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David Dunn v. Commissioner of Social Security

March 14, 2011


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Docs. 15 & 16) and defendant's cross-motion for summary judgment (Doc. 17).


Plaintiff applied for social security benefits on December 8, 2006. In the application, plaintiff claims that disability began on March 12, 2002.*fn1 Plaintiff claims that disability is caused by dysthymic disorder causing difficulty getting along with others, stress, and poor concentration. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on December 4, 2008, before Administrative Law Judge ("ALJ") Thomas P. Tielens. In a February 4, 2009, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant had the following severe impairments through the date last insured: a history of rotator cuff injury and a dysthymic disorder;

2. Claimant's impairments did not meet or medically equal an impairment listed in the regulations;

3. Through the date last insured (June 30, 2004), the claimant had the residual functional capacity to perform light work except for the work that does not require frequent use of the right upper extremity for pushing/pulling or overhead work, or any public interaction, and requires only limited interaction with co-workers, and is slow paced or allows the claimant to control his pace; and

4. Based on claimant's age, education, work experience, residual functional capacity, and testimony from a vocational expert, there were jobs that existed in significant numbers in the national economy the claimant could have performed.

After the Appeals Council declined review, this appeal followed.


The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:

February 9, 2000 -- The Department of Veterans Affairs ("VA") issued a disability rating decision. The decision was based on a VA examination conducted in October 1999, treatment reports for the period June 1998 through October 1999, and reports from previous employers. Plaintiff's dysthymic order was rated as 70% disabling. The rating decision specifically states: "A higher evaluation of 100 percent is not warranted unless there is total occupational and social impairment. . . ."*fn2 Plaintiff was rated 10% disabled each for hypertension and vascular/tension headaches.*fn3

January 16, 2002 -- VA Clinic progress notes indicate that plaintiff complained of difficulties with finances, sleeplessness, poor mood, and nightmares. Objectively, the doctor noted some psychomotor retardation. The doctor also noted that plaintiff's answers were spontaneous, logical, and goal-directed. Insight was fair and judgment was intact. The doctor assigned a GAF score of 45.

February 20, 2002 -- Plaintiff reported to the VA Clinic that he had hopes his financial situation was about to improve and that this had improved his mood.

March 12, 2002 -- Prior application for social security benefits denied without appeal, giving rise to presumption of continuing non-disability.

April 16, 2002 -- VA Clinic notes reflect that plaintiff reported a gloomy mood due to recent denial of his social security claim. At this time, plaintiff was assigned a GAF score of 55.

April 25, 2002 -- Plaintiff reported to the VA Clinic an overall improvement in mood.

May 29, 2002 -- Progress notes from the VA Clinic reflect that plaintiff was complaining of side effects of new medication, specifically headaches.

May 30, 2002 -- Progress notes from the VA Clinic indicate that plaintiff reported being more active. He also stated he was getting along better with his wife. Objectively, plaintiff's speech was normal, there was no evidence of psychotic symptoms, and memory and cognition were intact. The note concluded by noting that plaintiff's mood was improving, "especially since medication change."

June 13, 2002 -- VA Clinic progress notes indicate that plaintiff was functioning better than before and that he was considering finding a job. Plaintiff reported increased activity.

June 26, 2002 -- VA Clinic progress notes indicate that plaintiff reported increased irritability and edginess. He noticed the increase since discontinuing the medication that had been causing headaches as a side effect. The doctor started plaintiff on a different medication.

July 30, 2002 -- VA Clinic progress notes show that plaintiff was working with his vocational counselor on finding a job, but that plaintiff was concerned that he was "not ready" and feared being fired. Plaintiff reported that sleep was not refreshing. Medication was changed to address complaints of insomnia.

October 2, 2002 -- Plaintiff reported to the VA Clinic that his headaches had resolved and that nightmares had decreased. A progress note shows that plaintiff was compliant with medication regimen, which had been undergoing change to address side effects such as insomnia and headaches. Plaintiff also reported increased anger control.

November 12, 2002 -- VA Clinic progress notes indicate that plaintiff reported with complaints related to his right shoulder. Plaintiff attributed the pain to repetitive motion and denied any recent trauma or injury. On objective evaluation, the doctor noted psychomotor retardation and that plaintiff required prompting to answer questions. Medication was continued.

December 17, 2002 -- Plaintiff reported to the VA Clinic to follow up on his treatment. He reported a "major improvement" in his sleep, which plaintiff now reported to be refreshing. While plaintiff reported some problems with concentration, he stated that he was planning to attend college in the spring.

February 3, 2003 -- Plaintiff reported to the VA Clinic with his wife in apparent mental health crisis. He reported: "I feel overwhelmed and don't know why I'm crying all the time and feel depressed." Objectively, plaintiff presented as tremulous and somewhat hysterical. The doctor noted that as soon as plaintiff's wife left the room, plaintiff became clear and articulate and tremors subsided. The doctor opined that plaintiff's wife was the focal point of his distress.

February 18, 2003 -- VA Clinic progress notes reflect the following subjective complaints:

David went through a rough time recently when he was hit with several negative events. First, his wife required shoulder surgery and this meant that David had to take over where she left off and he was caring for their special needs child. Additionally, his mother was severely ill back East and he was unable to visit her. All along, David was enrolled in classes at a nearby college and was finding the course work overwhelming so he dropped out. Then there is the usual marital distress added in. . . .

The doctor noted suicidal ideation. The doctor also noted that, according to plaintiff, the situation gradually improved and so did his mood. Plaintiff was prescribed Klonopin for breakthrough anxiety.

April 23, 2003 -- Progress notes from the VA Clinic indicate that plaintiff was seen for medication management. Subjectively, plaintiff reported continuing difficulty dealing with his wife, and that he also dropped out of college due to difficulties with memory and concentration. Objectively, plaintiff's mood was dysphoric and bland. The doctor decided to taper plaintiff's dosage of Trazodone, continue Depakote and Paxil at the same dosages, and continue Clonidine at night. Plaintiff was assigned a GAF score of 55. May 9, 2003 -- VA Clinic records indicate that plaintiff moved to Kentucky and answered a number of mental health questions upon transferring his care there. Specifically, he stated that he had not been bothered by "feeling down or depressed" during the past month. He also stated that, during the past month, he had not been bothered by lack of interest in activities.

June 24, 2003 -- VA Clinic records indicate that plaintiff reported to the triage area for refill of medications. As part of this process, he answered some questions concerning his mental health. His answers were the same as those given on May 9, 2003.

November 3, 2003 -- VA Clinic records indicate that plaintiff underwent a psychiatric examination. Plaintiff reported depression, poor sleep, and poor appetite. Plaintiff also told the doctor that he had been hospitalized several times in the past for depression and suicide attempts. Plaintiff also reported periods of mania. Objectively, the doctor noted fair eye contact, a dysphoric mood, and constricted affect. Cognitive functions were intact and there was no overt psychosis. The doctor diagnosed bipolar disorder and assigned a GAF score of 55.

January 20, 2004 -- VA Clinic records reveal that plaintiff answered psychological screening questions. He reported no depression or lack of interest in the past month.

January 30, 2004 -- VA Clinic records include a detailed clinical assessment by plaintiff's therapist. The therapist offered the following observations:

Mr. Dunn was neatly and casually dressed and appeared his stated age of 39 years. He was alert and oriented. Some anxiety was observed in that his hands were shaking (the patient indicated that this was due to nervousness in general and because of the interview). The patient's psychomotor activity appeared mildly slowed and his voice was soft-spoken. Mr. Dunn's reported mood was "better today," and he reported that his mood is usually "down" and "blue." His affect was constricted and consistent with the content of the session, and his eye contact was appropriate. His thought process was fairly logical and goal-directed, but appeared mildly slowed, perhaps because of ...

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