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Benjamin D. Goldberg v. Michael J. Astrue

October 21, 2011


The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge Kemp


Plaintiff, Benjamin D. Goldberg, filed this action seeking review of a final decision of the Commissioner of Social Security denying his application for social security disability benefits. This case is before the Court for consideration of Plaintiff's objections (ECF No. 21) to the Report and Recommendation of the Magistrate Judge that was filed on August 1, 2011 (ECF No. 20). The Magistrate Judge recommended that the Court overrule Plaintiff's statement of errors, affirm the Commissioner's finding that Plaintiff was not disabled, and enter judgment in favor of Defendant. For the reasons stated below, the Court OVERRULES Plaintiff's Objections, ADOPTS the Magistrate Judge's Report and Recommendation, OVERRULES Plaintiff's statement of errors, and DIRECTS the Clerk to enter judgment in favor of Defendant.


Plaintiff makes one objection to Report and Recommendation's summary of the medical evidence and the testimony presented at the administrative hearing. He argues that the statement found on page 8 of the Report and Recommendation, where the Magistrate Judge is describing the report of Dr. Keown, is inaccurate because the Report and Recommendation said that Dr. Keown had concluded that Plaintiff could "probably work only a few hours a day in a low demand, low stress, low production quota job," but Dr. Keown's report actually states that "I would expect that [Dr. Goldberg] could do some part time employment, perhaps only a couple hours a day, in which he would be involved with low stress, low demand, and low production expectation." The difference between the phrase "a couple of" used by Dr. Keown and the word "few" used in the Report and Recommendation is significant, according to Plaintiff, because someone who can work only a couple of hours a day is not capable of performing substantial gainful employment, whereas someone who could work a few hours a day might be able to do that.

The Court sees no need to make such a fine distinction, if, indeed, there is a distinction to be made here. See, e.g., Merriam-Webster Online Dictionary (listing "few" as a synonym of "couple"). As the Court discusses below, this finding did not form the basis of the Magistrate Judge's conclusion (or the ALJ's) that Plaintiff was not disabled, but was one of a number of factors taken into account. Both the ALJ and the Magistrate Judge were aware of the content of Dr. Keown's report and his conclusions, and the semantic difference, if any, between the phrase "a couple of" and the word "few" is of no significance to the Court's ultimate decision.

As to the balance of the summary of the testimony and medical evidence, because neither party has objected to it, the Court adopts that summary and repeats here only those facts relevant to the resolution of Plaintiff's objections.

Plaintiff is a medical doctor and was 46 years old on his last insured date, which was December 31, 1995. He stopped working in 1992 as a result of an accidental skull fracture. He claimed that loss of memory, inability to concentrate, and irritability with people, all caused by the accident, prevented him from working.

Plaintiff was hospitalized on March 27, 1992 after his accident (a fall in his kitchen). The treating doctors diagnosed a skull fracture but did not see any intracranial bleeding. After four days, Plaintiff was transferred to a drug rehabilitation program, although he adamantly denies that he had a drug problem. Sometime after that, he began treatment with a Dr. Williams. Although there are no contemporaneous treatment notes in the record (they had apparently been destroyed), Dr. Williams did certify to Plaintiff's private disability insurer that Plaintiff was disabled, and he wrote a report in 2006 attributing this disability to major depression and chemical dependency in remission. Dr. Williams also told the insurer that after the accident, Plaintiff developed panic attacks, had a short attention span, was unable to concentrate or to be around people, generally distrusted people, and could not sit or stand for very long at any fixed position. A later treating source, Dennis Maceiko, a psychologist, also certified Plaintiff's inability to do a number of work-related activities, but Plaintiff did not start seeing Mr. Maceiko until 2001.

The disability insurer, Monarch Life Insurance Company, had Plaintiff examined by its own expert, Dr. Keown. He wrote a lengthy report following an examination that took place on February 8, 1993. It was in that report that Dr. Keown stated Plaintiff could work "a couple of hours" a day at a job such as reviewing medical records. Dr. Keown also reported that Plaintiff was mildly to moderately depressed (but he could not determine the actual extent of depression because Plaintiff refused psychological testing), that he was guarded and hostile during the examination, and that he was poorly motivated to deal with his depression.

The only evaluation done at the request of the Social Security Administration took place in 2008, sixteen years after the accident, but it should be noted that Plaintiff did not apply for social security disability benefits until 2005. Mr. Bousquet, who did the evaluation, concluded that as of that date, Plaintiff had a moderate impairment in his ability to relate to others, a mild impairment in his ability to understand, follow, and remember simple instructions, a moderate impairment in his persistence and pace, and a moderate impairment in his ability to deal with the stress and pressure of daily work. However, he was not impaired in his ability to maintain concentration and attention for simple repetitive tasks.

There were two administrative hearings held in this case. At the second hearing, the ALJ asked a vocational expert a series of questions relating to a hypothetical person who was limited to following simple instructions and to doing routine, repetitive work at the unskilled level, who could have only limited contact with the public or co-workers, and who could not be in a situation where intense concentration was required. The VE testified that such a person could do a number of medium, light and sedentary jobs such as dry cleaner helper, machine presser, microfilm monitor, folding machine operator, laminator, and copy examiner. A number of these jobs could be done with a sit/stand option.

In the administrative decision, the ALJ found that Plaintiff had severe impairments including closed head injury with residuals, depression, opiate abuse, and medullary sponge kidney disease, and a number of nonsevere impairments by history including gout, arthritis, flat feet, back pain, diminished sensation in the right finger, and a pre-diabetic condition, and that these impairments limited him in the way described to the VE in the hypothetical questions. Because the VE identified jobs such a person could do, the ALJ denied benefits. The Magistrate Judge has now recommended that the Court affirm that decision.

Plaintiff objects to a number of aspects of the Report and Recommendation. He contends, contrary to the Magistrate Judge's conclusion, that (1) the opinion of Dr. Williams was not properly rejected; (2) that the absence of contemporaneous treatment records does not support the ALJ's rejection of Dr. Williams' opinion; (3) that Mr. Bousquet's findings did not provide an adequate basis for rejecting Dr. Williams' opinion; (4) that the record showed that Plaintiff could not do the physical demands of light or sedentary work from 1992 to 1995; (5) that a 2008 MRI confirmed the severity of the 1992 injury ...

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