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Carmine Potesta v. Michael Astrue

December 22, 2011


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


Before the court is Plaintiff Carmine Potesta‟s ("Plaintiff" or "Potesta") appeal of the final administrative decision of the Commissioner of Social Security ("Commissioner"), with respect to Administrative Law Judge Brian H. Ferrie‟s ("ALJ") denial of Potesta‟s claim for Social Security Disability Insurance benefits ("SSDI") under 42 U.S.C. § 405(g).

This appeal is decided without oral argument pursuant to Federal Rule of Civil Procedure 78. This court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(g). Venue is proper under 28 U.S.C. § 1391(b). For the reasons stated herein, this Court AFFIRMS the Commissioner‟s decision.


Plaintiff was previously receiving Supplement Security Income benefits ("SSI") as a result of being diagnosed with post traumatic stress disorder ("PTSD"). (Pl.‟s Br. 3.) In 2003, Plaintiff‟s SSI ceased as a result of Plaintiff being incarcerated. (Id.) On November 20, 2006, Plaintiff reapplied for SSI. (Id.) The Commissioner denied the application initially and upon reconsideration. (Pl.‟s Br. 2-3.) Subsequently, Plaintiff requested a hearing before an ALJ, who on February 19, 2010, held that Plaintiff had neither a severe impairment nor a severe combination of impairments, and consequently, was not disabled. (Id. at 2.) Thereafter, Plaintiff appealed the ALJ‟s decision, and in September 2010 the Social Security Appeals Council denied Plaintiff‟s request for review, thus the ALJ‟s decision became final. (Def.‟s Br. 2.) On September 14, 2011, Plaintiff filed an appeal with this Court. (Pl.‟s Br. 1.)

Plaintiff, pursuant to 42 U.S.C. § 405B, seeks judicial review from the final administrative decision of the Commissioner denying his claim for Social Security Disability Insurance ("SSDI") benefits. (Pl.‟s Br. 1) The Commissioner, pursuant to Federal Rule of Civil Procedure 12(c), seeks a judgment affirming his final decision that Plaintiff was not disabled, and thus, not eligible for SSI under Title XCI of the Social Security Act (the "Act"). (Def.‟s Br. 1)


A.Employment History

Plaintiff was born on September 15, 1963. (Pl.‟s Br. 3.) From 1980 to 2001 Plaintiff was employed as a waiter. (R. at 98.) As a waiter, Plaintiff took food orders, carried orders from the kitchen to tables and vice versa, and generally walked and stood for seven hours. (R. at 99.) Plaintiff also frequently lifted eighty pounds during the workday. (Id.)

B.Medical History

In September 2001 an ALJ found Plaintiff to be disabled beginning on August 21, 2001, thereby making Plaintiff eligible for SSI. (R. at 26-27.) In June 2003, Plaintiff was imprisoned for forty-one months, during which his SSI was suspended. (R. at 27.) Despite having been previously diagnosed with PTSD, Plaintiff did not see a psychiatrist while he was imprisoned. (R. at 33.) Plaintiff alleged that he did not seek mental help while in prison because he was in solitary confinement. (R. at 34.) Plaintiff did, however, seek treatment while in prison for stomach problems, diarrhea, and headaches. (R. at 149.)

In November 2006, upon release from prison, Plaintiff began seeing Rachel Markowitz ("Markowitz") from Meridian Behavioral Health as a preventive measure because he felt he was unstable and believed his health had deteriorated in prison. (R. at 31.) Markowitz started Plaintiff on 300 milligrams of Seroquel, and Xanax three times a day. (Id.)

At his hearing, Plaintiff alleged that due to the severity of his condition his medication was going to be changed because, "[he] need[ed] more stuff." (R. at 31.) Plaintiff stated that due to being shot in the stomach four times, his organs can only tolerate the medications prescribed for a certain time before they start affecting his liver. (R. at 32.) At the time of the hearing before the ALJ, Plaintiff was being tested to determine what medications would be suitable. (Id.)

C.Daily Activities and Residual Functional Capacity

Plaintiff begins his day by eating breakfast, and then attending doctor appointments. (R. at 106.) Afterwards, he returns home, goes for a walk, eats dinner, takes a shower, and goes to sleep. (Id.) Plaintiff also spends about two hours a day doing basic cleaning and laundry. (R. at 107.) Plaintiff prepares his meals daily. (R. at 108.) Plaintiff goes outside daily. (Id.) He goes shopping for food, clothes, and basic necessities. (R. at 109.) Plaintiff does not drive because it frustrates him. (Id.) Plaintiff spends time daily watching television, reading, and relaxing. (Id.) Plaintiff also goes to the movies and church weekly. (Id.) However, Plaintiff alleges that he limits the time he spends with people because he cannot tolerate the stress. (R. at 110.)

D.Medical Evidence

On December 27, 2006, Dr. Christopher Williamson ("Williamson"), a consultative psychologist, evaluated Plaintiff at the request of the Social Security Administration ("SSA"). (Def.‟s Br. 3.) Williamson observed that Plaintiff‟s speech was clear, coherent, and goal directed. (Id.) His mood was sullen, depressed, anxious, and somewhat irritable. (Def.‟s Br. 3.) Williamson also diagnosed Plaintiff with PTSD. (Id.)

On March 2, 2007, Dr. Michael D‟Adamo ("D‟Adamo"), a psychological consultant, reviewed Plaintiff‟s medical record and assessed that Plaintiff‟s depressive disorder and anxiety-related disorder did not meet any of the listed impairments*fn1 . (Def.‟s Br. 3.) D‟Adamo assessed that Plaintiff had mild restrictions in performing daily activities of living, maintaining social functioning, and in maintaining concentration, persistence, or pace. (Id.) D‟Adamo opined that "[P]laintiff could handle three-step directions, focus adequately upon routine job tasks, adapt socially in a job where the interpersonal demands were modest, and be productive in slower paced jobs where there was minimal coordination with others." (Id.)

On June 11, 2007, Plaintiff was evaluated at Riverview Medical Center. (Pl.‟s Br. 5.) Plaintiff reported that he had significant anxiety and flashbacks to the time when he was shot, and that he was ...

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