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Mark Hagans v. Michael J. Astrue

April 8, 2011

MARK HAGANS,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



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

NOT FOR PUBLICATION CLOSED

OPINION & ORDER

This matter comes before the Court upon Plaintiff Mark W. Hagans's ("Plaintiff") motion to review the final determination of the Commissioner of the Social Security Administration ("Commissioner") pursuant to the Social Security Act, as amended. 42 U.S.C. § 405(g). The motion has been decided upon the written submissions of the parties pursuant to Fed. R. Civ. P. 78. For the reasons set forth below, the Court affirms the ALJ's decision. Also before the Court, Plaintiff's motion to restrain the collection enforcement action by the Social Security Administration ("SSA") during the pendency of this action.*fn1

I. BACKGROUND

A. Plaintiff's Medical And Vocational History And Procedural History

Plaintiff is a 52-year-old man with two years of college education who resides in Newark, New Jersey. (Tr. 26, 125.) His past work experience includes employment as a corrections officer, an inspector for a security investigation firm, a machine operator, and a security guard. (Tr. 25, 181.) Medical records state that Plaintiff has a history of hypertension, and he has complained of headaches, dizziness, chest pain, shortness of breath and lightheadness. (Tr. 23.)

On January 26, 2003, Plaintiff suffered from chest pain and was admitted to St. Michael's Medical Center. (Tr. 378.) Tests revealed a very large flap in the ascending aorta, consistent with acute type 1 aortic dissection with severe aortic insufficiency. (Tr. 378-81.) On January 27, 2003, Plaintiff underwent emergency surgery to repair the aortic dissection. (Id.) The operation discovered and removed a very large type I aortic dissection aneurysm. (Tr. 378-79.) Plaintiff tolerated the procedure relatively well and was transferred to the ICU in stable condition. (Tr. 381.)

On February 19, 2003, Plaintiff was discharged from St. Michael's to Rahway Hospital Kindred Unit for rehabilitation. (Tr. 386.) Plaintiff's physician at Rahway Hospital, Dr. Matthew Smith diagnosed Plaintiff with an underlying prior cerebrovascular accident, respiratory failure, hypertension, and a dysphagia evaluation. (Tr. 328.) Dr. Smith recommended ongoing therapy for Plaintiff's dysphagia as well as speech therapy and possibly ENT intervention to help regain control of his swallowing mechanism. (Id.) On February 28, 2003, Plaintiff was discharged from Rahway Hospital. (Tr. 325.) Plaintiff testified he was subsequently admitted to Inglemoor Care Center of Livingston for further rehabilitation for approximately 3 months. (Tr. 228.)

On February 26, 2003, Plaintiff filed an application for Disability Insurance Benefits due to an abdominal aortic aneurysm, hypertension, and stiffness in the left hand. (Tr. 63-65, 50.) In connection with evaluating Plaintiff's disability claim, on April 17, 2003, a Physical Residual Functional Capacity Assessment ("RFC") was completed by a Disability Determination Services physician ("DDS"). (Tr. 312.) The DDS physician concluded that Plaintiff could occasionally lift or carry a maximum of 10 pounds, could frequently lift or carry less than 10 pounds, could stand or walk less than 2 hours in an 8-hour workday, could sit less than 6 hours in an 8-hour workday, and pushing or pulling was limited in the upper and lower extremities. (Tr. 313.) Plaintiff showed signs of occasional postural limitations with climbing, balancing, stooping, kneeling, crouching, and crawling. (Tr. 314.) The DDS physician noted that due to shortness of breath and difficulty walking, ladders, ropes and scaffold-climbing should never be performed. (Id.) Plaintiff's communication skills were limited due to problems with stuttering and word-finding. (Tr. 315.) There were no other manipulative or visual limitations noted. (Tr. 314.)

On April 26, 2003, Dr. Andrew C. Przybyla's case analysis of the RFC report dated April 17, 2003 conditionally affirmed the assessment. (Tr. 311.) Dr. Przybyla indicated that Plaintiff had not been examined a full 3 months since the operation which, was against protocol. However, upon a waiver of the 3 month post-operative exam requirement, the RFC assessment would be affirmed. (Id.)

On April 30, 2003, after review of the Plaintiff's medical records, Dr. G. Spitz, a physician for the Office of Disability concluded that further inquiry into Plaintiff's medical records was necessary due to conflicting medical evidence between the exam performed on February 20, 2003 and the DDS's RFC report performed on April 17, 2003. (Tr. 310.) The February 20th exam noted that Plaintiff was able to carry on a conversation, in contrast to the RFC report, which noted that Plaintiff stuttered and had word-finding issues. (Id.)

On March 12, 2004, Dr. Dinesh Patel, Plaintiff's treating physician, examined Plaintiff. (Tr. 304-08.) Medical charts from this examination were limited, but it was noted that Plaintiff complained of chest pain. (Id.) On April 16, 2004, a report of contact was completed by Dr. Burton Gillette. (Tr. 301.)

Plaintiff began visiting Dr. Stephen J. Levine, a chiropractor, on April 29, 2004 for an injury unrelated to his aortic aneurysm surgery. Plaintiff alleged that on April 26, 2004, a pile of wood fell on his chest and he was knocked to the ground. (Tr. 295.) Dr. Levine concluded that Plaintiff had no limitations as to lifting, carrying, sitting, pushing or pulling or any other limitations, and was able to do work-related activities. (Tr. 296.)

On May 16, 2004, Dr. George Bousvaros with the Office of Disability concluded that the Plaintiff's medical reports were wholly inadequate to assess Plaintiff's current condition except for the scanty treating physician's report. (Tr. 292.) Dr. Bousvaros noted that at a minimum, neurological findings, an EKG, and a chest x-ray were needed for his evaluation. (Id.) On May 17, 2004 the Disability Quality Branch requested corrective action. (Tr. 287-88.)

Dr. R.C. Patel completed a report evaluating the Plaintiff's physical condition on August 31, 2004, which indicated medical improvement. (Tr. 279-82.) The EKG showed normal sinus rhythm without murmur or gallop. (Tr. 280.) The chest x-ray showed that Plaintiff's lungs were clear, and there were no indications of heart failure. (Tr. 281.) Dr. Patel noted that Plaintiff did complain of chest pain, but it was usually relieved by Tylenol. (Tr. 279.) Examination of the lumbosacral spine showed no noticed deformities, but Dr. Patel noted a possibility of arthritis of the neck and lumbosacral spine. (Tr. 281.) Plaintiff could perform fine and gross movements in both hands, and there were no gross neurological deficits. (Id.)

Reviewing Plaintiff's supplemented medical records, Dr. Gillette prepared a physical RFC assessment on September 15, 2004. (Tr. 271-78.) The RFC assessment showed that the Plaintiff had exhibited medical improvement since the last RFC assessment on April 17, 2003. Dr. Gillette found that Plaintiff could now occasionally lift 20 pounds, and frequently lift 10 pounds. (Tr. 272.) Further indicating medical improvement was Plaintiff's ability to stand or walk for at least 4 hours in an 8-hour workday, and sit at least 6 hours in an 8-hour workday. (Tr. 272.) Dr. Gillette also noted that Plaintiff exhibited no limitations in the upper or lower extremities (Tr. 272.), an improvement from the April 17th RFC assessment. (Tr. 313.) On the same day, a development summary worksheet was submitted by Mr. Ernest Uzondu, a DDS adjudicator assigned to the case. (Tr. 284.) The summary concluded that Plaintiff could not perform his previous employment as an armed guard, but there were alternative jobs that Plaintiff could perform. (Id.) Therefore, Plaintiff was found not disabled by Rule 201.21, and his disability benefit ceased. (Id.)

On September 21, 2004, the Social Security Administration determined that Plaintiff's disability had improved and, accordingly, he was no longer eligible for disability insurance benefits. (Tr. 50-52.) Plaintiff requested reconsideration of this determination on December 3, 2004. (Tr. 48-49.)

While Plaintiff's administrative appeal was pending, Plaintiff continued to see his physicians. (Tr. 196-213.) Plaintiff was evaluated on August 30, 2005 by Dr. Stuart Belenker, a psychiatrist with the University of Medicine and Dentistry of New Jersey. (Tr. 196.) Plaintiff was diagnosed with moderate recurrent major depressive disorder marked with complaints of poor memory. (Tr. 203.) The Plaintiff's outpatient treatment was terminated on January 17, 2007. (Tr. 196.)

Dr. David Tiersten evaluated the Plaintiff on March 16, 2006. Dr. Tiersten noted that Plaintiff complained of chest pains and acknowledged his prior heart surgery. (Tr. 254.) Plaintiff also complained of low back pain on the left side and pain from his knees to his feet. (Id.) Despite Plaintiff's complaints, Dr. Tiersten concluded that Plaintiff had no specific limitations derived from the evaluation, and suggested the musculoskeletal limitations, if any, be derived from data such as imaging studies or electromyelography. (Tr. 257.) The chest x-ray indicated that the aorta was markedly unfolded, and no active lung disease was found. (Tr. 261.) The lumbar sacral spine x-ray noted disc space narrowing, and straightening of lordotic curve. (Id.)

On July 14, 2006 a physical RFC assessment was performed on the Plaintiff. (Tr. 246.) The primary diagnosis was post-operative open heart surgery, and a secondary diagnosis of lumbar spine degenerative disc disease. (Id.) The exertional limitations concluded that Plaintiff could occasionally lift 20 pounds, frequently lift 10 pounds, stand for at least 4 hours in an 8-hour day, and sit for at least 6 hours in an 8-hour day. (Tr. 247.) Plaintiff's exertional limitations were the same as those indicated on the September 15, 2004 RFC assessment.

Dr. Ramesh Patel examined the Plaintiff on August 7, 2006, and concluded that Plaintiff was disabled. (Tr. 25, 230.) However, the report lacked any objective medical evidence such as clinical signs, laboratory findings, the results on any testing, medical assessment, treatment, response to treatment and prognosis for recovery. (Tr. 230.)

After Plaintiff's request for reconsideration of disability benefits, a hearing was scheduled for May 17, 2007. (Tr. 45-47.) On May 31, 2007, the determination that Plaintiff was no longer eligible for disability benefits as of September 1, 2004 was upheld after the hearing by a State agency Disability Hearing Officer. (Tr. 43-44.) Subsequently, Plaintiff filed a timely written request for a hearing before an Administrative Law Judge ("ALJ"). (Tr. 33.) The request was granted and Plaintiff was informed of his right to counsel. (Tr. 41.) On May 14, 2008, Plaintiff appeared unrepresented by counsel before ALJ Donna Krappa. (Tr. 611.) The hearing was adjourned so the Plaintiff could obtain counsel. (Id.) On September 22, 2008, Plaintiff appeared before ALJ Krappa, again without counsel. (Id.) Plaintiff was informed of the right to representation, but chose to testify without the assistance of an attorney or other representative. (Id.) Pat Green, a vocational expert, testified by telephone at the hearing. (Tr. 646-53.)

On February 26, 2009, ALJ Krappa found that Plaintiff's disability ended as of September 1, 2004. (Tr. 27, 15-17.) Plaintiff requested that the Social Security Appeals Council review the ALJ's decision on March 18, 2009. (Tr. 14.) On May 21, 2009, the Appeals Council denied Plaintiff's request for review, rendering the ALJ Krappa's decision the final decision of the Commissioner. (Tr. 9-12.) Plaintiff brought this action on April 16, 2010 after having exhausted all other remedies. (Comp. 1.)

B. The Statutory Standard For Continuing Disability

Once a determination of eligibility for disability benefits has been made, continued entitlement to such benefits must be reviewed periodically. 20 C.F.R. § 404.1594(a). A benefit recipient, like Plaintiff, may subsequently be deemed ineligible for benefits if it is determined that his disability has ceased, when that determination is supported by substantial evidence of medical improvement, and the claimant is able to engage in substantial gainful activity. 42 U.S.C. § 423(f)(1). To determine whether a disability has ceased, the Commissioner applies the following sequential analysis prescribed by Social Security regulations:*fn2

Step One: Substantial Gainful Activity. The Commissioner must first determine whether the claimant is engaging in substantial gainful activity.*fn3 If the claimant is performing substantial gainful activity and any applicable trial work period has been completed, ...


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