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James P. Doherty v. Commissioner of Social Security

September 28, 2012


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


Before the Court an appeal by James P. Doherty ("Plaintiff") from the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying Plaintiff's request for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The Court has jurisdiction to review this matter under 42 U.S.C. § 405(g) and 1383(c)(3) and reaches its decision without oral argument. See Fed. R. Civ. P. 78. For the reasons expressed below, the Court affirms the final decision of the Commissioner.


Plaintiff filed an application for DIB and SSI on November 30, 2006, alleging that he was unable to work as of October 15, 2006 due to depression and lumbar disc disease. Administrative Record ("R") 141. The Social Security Administration ("SSA") denied his claims both initially and on reconsideration. Upon Plaintiff's request, a hearing was held on June 5, 2009 before Administrative Law Judge ("ALJ") Daniel N. Shellhamer at which the alleged disability onset date was amended to October 26, 2006. R. 17, 21. The ALJ denied Plaintiff's claim on September 28, 2009. R. 6-16. The Appeals Council subsequently denied Plaintiff's request for review. R.1. On November 1, 2011, Plaintiff filed a Complaint in this Court alleging that the Commissioner's decision was not supported by substantial evidence.


Plaintiff was born on December 12, 1955. R. 141. He has a tenth grade education, and has not attended any special education classes. R. 172. In the years prior to October 2006, Doherty performed several occupations, including ambulance driver, a street sweeper, adult day care maintenance worker, and an overnight stocker. R. 168. He was served time in prison from December 1998 through September 2002 after being convicted for exposing himself to minors.


Plaintiff's relevant medical history*fn2 dates back to April 9, 1998, when he injured his back while lifting a wheelchair into an ambulance. R. 348. He underwent an MRI on April 23, 1998 revealing a disc desiccation and disc space narrowing at L4-5 and L5-S1. R. 348. Dr. William L. Klempner noted that Plaintiff had degenerative marrow changes at both these levels. Dr. Klempner added that his medical history was unremarkable, his parents were alive and Plaintiff was married with two children at the time of the injury. R. 348. Plaintiff was noted as having difficulty sleeping and sitting in one place for any length of time. It was also noted that Plaintiff was able to walk only short distances before experiencing back and leg discomfort. R. 348. Plaintiff was diagnosed as suffering from lateral recess nerve root compression syndrome secondary to the bony changes. R. 348. Plaintiff underwent surgery on July 16, 1998, to correct a right sided foraminal disc herniation at L2-3 and a left sided disc herniation at L4-5. R. 351. One month later on August 17, 1998, Dr. Klempner stated that Plaintiff's "severe pain is gone and [Plaintiff] states that he is '100% better.'" R. 354. Dr. Klempner had another follow up visit with Plaintiff on September 14, 1998, in which he noted Plaintiff complained of twitching, weakness and numbness in his left leg. R. 356.

On September 28, 1998, Plaintiff consulted Dr. Alfred Steinberger. Dr. Steinberger noted that Plaintiff had persistent and recurring pain that radiates throughout his lower back and left leg. R. 358. After a postoperative MRI, an outpatient myelogram-CT-scan and post-myelography CT scan showed a mild bulging disc with no focal herniation, and a large extradural defect compressing the thecal sac bilaterally consistent with recurrent large disc herniation. R. 364. Dr. Steinberger concluded that Plaintiff had a large recurrent disc herniation, L4-L5 bilaterally, more pronounced on the left. R. 364. In a follow up visit on November 30, 1998, Plaintiff was observed as improving with a good range of motion and he has excellent power in both legs. R. 370.

There is a gap in the treatment records from 1998 to 2005, during which time Plaintiff was incarcerated. Plaintiff was seen by Dr. Rajiv Sahay between February 2005 and February 2006 for depression, anxiety, sinusitis, fatigue and hemoptysis. He was prescribed medication for depression and antibiotics for the sinus infection.

Plaintiff was admitted to Kimball Medical Center on October 22, 2006 after an intentional overdose of his girlfriend's narcotic pain medications. Pl. Br. 8. He received treatment from Dr. Tony Juneja and was diagnosed with major depressive disorder. R. 377. His Global Assessment of Functioning ("GAF") score was determined to be 50-59, indicating moderate symptoms or moderate difficulty in social, occupational, or school functioning. Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 2000). He did not have other medical complaints and was not suicidal while hospitalized. R. 377. Dr. Juneja noted that Plaintiff "thought process was logical and coherent. [and] patient's mood and affect were appropriate." R. 378. It was recommended that Plaintiff continue taking Lexapro 10 mg daily. R. 378.

Plaintiff was seen for a mental health assessment at Ocean Mental Health Services on December 1, 2006. At the time, he was taking Lexipro and Trazodone. His diagnosis was depressive disorder and anxiety, as well as chronic pain due to back surgery.

Consultative psychologist Dr. Thomas Plahovinsak examined Plaintiff on January 30, 2007. Dr. Plahovinsak diagnosed moderate recurrent major depressive disorder, and added that the prognosis was favorable with treatment. R. 403. Dr. Plahovinsak further stated that Plaintiff is "capable of performing all [activities of daily living] skills independently, but has periods when he is lax about doing so." R. 402. He went on to add that Plaintiff "does not have any physical limitations that limit his ability to bend, sit, stand, or walk, despite the previously described back spasm condition. R. 402. Regarding Plaintiff's mental status, Dr. Plahovinsak recorded that Plaintiff had clear sensorium while his speech was lucid, well modulated, and goal directed. R. 402. Further, Plaintiff's thought processes were concrete, coherent, and relevant. R. 402. Plaintiff displayed "no signs of a formal thought disorder and hallucinations and delusions were denied and not suspected. R. 402.

Psychologist Dr. Amy Brams completed a State agency review of Plaintiff on March 13, 2007, and noted that he could follow simple instructions, could attend and concentrate, could maintain adequate pace and persistence, and could relate and adapt to routine tasks in a work situation. R. 430.

Dr. Brams conducted a Mental Residual Functional Capacity ("RFC") Assessment on February 7, 2007. R. 428-30. Dr. Brams's Functional Capacity Assessment stated that Plaintiff [has a] "depressed mood, constricted affect, [history] of rumination, [but has] adequate sleep and appetite, adequate attention, concentration and memory. Claimant is able to follow simple instructions, attend and concentrate, keep adequate pace and persist, relate and adapt to routine tasks in a work situation." R. 430.

On February 21, 2008, Dr. Ronald Bagner issued a consultative examination report detailing that Plaintiff "ambulates with a slow but normal gait, gets on and off the examining table with moderate difficulty, dressed and undressed without assistance, and is not uncomfortable in the seated position, does not use a cane or crutches, can heel and toe with moderate difficulty." R. 433. Shortly thereafter on February 26, 2008, Dr. Dennis Coffey conducted a consultative examination and reported that Plaintiff's overall mood was "depressed with appropriate affect." R. 439. Dr. Coffey also noted that Plaintiff was obese, watched television, shopped for groceries, and was able to drive an automobile. R. 438-39. Dr. Coffey diagnosed Plaintiff with major depression, mild, as well as personality disorder with narcissistic and passive-dependent features. R. 440. Completing his evaluation, he added that Plaintiff's prognosis was guarded, and that Plaintiff did not appear to have the requisite emotional fortitude to sustain himself in a work setting. R. 440.

State agency review physician Dr. Robert Walsh examined Plaintiff on March 7, 2008. R. 456-463. Dr. Walsh determined that Plaintiff was able to lift or carry 20 pounds; frequently lift or carry 10 pounds; stand and/or walk about 6 hours in an 8-hour workday; sit with normal breaks for a total of about 6 hours in an 8-hour workday; and push and/or pull (including operation of hand and/or foot controls) in an unlimited amount. R. 457. Dr. Walsh listed the Plaintiff's postural limitations of occasionally for climbing, balancing, stooping, kneeing, crouching, and crawling. R. 458. Dr. Walsh noted that Plaintiff has unlimited use of manipulative dexterity and no visual limitations. R. 459. In Dr. Walsh's opinion, Plaintiff was capable of performing "light" work. R. 457.

Dr. Michael D'Adamo conducted a Mental Residual Functional Capacity Assessment on March 10, 2008. R. 466. He noted that Plaintiff was "not significantly limited" in the following: understanding and memory, sustained concentration and persistence, social interaction and adaptation with a few exceptions. With respect to understanding and memory, Dr. D'Adamo determined that Plaintiff's ability to understand and remember detailed instructions was moderately limited. R. 464. He also found Plaintiff "moderately limited" in his ability to carry out detailed instructions, ability to maintain attention and concentration for extended periods, and ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. R. 464. Plaintiff was further found to be "moderately limited" in his ability to complete a normal work-day and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. R. 465. Plaintiff's ability to accept instructions and respond appropriately to criticism from supervisors was also found to be moderately limited. R. 465.

In his Functional Capacity Assessment, Dr. D'Adamo's cognitive screening on Plaintiff's mental status "showed fair fund of information, accurate simple mental arithmetic. and adequate abstract thinking." R. 466. Although Plaintiff could not perform serial seven's, he could do serial three's. R. 466. Plaintiff was deemed to be capable of focusing efficiently upon routine job tasks, relating appropriately to others, and making social adaptations. As such, Dr. D'Adamo opined that Plaintiff "possesses the [Residual Functional Capacity ("RFC")] to adapt and be productive in routine jobs." R. 466.

A psychiatric review technique was conducted on March 14, 2008 by Dr. D'Adamo. Dr. D'Adamo found: (1) restriction of activities of daily living to be mild; (2) difficulties in maintaining social functioning to be mild; (3) difficulties in maintaining concentration, persistence, or pace to moderate; and (4) no episodes of decompensation. R. 452. Dr. D'Adamo also noted Plaintiff suffered from of "[p]athological dependence, passivity, or aggressivity." R. 449. Dr. D'Adamo also noted a "disturbance of mood, accompanied by a full or manic or depressive syndrome, as evidenced by. Anhedonia or pervasive loss of interest in almost all activities, [and] decreased energy." R. 445.

Plaintiff met with his physician Dr. Ranvier Ahlawat on September 17, 2008 for a coronary artery exam. Dr. Ahlawat performed a coronary artery CT angiography, and reached two conclusions. First, Dr. Ahlawat found Plaintiff to have 20-30% proximal left anterior descending artery stenosis secondary to mural plaque. R. 468. Second, Plaintiff had multiple plaques in the circumflex causing 20-30% stenosis. R. 469. Further, the plaque was "largely fibrotic/fibrous in nature with several central calcifications." R.469.

On October 2, 2008, Dr. Akhilesh Desai performed an MRI of Plaintiff's right knee. He noted a tear in Plaintiff's anterior cruciate ligitimate and a moderate amount of fluid present in the joint space. R. 470. Dr. Desai had also conducted an earlier examination of Plaintiff's back on February 14, 2008. R. 500. He concluded after a lumber MRI scan that there were no instances of recurrent disc herniation and the remainder of disc spaces did not show evidence of any disc herniation or spinal canal stenosis. R. 500.

Dr. Susan Janes, a psychiatrist, conducted an examination of Plaintiff on February 4, 2009. Dr. Janes diagnosed Plaintiff with depression, opined that Plaintiff could not work, and noted that the "length of [his] disability would be "more than 90 days but less than 6 months" (specifically, February 4, 2009 to August 1, 2009). R. 508. Dr. Janes evaluated Plaintiff's orientation, memory, attention span, language, knowledge, associations, speech, sleep pattern, gait, appearance and appetite as within normal limits. R. 502. Dr. Janes concluded that Plaintiff has a depressed mood and that he should continue his current level of care. R. 503.

Dr. Ahlawat issued an examination report dated May 20, 2009, that reflected a diagnosis of "low back pain, depression, COPD, muscle spasms," as well as depression. Dr. Ahlawat opined Plaintiff had limitations in walking, climbing, stooping, bending, lifting and in the use of his hands, but does not specify the degree of limitation. Wolf Affidavit at 29. In a report dated June 1, 2009, Dr. Ahlawat stated Plaintiff could lift and/or carry 5-10 pounds for one-third of an eight-hour workday. R. 504. Dr. Ahlawat further concluded that Plaintiff's standing and walking was affected by impairment in that Plaintiff can only walk uninterrupted for 15 minutes, or a total of 1 to 2 hours. R. 505. Dr. Ahlawat stated that Plaintiff could sit for a total of 2-3 hours for no more than 30 minutes at a time. R. 505. Dr. Ahlawat concluded that Plaintiff was unable to ...

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