dr. Gill that he was suffering from fatigue, but no diagnosis of CFS was noted. (AR 270.) On January 18, 2008, Dr. Gill diagnosed Plaintiff with CFS. Dr. Gill proceeded to diagnose Plaintiff with CFS on subsequent occasions in July (AR 351), August (AR 345), and October 2008 (AR 338).

On January 22, 2009, a hearing was held before ALJ Bert C. Hoffman, Jr. (AR 27-63.) Plaintiff testified that he was currently working as an in-home care provider through In Home Supportive Services, and he lives with his client and her son. (AR 20, 32, 160.) As an in-home provider, Plaintiff works about two hours per day, assisting his client with her grocery shopping, medications, driving her to doctors' appointments, cooking one to two meals per day, and occasionally administering a shot for her asthma. (AR 36, 38-40.) He does not feel that he could work at any job for eight hours per day, five days per week. (AR 43 ("I don't like work. I just don't like being around people anymore. I'd rather be by myself.").) He has dizzy spells lasting one to two hours which affects his ability to walk and stand. (AR 47.) He has three to four dizzy spells per day, and each requires him to lie down. (AR 47.) The dizziness began when he started taking medication for his hypertension. (AR 48.) He has tried additional medication to control the dizziness, but it makes him sleepy. (AR 49.) With regard to his CFS, he feels tired "pretty much every day." (AR 49.) When he experiences this tiredness, he must lie down or "sit and recline back." (AR 50.) He has dealt with CFS for approximately two years, but he also has a "hormone deficiency that causes fatigue." (Id.) When Plaintiff does rest or sleep, it is not always restful. Sometimes, despite being fatigued, he cannot sleep at all and experiences insomnia. (Id.) He can concentrate on a task for only five to ten minutes after which he needs to take a break for approximately an hour. (AR 61.)

On March 26, 2009, the ALJ issued a decision, finding Plaintiff not disabled since the alleged date of onset of his disability on September 1, 2006. (AR 12-26.) Specifically, the ALJ found that Plaintiff (1) has not engaged in substantial gainful activity since he applied for DIB; (2) has an impairment or a combination of impairments that is considered "severe" based on the requirements in the Code of Federal Regulations; (3) does not have an impairment or combination of impairments that meets or equals one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1;

(4) could not perform his past relevant work; but (5) has the residual functional capacity ("RFC") *fn4 to perform a full range of work at all exertional levels, limited to simple repetitive tasks; and (6) can perform jobs that exist in significant numbers in the national economy. (AR 7-15.)

Plaintiff sought review of this decision before the Appeals Council. In support of his request for review, Plaintiff submitted a letter from Dr. Gill dated May 14, 2009, that stated the following:

The above patient has been under my care for several years. He has Chronic Fatigue Syndrome which has been recalcitrant to all medical management and evaluation. He[,] in addition[,] has [m]ood disorder and [Post Traumatic Stress Disorder] which compromises his functional status. He has not been able to work in any vocational capacity and I have had no reason to believe that he is malingering. (AR 394.)

On September 9, 2009, the Appeals Council reviewed the newly submitted evidence, but denied review stating that, while it had considered the letter from Dr. Gill, it found that "this information does not provide a basis for changing the Administrative Law Judge's Decision." (AR

2.) Therefore, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.981.

On October 13, 2009, Plaintiff filed a complaint before this Court seeking review of the ALJ's decision. Plaintiff argues that the ALJ erred by ...

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