Impala v. Social Security Admin

Filing 25

ORDER denying 18 Plaintiff's Motion for Judgment on the Pleadings and granting 22 the Commissioner's Motion to Affirm the Decision. See the attached memorandum of decision. The clerk is ordered to close this case. SO ORDERED. Signed by Judge Vanessa L. Bryant, June 15, 2011. (Butler, Ayanna)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ZEEWE D. IMPALA
Plaintiff
v.
MICHAEL J. ASTRUE,
COMMISSIONER
SOCIAL SECURITY ADMINISTRATION,
Defendant

:
:
:
:
:
:
:
:
:

CIVIL ACTION NO.
3:10-cv-505 (VLB)

June 15, 2011

MEMORANDUM OF DECISION DENYING THE PLAINTIFF’S MOTION TO REVERSE
AND REMAND AND GRANTING THE COMMISIONER’S MOTION TO AFFIRM
The plaintiff, Zeewe D. Impala, filed this action seeking review of the final
decision of the defendant, Michael J. Astrue, Commissioner of the Social Security
Administration (ACommissioner@), denying his application for supplemental
security income. The plaintiff has filed a motion to reverse the Commissioner=s
decision and to remand the case [Doc. #18], and the Commissioner has filed a
motion to affirm [Doc. #22]. For the reasons given below, the plaintiff=s motion to
reverse and to remand is DENIED, and the Commissioner=s motion to affirm is
GRANTED.

I. ADMINISTRATIVE PROCEEDINGS
The plaintiff alleged that he became disabled on January 1, 1988, at age 33.
[Tr. 103] He received supplemental security income because of a back injury
from June 1991 to March 1997. [Tr. 155, 336] His benefits were terminated in
April 1997 due to his federal conviction of bank robbery and a firearms violation,
1

which added to his already significant criminal record stretching back to the
1970s. [Tr. 155, 335-36] After being released from prison in February 2008, the
plaintiff filed his current application for supplemental security income on March
3, 2008, alleging that he suffered from a blood disease known as leukopenia, an
enlarged prostate with bladder incontinence, cataracts, personality disorder, and
schizophrenia. [Tr. 10, 103] His application was denied, and he then requested a
hearing before an Administrative Law Judge (AALJ@). [Tr. 52] ALJ Robert A.
DiBiccaro held a hearing, which consisted of testimony by the plaintiff, on May
11, 2009. [Tr. 12-42] The ALJ then issued his decision on September 2, 2009,
finding that the plaintiff was not disabled and therefore not entitled to
supplemental security income. [Tr. 4-11]
The ALJ applies a five-step sequential evaluation process to an application
for supplemental security income. First, the ALJ determines whether the
claimant is performing substantial gainful work activity. 20 C.F.R. '
416.920(a)(4)(i). If the claimant is not performing such activity, the ALJ proceeds
to the second step to determine whether the claimant has a severe medically
determinable physical or mental impairment or combination of impairments. '
416.920(a)(4)(ii). The impairment must be expected to result in death or must last
or be expected to last for a continuous period of at least twelve months. '
416.909. If the claimant has a severe impairment, the ALJ proceeds to the third
step to determine whether the impairment meets or equals an impairment listed in
appendix 1 of the applicable regulations. ' 416.920(a)(4)(iii). If the claimant=s
impairment meets or equals a listed impairment, the claimant is disabled.

2

If the claimant does not have a listed impairment, the ALJ proceeds to the
fourth step to determine whether the claimant has the residual functional capacity
(ARFC@) to perform his past relevant work. ' 416.920(a)(4)(iv). RFC is defined as
the most that a claimant can do despite the physical and mental limitations that
affect what he can do in a work setting. ' 416.945(a)(1). If the claimant=s RFC
indicates that he cannot perform his past relevant work, the ALJ proceeds to the
fifth step to determine whether the claimant can perform any other work available
in the national economy in light of his RFC, age, education, and work experience.
' 416.920(a)(4)(v). The claimant is entitled to supplemental security income if he
is unable to perform other such work. The claimant bears the burden of proof as
to the first four steps, while the Commissioner bears the burden of proof as to the
fifth step. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008).
In the present case, the ALJ determined that the plaintiff was not
performing substantial gainful activity and did not have any medically
determinable impairments. [Tr. 9-11] The ALJ considered the plaintiff=s alleged
impairments, but the objective medical evidence showed that those conditions
were not severe. [Tr. 9-11] The ALJ accordingly ended his analysis at step two of
the sequential evaluation process and concluded that the plaintiff was not
disabled. [Tr. 11] The Commissioner=s Decision Review Board selected the
plaintiff=s claim for review but then notified him on January 28, 2010 that it had
failed to complete its review of the ALJ=s decision within the required ninety days.
[Tr. 1-3] The ALJ=s decision thus became final, and the plaintiff then filed the
present case.

3

II. STANDARD OF REVIEW
Following the denial of a supplemental security income claim, A[t]he court
shall have power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing. The
findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .@ 42 U.S.C. ' 405(g); see also id. '
1383(c)(3).
AA district court may set aside the Commissioner=s determination that a
claimant is not disabled only if the factual findings are not supported by
substantial evidence or if the decision is based on legal error. . . . Substantial
evidence means more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.@ Burgess v.
Astrue, 537 F.3d 117, 127 (2d Cir. 2008). AEven where the administrative record
may also adequately support contrary findings on particular issues, the ALJ=s
factual findings must be given conclusive effect so long as they are supported by
substantial evidence.@ Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citing
Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)).

III. DISCUSSION
In the present case, the plaintiff argues that (1) remand is required to allow
the ALJ to consider a medical report completed by Dr. Sidney Bogardus, (2) the

4

ALJ improperly failed to develop the record, (3) the ALJ improperly determined
that the plaintiff lacked a severe impairment, and (4) the ALJ improperly assessed
the plaintiff=s credibility.

A. Dr. Bogardus=s Medical Report
The plaintiff first argues that the ALJ must consider a medical report
completed by the plaintiff=s treating gastroenterologist, Dr. Bogardus, on
February 9, 2010, which was twelve days after the Commissioner=s Decision
Review Board notified the plaintiff of final agency action in his case. Dr.
Bogardus completed the report in conjunction with the plaintiff=s application for
benefits with the Connecticut Department of Social Services. In the report, Dr.
Bogardus indicated that he had been treating the plaintiff for hepatitis C and
leukopenia since March 6, 2009, which was approximately two months before the
ALJ hearing. [Doc. #18, Ex. A, p. 4] Dr. Bogardus reported that the plaintiff=s
conditions prevented him from working for six months or more. [Doc. #18, Ex. A,
p. 3] He did not opine that he would be prevented from working for at least twelve
consecutive months. Dr. Bogardus wrote that the plaintiff=s A[t]reatment caused
significant symptoms, both physical and mental. These treatment effects likely
exacerbate [his] underlying psychiatric issues and affect [his] ability to work.
Overall prognosis [is] good for hepatitis C [but] unclear otherwise.@ [Doc. #18, Ex.
A, p. 3] Dr. Bogardus did not fill out the physical capacity evaluation and mental
RFC assessment portions of the report. In the mental status information section
of the report, Dr. Bogardus acknowledged that he was Anot a psychiatrist,@ but he

5

nevertheless wrote: APatient appears to suffer from depressive and anxiety
symptoms and possibly other issues. His hepatitis C treatment may exacerbate
this.@ [Doc. #18, Ex. A, p. 6] In the medications section of the report, Dr.
Bogardus explained that the plaintiff=s medications Acan [theoretically] cause
mood changes, anxiety, sleep disturbance, fatigue C all can affect ability to work.@
[Doc. #18, Ex. A, p. 10 (emphasis added)]
In order for the Court to remand a case to the Commissioner for
consideration of additional evidence, the plaintiff Amust show that the proffered
evidence is (1) new and not merely cumulative of what is already in the record . . .
and that it is (2) material, that is, both relevant to the claimant=s condition during
the time period for which benefits were denied and probative . . . . The concept of
materiality requires, in addition, a reasonable possibility that the new evidence
would have influenced the [Commissioner] to decide [the] claimant=s application
differently. . . . Finally, [the] claimant must show (3) good cause for [his] failure to
present the evidence earlier.@ Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988).
In the present case, the plaintiff argues that Dr. Bogardus=s report meets
the first prong of the Tirado test because Dr. Bogardus opined on the plaintiff=s
ability to work and the relationship among his impairments. The Commissioner
argues that the report is merely cumulative because the record already contains
Dr. Bogardus=s treatment notes, and he failed to fill out the physical capacity
evaluation and mental RFC assessment portions of the report. Although it is a
close call due to the report=s incompleteness and relative lack of detail, the Court
agrees with the plaintiff that the report qualifies as new evidence pursuant to

6

Tirado because Dr. Bogardus=s treatment notes do not provide the opinions
contained in the report.
As to the second prong of Tirado, the plaintiff contends that the report is
relevant and probative because it is the only opinion evidence provided by a
treating source. The plaintiff further argues that the ALJ would have found that
the plaintiff had severe impairments if the ALJ had been able to consider the
report. The Commissioner contends that the report failed to identify physical or
mental limitations bearing on the plaintiff=s ability to work. The Commissioner
also argues that Dr. Bogardus identified the duration of the plaintiff=s conditions
as six months or more, while a minimum duration of twelve months is required by
20 C.F.R. ' 416.909.
The Court agrees with the Commissioner=s arguments and determines that
the plaintiff has not met his burden of showing a reasonable possibility that the
report would have caused the ALJ to reach a different decision. Dr. Bogardus
reported a good prognosis for the plaintiff=s hepatitis C but was Aunclear@ as to
the leukopenia. [Doc. #18, Ex. A, p. 3] Dr. Bogardus stated that the plaintiff=s
treatment would Alikely@ worsen his Apsychiatric issues@ and impact his ability to
work, but Dr. Bogardus did not explain how the plaintiff=s ability to work would be
affected. [Doc. #18, Ex. A, p. 3] Dr. Bogardus was similarly imprecise when he
noted that the plaintiff Aappears to suffer@ from depression, anxiety, and Apossibly
other issues,@ which Amay@ be worsened by his hepatitis C treatment. [Doc. #18,
Ex. A, p. 6] As Dr. Bogardus forthrightly acknowledged, he is a
gastroenterologist, not a psychiatrist, so it is not reasonably possible that the

7

ALJ would accept his uncertain opinions regarding the plaintiff=s mental
condition. Dr. Bogardus failed to evaluate the plaintiff=s physical capacity and
assigned less than the minimum required duration to the plaintiff=s possible
conditions. The equivocality of Dr. Bogardus’ report is further illustrated by its
statement that the plaintiff=s medications Acan cause@ side effects and Acan affect
ability to work.” He did not state that the plaintiff actually experienced the
specific side effects or that they actually affected his ability to work. [Doc. #18,
Ex. A, p. 10]. Moreover, Dr. Bogardus did not state that Impala would suffer
symptoms preventing him from working for twelve or more months. In light of all
of the weaknesses in Dr. Bogardus=s report, it is not reasonably possible that the
ALJ would have concluded that the plaintiff had a severe impairment if the ALJ
had been able to review the report. The report does not satisfy the materiality
requirement of Tirado.
The Court notes that the plaintiff also has not shown good cause under the
third prong of Tirado. Dr. Bogardus began treating the plaintiff on March 6, 2009,
the ALJ hearing occurred on May 11, 2009, the ALJ issued his decision on
September 2, 2009, and Dr. Bogardus completed the report five months later on
February 9, 2010, approximately one week after Impala was notified by the
Decision Review Board that it failed to complete its review of his case. Nothing in
the report suggests that it could not have been completed within the first few
months of treatment. The report was not dependent upon any information that
arose after the case was submitted to the ALJ for consideration. The
circumstances suggest that the only reason Dr. Bogardus completed the report

8

on February 9, 2010 was because the plaintiff decided to apply for benefits with
the Connecticut Department of Social Services, and the report was part of that
application. As the plaintiff has failed to meet the second and third prongs of
Tirado as to Dr. Bogardus=s report, the case may not be remanded to the
Commissioner on that basis.

B. Development of the Record
The plaintiff next argues that the ALJ improperly failed to develop the
record. Both the ALJ and the claimant have obligations in assembling the record.
The claimant has the burden of producing evidence: A[The claimant] must furnish
medical and other evidence that [the Commissioner] can use to reach
conclusions about [the claimant=s] medical impairment(s).@ 20 C.F.R. ' 416.912(a).
The ALJ must affirmatively develop the record: AEven when a claimant is
represented by counsel . . . the social security ALJ, unlike a judge in a trial, must
on behalf of all claimants . . . affirmatively develop the record in light of the
essentially non-adversarial nature of a benefits proceeding.@ Moran v. Astrue, 569
F.3d 108, 112 (2d Cir. 2009).
The plaintiff contends that the ALJ should have (1) considered the
plaintiff=s supplemental security income application associated with his back
injury in approximately 1991 and (2) obtained opinions from his treating
physicians, such as Dr. Bogardus. As to the 1991 application, the Commissioner
states that it was unavailable because it had been destroyed. Regardless of its
availability, it does not appear to be relevant because it concerned a back injury

9

while the plaintiff=s current application did not allege a back injury. As to
opinions from treating physicians, the Court determined in part III-A that it was
not reasonably possible that Dr. Bogardus=s opinion would have changed the
ALJ=s decision. The Commissioner points out that the plaintiff refused to submit
to a consultative medical examination even though the Commissioner warned
him that the record contained insufficient evidence to support his claims. [Tr.
160] The plaintiff stated that any consultative examiner would be biased. [Tr.
145] The ALJ had Dr. Bogardus’ treatment notes. At the ALJ hearing, the plaintiff
was represented by counsel who confirmed that the record was complete. [Tr.
18] On the basis of those facts, the Court concludes that the ALJ satisfied his
obligation to develop the record. The plaintiff could have augmented the record
by complying with the Commissioner=s request for a consultative examination,
but the plaintiff refused.

C. The Plaintiff=s Impairments
The plaintiff next argues that the ALJ improperly determined that his
impairments were not severe. In order to be severe, an impairment must
significantly affect the claimant=s ability to do basic work activities. 20 C.F.R. '
416.920(c). As to his hepatitis C and leukopenia, the plaintiff cites Dr. Bogardus=s
report, which the Court has already determined to be insufficiently persuasive.
As to his mental health, the plaintiff cites prison psychiatry records from 1998
and 1999. Although the plaintiff was diagnosed with polysubstance dependence
and personality disorder with narcissistic and antisocial features, the psychiatrist

10

determined that they Adid not have a significant impact on [the plaintiff=s] mental
or emotional condition . . . during the current evaluation.@ [Tr. 341] There are no
subsequent mental health records. As to his enlarged prostate with bladder
incontinence, the plaintiff cites two complaints about incontinence in prison in
2005, including a request for diapers, and a treatment note from March 6, 2009
indicating that he had to urinate Amore than twice@ at night. [Tr. 541] That
evidence does not show a significant impact on his ability to work. The ALJ
properly reviewed the evidence and determined that the plaintiff=s impairments
were not severe.

D. The Plaintiff=s Credibility
The plaintiff=s last argument is that the ALJ improperly assessed his
credibility. The ALJ=s examination of credibility begins with a determination of
whether the claimant suffers from an underlying medical impairment that could
reasonably be expected to cause the alleged symptoms. 20 C.F.R. ' 416.929(b). If
so, the ALJ considers the objective medical evidence and other evidence of
symptoms, including (1) the claimant=s daily activities; (2) the location, duration,
frequency, and intensity of the symptoms; (3) precipitating and aggravating
factors; (4) the type, dosage, effectiveness, and side effects of medication taken
to alleviate the symptoms; (5) treatment to relieve the symptoms, other than
medication; (6) any measures the claimant has used to relieve the symptoms; and
(7) other factors concerning the claimant=s functional limitations and restrictions
relating to the symptoms. '' 416.929(c)(2) through (c)(3).

11

In the present case, the ALJ determined that the plaintiff did not have any
medically determinable impairments. The Court reviewed that finding in parts IIIA and III-C, concluding that the ALJ=s determination was proper. The ALJ was
therefore not required to proceed with a credibility assessment pursuant to '
416.929. The ALJ nonetheless found that the plaintiff was Anot fully credible@
because the medical evidence did not support his claim that he was unable to
work. [Tr. 11] That finding, although not required, was proper due to the
inconsistency between the plaintiff=s subjective claim and the objective medical
evidence and its consistency with the objective medical evidence. Moreover, to
the extent a credibility assessment was improper, it was harmless because it did
not affect the outcome.

IV. CONCLUSION
The plaintiff’s motion to reverse and to remand [Doc. #18] is DENIED, and
the Commissioner’s motion to affirm [Doc. #22] is GRANTED. The Clerk is
directed to CLOSE this case.

IT IS SO ORDERED.
_________/s/________
Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: June 15, 2011.

12