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Robert Prochaska v. Opinion

March 21, 2011

ROBERT PROCHASKA, PLAINTIFF,
v.
OPINION COMMISSIONER OF SOCIAL SECURITY, DEFENDANT,



The opinion of the court was delivered by: Pisano, District Judge.

NOTFORPUBLICATION

Before the Court is an appeal by Robert Prochaska ("Plaintiff") from the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his request for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits. The Court has jurisdiction to review this matter under 42 U.S.C. § § 405(g) and 1383(c)(3) and decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78. The record provides substantial evidence supporting the Commissioner's decision that Plaintiff was not disabled. Accordingly, the Court affirms.

I. BACKGROUND

Plaintiff was born on September 5, 1953. He worked as a computer programmer analyst until 1999. Plaintiff asserts that he has been disabled since August 1, 1999.

A. Procedural History

Plaintiff filed an application for DIB on August 19, 2003, and a claim for SSI on May 7, 2004, alleging an inability to work effective August 1, 1999 due to mental impairments, a nervous system disorder, a digestive disorder and chronic fatigue. The Social Security Administration (the "SSA") denied Plaintiff's claim for DIB initially and upon reconsideration. Plaintiff filed a timely request for hearing, which was held on July 5, 2005 in Newark, New Jersey. Following that hearing, Administrative Law Judge Ralph Muehlig ("ALJ Muehlig") denied Plaintiff's claim. Plaintiff then filed a request for review of ALJ Muehlig's decision. On January 6, 2006, the SSA's Appeals Council granted Plaintiff's request for review, vacated ALJ Muehlig's decision and remanded the case for further proceedings. A second hearing was held before ALJ Muehlig on April 25, 2006. Following that hearing, ALJ Muehlig denied Plaintiff's claims. Plaintiff subsequently filed a request for review of ALJ Muehlig's decision with the SSA. On February 25, 2008, the SSA's Appeals Council granted Plaintiff's request for review, vacated ALJ Muehlig's decision and remanded the case for further proceedings.

A third hearing was held on June 2, 2008, this time before Administrative Law Judge Gerald Ryan ("ALJ Ryan"). ALJ Ryan issued a decision on July 23, 2008, denying Plaintiff's claims. Plaintiff then filed a third request for review on September 21, 2008. The SSA denied Plaintiff's third request for review on March 31, 2009. Upon that denial, ALJ Ryan's ruling became the Commissioner's final decision. Plaintiff filed this action challenging the final decision on May 27, 2009.

B. Factual History

1. Plaintiff's Employment Prior to August 1999

Plaintiff testified that he worked as a computer programmer analyst at AT&T and Computer Sciences Corporation until August 1999.

2. Plaintiff's Medical History

The record indicates that Plaintiff has a history of treatment prior to his alleged disability onset date of August 1, 1999. Dr. Serge Kaftal, M.D., treated Plaintiff between August 22, 1995, and July 31, 1997. (Administrative Record ("R.") at 132 - 134). Dr. Kaftal's records show that Plaintiff's medical history includes hypertension, cigarette smoking, a few episodes of upper and lower respiratory infection, fatigue and memory problems. Dr. Kaftal stated that he was unable to provide a medical opinion regarding Plaintiff's ability to do work related activities.

Dr. Richard Rosenberg, M.D., a neurologist, examined Plaintiff on August 18, 1997. (R. at 137 - 139). Plaintiff's complaints included, among other things, that he felt as though he was "missing a piece" of his brain, felt uncomfortable driving a car, was chronically dizzy and sometimes felt as though he might black out. Plaintiff told Dr. Rosenberg that he had so much difficulty concentrating that he was unable to do his job. Upon physical examination, Dr. Rosenberg found that Plaintiff's cranial nerves, motor, sensation, reflexes, coordination and gait were all normal. Upon mental status examination, Plaintiff was alert and oriented to place and date and had an average ability to calculate, no difficulty speaking and no problems spelling or drawing. Dr. Rosenberg's impression was that Plaintiff had subjective symptoms of poor concentration and feeling fuzzy headed but had no neurological abnormalities.

Dr. Stuart Eisenberg, a psychologist, treated Plaintiff beginning in October of 1997 through December of 1998. (R. at 152 - 153). Dr. Eisenberg's medical report, prepared on September 9, 2003, states that Plaintiff complained of an inability to concentrate, anxiety and panic attacks. Plaintiff told Dr. Eisenberg that he had, at various times, been prescribed to Paxil, Prozac, Zoloft and Wellbutrin. Dr. Eisenberg noted that Plaintiff's intelligence was average and Plaintiff denied any suicide attempts. Plaintiff's mental status "showed a man who seemed tense, weak." Although Dr. Eisenberg stated that he had not had contact with Plaintiff in almost five years, his opinion was that Plaintiff "definitely had a major depressive episode which was relatively severe."

Plaintiff was treated by Dr. Jay Roth, a psychologist, beginning in September of 1997 through June of 1998, approximately 4 times a month. (R. at 158 - 164). The medical records indicate that Plaintiff's mental status during his first visit with Dr. Roth was flat and uncertain. Dr. Roth noted that Plaintiff had some drinking issues in the past. The medical records also state that Plaintiff was experiencing panic attacks 3 to 4 times per week that caused him to be unable to work or leave his home and that these episodes would only end when Plaintiff fell asleep. On Plaintiff's last visit with Dr. Roth, he was alert, oriented and his appearance, behavior, speech and intellect were good. Plaintiff's concentration had improved. Dr. Roth noted that Plaintiff did not suffer from any psychosis, hallucination or delusions and marked that his judgment was "?". According to the medical report provided by Dr. Roth, Plaintiff's understanding, memory, sustained concentration and persistence, social interaction and adaptation were limited. Dr. Roth stated that he could not provide a medical opinion regarding Plaintiff's ability to do work related activities because he had not treated Plaintiff for several years.

At the request of the Division of Disability Services, Dr. Jack Baharlias, a psychologist, examined Plaintiff on November 4, 2003. (R. at 154 - 157). The medical records indicate that Plaintiff complained about having difficulty sleeping and acknowledged that he has a history of emotional and psychiatric symptoms in the general category of anxiety. Plaintiff also complained that he was experiencing gastroenterology problems for which he was treated by Dr. Valeri. Dr. Baharlias noted that, based upon a brief cognitive screening, Plaintiff "has no real significant cognitive problems," and that "any cognitive difficulties he has would probably be secondary to anxiety disorders." The medical records indicate that Plaintiff complained that he was "nervous all the time" and sometimes he had racing thoughts. Plaintiff admitted to having some suicidal ideation but had no plans. He denied having paranoid or homicidal thoughts or auditory or visual hallucinations. Dr. Baharlias noted that Plaintiff seemed depressed and obviously anxious, but that his thought processes were logical, he made good eye contact and was well oriented in all three spheres. On the Wechsler Memory Scale subtest, Plaintiff was able to answer all questions correctly. On the Mental Control subtest, he was able to count backwards from twenty. Dr. Baharlias saw no lethargy or agitation and noted that Plaintiff spoke at an adequate volume and rate. Plaintiff also complained about obsessive thoughts that he thought "something is holding me back." Plaintiff acknowledged that he is fearful of being in the company of other people and that he sometimes experiences panic attacks which include the following symptoms: racing heart, shortness of breath and an uncomfortable feeling in his "gut." Plaintiff stated that he had one such panic attack the morning of his appointment with Dr. Baharlias and is usually afraid to have one when the mail comes. Dr. Baharlias noted that he felt that Plaintiff's insight and judgment are below fair but that he would be able to handle his own benefits, from a cognitive point of view, if he is found eligible for funding. Plaintiff told Dr. Baharlias that he smoked two packs of cigarettes daily since the age of fifteen and denies the use of any street drugs. Plaintiff admitted to a DWI conviction in 1990. Plaintiff denies being an alcoholic but did go to AA meetings because it was required as a part of his conviction. Plaintiff stated that he drinks "a couple of beers a day" and, on some days, could have as much as four beers a day. Dr. Baharlias ultimately diagnosed Plaintiff with alcohol abuse, somatization disorder, generalized anxiety disorder, panic attacks with agoraphobia and social phobia. Dr. Baharlias also noted that Plaintiff suffered from gastroenterology illnesses.

Stage Agency physicians J.F. Joynson, Ph.D. and Dr. M. Apaible (the "State Agency Physicians") reviewed Plaintiff's medical record on December 26, 2003, and April 12, 2004, respectively. (R. at 165 -- 183). The State Agency Physicians found that Plaintiff had the following medically determinable impairments: (1) major depressive episode, (2) generalized anxiety disorder, panic attacks with agoraphobia, social phobia, (3) somatization disorder and (4) alcohol abuse. Plaintiff was also found to have moderate limitations in maintaining social functioning and in maintaining concentration, persistence or pace. The State Agency Physicians further determined that Plaintiff was moderately limited in the following: (1) his ability to understand and remember detailed instructions, (2) his ability to carry out detailed instructions,

(3) his ability to maintain attention and concentration for extended periods, (4) his ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, (5) his ability to work in coordination with or proximity to others without being distracted by them, (6) his ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, (7) his ability to interact appropriate with the general public, (8) his ability to accept instructions and respond appropriately to criticism from supervisors and (9) his ability to travel in unfamiliar places to use public transportation. The State Agency Physicians did not find that Plaintiff was markedly limited in any of the above or other categories. Plaintiff's residual functional capacity, as determined by the State Agency Physicians, was that Plaintiff was able to sustain adequate concentration, persistence and pace, and was capable of performing simple routine work-related activities.

Plaintiff was treated by Dr. John Valeri starting in 1978, with a final appointment in 2003. (R. at 184). Dr. Valeri's medical report, dated January 12, 2004, states "I am not a psychiatrist, so I do not feel confident in diagnosing what he has, but will probably someone in your department see him, or send him to someone, but I really feel that this gentleman really cannot work, and should be on complete disability." Dr. Valeri noted that he treated Plaintiff approximately once a year. Dr. Valeri reported that Plaintiff had trouble keeping his attention at work.

On October 21, 2004, Plaintiff was examined at the Somerset Family Practice. (R. at 317 - 321). Dr. James J. Lohse, M.D., performed a general medical physical exam. Dr. Lohse identified various problems including hypertension, anxiety, depression, hallucination and a family history of Alzheimer's Disease. Dr. Lohse determined that Plaintiff's judgment was intact and he was oriented to time, place and person, but had poor recent memory recall, a moderately depressed mood and a history of suicidal ideation and auditory hallucinations. Plaintiff was referred for psychiatric evaluation and treatment, told to continue using Xanax for acute attacks, advised about switching to a low sodium diet and told to return in one month for a blood pressure check.

At the request of Plaintiff's attorney, Plaintiff was examined by Dr. Gerard A. Figurelli, Ph.D., a licensed psychologist, on April 1, 2005. (R. at 145-151). Plaintiff told Dr. Figurelli that he was experiencing problems with nervousness and stress. In connection with these problems, Plaintiff experiences various symptoms including mood change, racing heart, dizziness, inability to maintain thoughts and physical pain. Plaintiff complained about episodes of panic attacks.

During these panic attacks, Plaintiff experiences the same symptoms as above but they are extreme in their intensity. Plaintiff admitted that these panic attacks do not last a long time. Plaintiff also complained of fatigue, weakness and an inability to sleep. He claims that, occasionally, it is hard for him to make it from the bedroom to the bathroom and that, some days, he will only be up for an hour until he has to lay back down again. Plaintiff told Dr. Figurelli that he has anxiety leaving the house. Plaintiff makes attempts to leave the house but experiences duress when doing so. Plaintiff also complained of disturbance with his perception. Occasionally, Plaintiff's hearing would become acute and, as a result, he could not sleep. At times, Plaintiff's sense of taste was affected. Dr. Figurelli discussed his education and prior work history. Plaintiff denied having any significant problems with co-workers or supervisors while employed, but explained that he would have no idea what was happening while he was at the office and experienced memory problems. Dr. Figurelli noted that, throughout the evaluation, Plaintiff remained alert, compliant, adequately controlled, verbally responsive and maintained adequate eye contact. Plaintiff communicated in full sentences and his speech remained even paced, clear and sufficiently easy to understand. Dr. Figurelli reported that Plaintiff did not experience significant difficulty in his attempts to comprehend or remain focused on verbal interaction or basic verbal instruction. Upon formal mental status exam, Plaintiff showed no significant deficits with immediate recall, concentration on structured tasks or short duration or recall of more remote, personal life history information, but he did show difficulty with delayed recall. Plaintiff was able to provide accurate responses to questions that required him to perform very basic, single digit addition, subtraction, multiplication and division. Dr. Figurelli reported that Plaintiff was fully oriented to person, place and time and manifested no evidence of active psychotic disturbance. Plaintiff expressed himself in a coherent manner and manifested no evidence of a formal thought disorder. Plaintiff showed no significant preoccupation in the content of his thoughts. His mood at the examination appeared anxious, depressed, withdrawn, anhedonic and constricted. Dr. Figurelli noted that Plaintiff appears to be of average range intelligence and that his general information appeared appropriate for his age and range of life experience. Plaintiff displayed understanding of the nature of his emotional difficulties and the significance of his psychologically based symptoms. Finally, Dr. Figurelli noted that Plaintiff's judgment was adequate. Plaintiff reported having thoughts of suicide but has never attempted it. Plaintiff also admitted to having some trouble controlling his anger in the past. Plaintiff told Dr. Figurelli that he was not involved in any psychotherapy or counseling and does not receive treatment. Plaintiff was prescribed to Xanax but was not on any other prescription medication because he experiences adverse side effects to the antidepressant medication that he was treated with in the past. Dr. Figurelli diagnosed Plaintiff with generalized anxiety disorder, panic disorder with agoraphobia, somatization disorder, major depressive disorder (recurrent, chronic type), history of psychotic features, cannabis abuse and personality disorder.

Plaintiff returned to the Somerset Family Practice on December 5, 2005, more than a year after his initial appointment. (R. at 313 - 316). Dr. Lohse noted that Plaintiff suffered from panic disorder with agoraphobia and started Plaintiff on daily dose of Wellbutrin to be used in addition to Xanax for acute attacks. Plaintiff was also started on Toprol to address the hypertension. Plaintiff was advised to return in two weeks for a blood pressure check. Plaintiff returned to the Somerset family Practice on March 15, 2006 for his blood pressure follow-up.

(R. at 329 -- 332). Dr. Lohse noted that Plaintiff suffered from hypertension, panic disorder with agoraphobia, depression and borderline hyperlipidemia. At that time, Plaintiff was oriented to time, place and person and his judgment was intact. The medical records indicate that Plaintiff was advised to discontinue use of the Toprol prescription because of adverse side effects and was given a prescription for Atenolol instead. Dr. ...


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