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Shupick v. Astrue

March 25, 2010

STEPHEN SHUPICK, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge

ORDER AFFIRMING DECISION OF THE COMMISSIONER AND DISMISSING PLAINTIFF'S COMPLAINT

INTRODUCTION

This matter is before the court pursuant to a complaint filed by plaintiff Stephen Shupick on December 19, 2008, appealing the denial of his application for disability insurance benefits by the Social Security Administration. (Docket 1). Defendant opposes Mr. Shupick's complaint and moves the court to dismiss it in its entirety. (Docket 6). The court has jurisdiction over this case pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), and the case is ripe for adjudication.

FACTUAL AND PROCEDURAL HISTORY*fn1

At the time of the filing his application for disability insurance benefits, Mr. Shupick was 56 years old. (AR 116). Mr. Shupick is single and has no children. (AR 116-117). Mr. Shupick has nine siblings and was raised on a ranch in Eagle Butte, South Dakota. (AR 298). In 1968, at age 17, Mr. Shupick was involved in a motor vehicle accident and suffered a severe craniocerebral injury to the frontal areas of his brain. (AR 307). He underwent a cranioplasty in June 1969, but shortly thereafter he hit the front of his head while diving into a pool and underwent a second cranioplasty. Id.

After graduating from high school, Mr. Shupick worked on his family's ranch for approximately five years. (AR 298). With the assistance of vocational rehabilitation services, Mr. Shupick completed a course in electronics at a vo-tech school in Sturgis, South Dakota. Id. Mr. Shupick worked for three years at a company that installed and repaired two-way radios. Id. Much of this time was spent traveling. Id. The job ended when Mr. Shupick had a major seizure. Id. Mr. Shupick has suffered from a seizure disorder since the age of 10, but this has been controlled by medication and he has not had a seizure since 1979. (AR 309).

Mr. Shupick then completed training to become a registered nurse, again with the assistance of vocational rehabilitation services. (AR 299). Mr. Shupick began working for the VA hospital in Hot Springs, South Dakota, in September 1987 as a registered nurse. (AR 151). Mr. Shupick explained that his job duties included "medication distributions, treatments, hygienes [sic] things, monitor vital signs, deliver water or blankets, all aspects of being a RN." Id. Mr. Shupick remained working at the VA hospital until March 21, 2006, when he was approved for disability retirement under the Federal Employees Retirement System (FERS). (AR 150, 226-229).

On November 6, 2006, Mr. Shupick protectively filed an application for disability insurance benefits ("DIB") with the Social Security Administration (hereinafter the "Agency") pursuant to Title II of the Social Security Act, 42 U.S.C. § 401 et seq.*fn2 (AR 9). Mr. Shupick filed a formal application for benefits on November 16, 2006.*fn3 (AR 116-120). Mr. Shupick alleged that his disability stemmed from a brain injury, dementia, epilepsy, memory and vision problems, depression, allergies, high blood pressure, and headaches. (AR 76). Mr. Shupick's onset disability date was listed as March 21, 2006. (AR 116).

The Agency initially denied Mr. Shupick's application for benefits on February 2, 2007. (AR 71-73). In support of its decision, the Agency made the following determinations:

You state that you are disabled due to dementia, epilepsy, memory problems, depression, allergies, high blood pressure, vision problems, and headaches. Although you may have some limitations due to your impairment, it does not severely limit your ability to do some types of work. Medical evidence reports your intellect to be in the average range with immediate memory limitations close to the borderline range. Neither seizures or headaches are severe or frequent enough as to cause a severe restriction of ordinary activities. No severe complications have resulted from elevated blood pressure which can be controlled by treatment. You are able to move about and use your arms, hands and legs in a satisfactory manner. You are independent in your activities of daily living and are able to think, reason and act in your own best interest. Your visual problems are not severe enough to limit most ordinary activities. The reports do not show any other condition which would severely limit the ability to work. Considering medical records, age, education and work history, we have concluded that you are able to do work not involving stressful or prolong periods of concentration. (AR 71).

Mr. Shupick filed a request for reconsideration of the Agency's decision on February 28, 2007.*fn4 (AR 74-75). On May 16, 2007, the Agency independently reviewed Mr. Shupick's case and determined that the denial of his claim was proper. (AR 76-78). In reaching this decision, the Agency made the following determinations:

You state that you are disabled due to brain injury, dementia, epilepsy, memory and vision problems, depression, allergies, high blood pressure and headaches. Medical evidence shows satisfactory neurological function. Your seizures are not so severe or frequent as to cause a severe restriction of ordinary activities. There is no indication of nerve or muscle damage which would result in severe weakness or loss of function. Your visual loss is not severe enough to limit most ordinary activities. Your ability to think, remember, understand, and communicate is not severely restricted. No severe complications have resulted due to your allergies and high blood pressure which can be controlled by treatment. Although you have pain, it does not severely limit normal daily activities. The evidence shows these conditions do not severely limit the ability to work. Considering medical records, age, education and work history, we have concluded that you are able to do work with basic job requirements, not involving stressful or prolong periods of concentration. (AR 76).

On June 15, 2007, Mr. Shupick timely filed a request for a hearing before an Administrative Law Judge (hereinafter "ALJ").*fn5 (AR 79-81). On May 28, 2008, an administrative hearing in this matter was held before ALJ James W. Olson. (AR 19-65). Mr. Shupick appeared in person and through his attorney, Michael Simpson. (AR 19). Mr. Shupick testified at the hearing as did vocational expert William Tysdal and medical expert Dr. Thomas Atkin. (AR 20).

On August 19, 2008, the ALJ issued a written opinion denying Mr. Shupick's application for benefits. (AR 9-18). On September 8, 2008, Mr. Shupick requested review of the ALJ's decision by the Agency's Appeals Council.*fn6 (AR 5). The Appeals Council considered Mr. Shupick's objections to the ALJ's decision. (AR 1-3). On December 8, 2008, the Appeals Council denied Mr. Shupick's request for review, finding "no reason" to review the ALJ's decision. AR 1. In light of the Appeals Council's denial of review, the ALJ's decision stands as the final decision of the Agency. 20 C.F.R. § 416.1481.

After exhausting all administrative remedies, Mr. Shupick timely filed in federal court a complaint against the Commissioner of the Agency appealing the denial of DIB benefits.*fn7 (Docket 1). Mr. Shupick moves the court to reverse the decision of the ALJ, find that he is entitled to benefits, and award costs and reasonable attorney's fees under 42 U.S.C. § 406(b)(1) and the Equal Access to Justice Act, 28 U.S.C. § 2412. Id. Defendant moves the court to dismiss Mr. Shupick's complaint in its entirety. (Docket 6). Pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), this court has appellate jurisdiction over Mr. Shupick's case, which is ripe for adjudication.

MENTAL HEALTH RECORDS

A. First Evaluation by Dr. Scott Cherry

On September 26, 2002, Mr. Shupick saw Dr. Scott Cherry of the Black Hills Rehabilitation Hospital for a neuropsychological evaluation. (AR 307-312). Dr. Cherry administered a variety of tests to assess Mr. Shupick's level of cognitive and emotional functioning. (AR 307).

Mr. Shupick complained of some difficulties in processing recent memories, although his remote and immediate memory appeared appropriate. Id. Mr. Shupick stated that he established a routine to allow him to function appropriately every day, yet he had difficulty adapting to changes in his routine. (AR 309). Mr. Shupick characterized himself as a "loner," with questionable bouts of depression and social anxiety. Id. Mr. Shupick indicated that he was not receptive to counseling. Id. He expressed some occupational discontent because he had not had a pay raise in several years. Id.

With respect to Mr. Shupick's memory, test results showed the following:

Assessment of memory processing, auditory memory via verbal learning over trials, indicated a mild degree of deficit in immediate memory span. Mr. Shupick demonstrated a moderate degree of deficit in initial learning with a moderate degree of deficit in his learning curve. Recall memory after an interference task was moderately impaired with delayed recall being mildly impaired and delayed recognition being intact; however, a mild degree of intrusions were noted.

Assessment of complex immediate delayed and delayed recognition memory were within range.

Complex visual spatial construction abilities were intact with appropriate processing speed.

Executive functioning (conceptual tracking and shift of set) was mildly impaired with verbal fluency, access to semantic memory, hypothesis testing and generation, nonverbal problems solving and abstract reasoning, mental efficiency, and flexibility being moderately to severely impaired with a moderate degree of perserverative responses. (AR 310-311).

Dr. Cherry opined that Mr. Shupick had neuropsychological deficits most pronounced in "auditory memory processing, both in learning and acquisition of new information and recall of that information, with deficits noted in executive functioning of verbal fluency, access to semantic memory, hypothesis testing and generation, mental flexibility and efficiency, conceptual tracking, and shift of set." (AR 311). Mr. Shupick appeared to be experiencing pervasive dysthymia with recurring periods of anxiety and impaired interpersonal relationships. Id. Dr. Cherry noted that Mr. Shupick was deficient in executive functioning which could impair "organization, planning, future orientation, insight, mental flexibility, and self-monitoring of ongoing behavior." Id. Dr. Cherry opined that, due to difficulties in decision-making, Mr. Shupick should not be directly involved in direct patient care, such as medication administration, but may be involved at the administrative or social level of patient care. (AR 312).

B. Evaluation by Dr. Allen Gee

On June 25, 2004, Mr. Shupick saw Dr. Allen Gee of Frontier Neurosciences, LLC, for a second opinion and neurology consultation at the request of Dr. James Bowman, Mr. Shupick's treating physician. (AR 304-306). Dr. Gee noted that Mr. Shupick's affect was flat, with "some decreased verbal fluency and some mildly slurred processing." (AR 305). Mr. Shupick appeared oriented to person, place, and time, and his recent and remote memory was intact. Id. Mr. Shupick's attention span was normal, his speech fluent, and his language appropriate. Id. Dr. Gee opined that Mr. Shupick's "increased memory difficulties may be secondary to medications, metabolic etiology or depression." Id. Dr. Gee also noted that a prior 2002 neuropsych evaluation showed "a decreased auditory processing, decrease in verbal fluency, pervasive dysthymia, [and] deficits of executive functioning and verbal fluency." Id. These findings "were consistent with bi-frontal lobe and left temporal lobe dysfunction." Id.

C. Second Evaluation by Dr. Scott Cherry

Upon referral from Dr. Gee, Dr. Cherry saw Mr. Shupick on October 1, 2004, for testing and a second neuropsychological evaluation. (AR 313-316). Mr. Shupick indicated that his immediate memory was intact, with difficulty in his recent and remote memory. (AR 313). He indicated that his emotional state was the same and that he did not want to take any medications to address emotional concerns. Id. Mr. Shupick described himself as a loner who relied on others to make decisions and who experienced bouts of depression and social anxiety. (AR 313-314). Test results, in pertinent part, showed as follows:

Assessment of memory processing, auditory memory via verbal learning over trials, indicated a moderate degree of deficit in immediate memory span (supra span), with a severe degree of deficit in recall and delayed recall with a moderate degree of deficit in retention rate, 71%, as well as in recognition memory. Assessment of visual memory, via visual learning over trials, indicated intact immediate memory span (supra span). Recall was mildly impaired with intact delayed recall and delayed recognition with an 88% retention rate. . . . .

Executive functioning (conceptual tracking, shift of set, and verbal fluency) was intact. There was a severe degree of deficit in access to semantic memory, hypothesis testing and generation, concept formation and judgment, mental flexibility and efficiency, discriminating significant from insignificant details in ones [sic] environment, planning ahead and exercising adequate judgment in a number of situations, ability to separate critical from irrelevant aspects of a situation, benefitting dependently and correctly from trial and error experiences in a variety of environmental types of feedback, and learning from experiences while adaptively integrating new information. (AR 315).

Test results further indicated that Mr. Shupick may be experiencing significant psychiatric distress, causing him at times to be depressed, worried, tense, nervous, and confused and to suffer from insomnia, fatigue, muscle tension, distracted thinking, and a general dysphoric mood. Id.

At times, Mr. Shupick demonstrated poor judgment, was highly introspective and socially-uncomfortable, and was plagued by self-doubts. Id. Dr. Cherry opined that Mr. Shupick's most pronounced deficits appeared to be in his auditory memory processing and executive functioning. (AR 315-316).

D. Medical Associates of the Black Hills, LLC.

Treatment records indicate that Mr. Shupick saw Dr. James Bowman sporadically in 2006 at the Medical Associates of the Black Hills. (AR 285-290). Pertinent to this discussion is a letter dated January 24, 2006, written by Dr. Bowman to Mr. Shupick's employer, the Black Hills Health Care System, Department of Veterans Affairs:

I have known Mr. Shupick for many years. I have been his physician since prior to 2002. He has a known seizure history. He also has a history of closed head trauma. Mr. Shupick has had increasing problems with memory and also varying moods. He also has obsessive compulsive behaviors. He has had extensive evaluation with psychological testing by Dr. Scott Cherry, Ph.D. It has become "quite apparent that Mr. Shupick is functioning at a level which becomes very apprehensive at his job and is almost paranoid of making a mistake which obviously could be injurious." These mistakes, although he is concerned about them, have not occurred and to my knowledge no incompetencies have been observed. It is extremely stressful for him and is consistent with psychological testing performed by Dr. Scott Cherry. It is my impression and Dr. Cherry's that many of the problems that Mr. Shupick is having are quite ...


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