United States District Court, D. Connecticut
RULING ON THE PLAINTIFF'S MOTION TO REVERSE AND
THE DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE
VANESSA L. BRYANT, U.S.D.J.
an administrative appeal following the denial of the
Plaintiff, Greg Kowalski's, application for disability
insurance benefits (“DIB”) and supplemental
security income benefits (SSI). It is brought pursuant to 42
U.S.C. §§ 405(g).
Kowalski (“Plaintiff” or “Kowalski”)
has moved for an order reversing the decision of the
Commissioner of the Social Security Administration
(“Commissioner”), or remanding the case for
rehearing. [Dkt. No. 13.] The Commissioner, in turn, has
moved for an order affirming the decision. [Dkt. No. 14.]
following reasons, Kowalski's Motion for an Order
Reversing or Remanding the Commissioner's Decision [Dkt.
No. 13] is DENIED, and the Commissioner's Motion to
Affirm that Decision [Dkt. No. 14] is GRANTED.
following facts are taken from the parties' Joint
Stipulation of Facts (“Joint Stipulation”) [Dkt.
No. 17] unless otherwise indicated.
was born on August 20, 1954. [Dkt. No. 12-3 at 27.] He
completed high school and earned certifications in martial
arts from Japan. Id. at 45-47. He founded, owned,
and served as the head instructor for a martial arts studio
from 2000 to December 20, 2011, the alleged onset date of his
disability. Id. at 20, 47, 49. He had accrued enough
social security earnings to remain insured through September
30, 2013. Id. at 22.
February 17, 2012, Kowalski applied for a period of
disability and disability insurance benefits, and on February
29, 2012, he applied for supplemental security income.
Id. at 20. On September 19, 2012, a disability
adjudicator in the Social Security Administration denied his
initial request for disability benefits and supplemental
security income and thereafter denied his request for
reconsideration. Id. at 20.
15, 2014, Kowalski appeared (with counsel) for a hearing
before an Administrative Law Judge (“ALJ”).
Id. at 40. On September 9, 2014, the ALJ issued a
decision denying benefits. Id. at 28. On September
22, 2015, the appeals council denied Kowalski's request
for review of that decision, thereby making the ALJ's
decision the final decision of the Commissioner. Id.
at 1. This appeal followed.
Plaintiff's Medical History
early medical records were not provided to the ALJ, but a
July 31, 2012 consultative examination completed for the
disability determination process provides an overview of his
early medical history. [Dkt. No. 12-8 at 321.] Kowalski
contracted Hepatitis C and cirrhosis of the liver when he was
in high school (estimated between 1968 and 1972 based on
Kowalski's age), though he was never treated for either
condition. Id. at 321. In “the mid-1990s,
” he was placed on thyroid medication for
hypothyroidism. Id. at 321. In approximately 2008,
he was diagnosed with severe male hypogonadism. Id.
at 348. On October 24, 2011,  a biopsy and Prostate-Specific
Antigen (“PSA”) test indicated Kowalski had
prostate adenocarcinoma. Id. at 287. He was formally
diagnosed with prostatic adenocarcinoma on December 20, 2011,
the alleged date of onset of disability. [Dkt. No. 12-8 at
283 (primary care physician's medical chart referencing
diagnosis on December 21, 2011); see also Dkt. No.
12-4 at 79 (referring to diagnosis date).]
March 13, 2012, Dr. Gary Blick, Kowalski's primary care
physician (Dkt. No. 12-4 at 76), indicated there was no
evidence Kowalski had recurring malignancy or distant
metastases. [Dkt. No. 12-8 at 282.] He stated
Kowalski's other diagnoses as of March 2012 included
chronic Hepatitis C, Hypogonadism, impaired focus and
concentration, marked fatigue, and memory loss. Id.
Dr. Blick noted Kowalski experienced depression when he
ceased testosterone replacement therapy for hypogonadism for
reasons relating to his cancer. Id.
August 13, 2012, Dr. Ralph Stroup, an urologist, examined
Kowalski as part of continuing active surveillance of his
prostate cancer. Id. at 336. Dr. Stroup noted
Kowalski's PSA normalized after he stopped testosterone
replacement therapy and found his vital signs were stable.
February 21, 2013, Dr. Blick examined Kowalski and found his
chronic hepatitis C, still untreated, may be causing
Kowalski's reported symptoms including anxiety,
arthralgia, confusion, decreased concentration, fatigue,
headache, memory loss, and myalgia. Id. at 348. He
also noted Kowalski's history of severe male hypogonadism
and opined the condition was “rapidly worsening”
and of “debilitating intensity, ” causing
symptoms including depression, fatigue, impaired focus and
concentration, hematuria,  insomnia, decreased libido, and
lightheadedness. Id. Dr. Blick concluded Kowalski
was “100% disabled” given his hepatitis C,
hypogonadism, and prostate cancer. Id. at 351.
April 23, 2013, Dr. Blick again examined Kowalski and noted
symptoms including diarrhea lasting longer than one year,
abdominal bloating, abdominal cramping, headaches, nausea,
heartburn, and loss of approximately fifteen pounds over
seven to nine months. Id. at 344. Kowalski continued
to experience lack of energy and reported difficulty
sleeping, depression, anxiety, decreased appetite, decreased
ability to concentrate, and negativity. Id. Kowalski
also reported joint stiffness but no limb pain. Id.
at 345. He repeated his assessment that Kowalski was
“100% disabled” due to hepatitis C, prostate
cancer, weight loss, diarrhea, lack of energy, and
“prolonged depressive reaction.” Id. at
March 10, 2014, Dr. Blick noted continued abdominal pain,
abdominal bloating, diarrhea, and heartburn, but no
additional unintentional weight loss. Id. at 340. He
also recorded Kowalski's complaints of continued anxiety,
depression, difficulty concentrating, and difficulty
sleeping. Id. at 341. He again concluded Kowalski
was 100% disabled due to chronic hepatitis C and prostate
cancer with the aforementioned physical and emotional
manifestations. Id. at 343.
Expert Examinations and Opinions
September 6, 2012, Dr. Steven Kahn performed a psychiatric
consultative examination and found Kowalski “has had at
least a degree of depression as a consequences of [his]
physical problems” for “the past four or five
years.” Id. at 324. Dr. Kahn found Kowalski
had “low energy and low motivation, which could also be
due to his low testosterone and to some of his physical
issues” including hypothyroidism. Id. Kowalski
reported to Dr. Kahn that he is not overly pessimistic or
suicidal, has no psychotic symptoms or substance abuse
problems, but is less inclined to socialize than in the past.
Id. at 324. Dr. Kahn found Kowalski was cooperative,
made good eye contact, had a normal rate of speech, was
well-oriented, and could focus and concentrate reasonably
well. Id. at 324. Dr. Kahn concluded Kowalski
“probably [had] adjustment disorder with disturbance of
mood.” Id. at 325. He further noted Kowalski
exhibits some symptoms of depression but opined those
symptoms, including low energy and low motivation, could be
attributable to low testosterone. Id. However, Dr.
Kahn qualified that conjecture by emphasizing that assessing
symptoms of physical ailments is outside his area of
31, 2012, Dr. Micha Abeles performed an internal medicine
consultative examination for Connecticut's Disability
Determination Services. Id. at 321. He reviewed
Kowalski's medical history including hepatitis C,
cirrhosis of the liver, hypothyroidism, and biopsy suggesting
prostate cancer. Id. At the time of Dr. Abeles'
evaluation, he noted Kowalski's PSA had dropped to within
normal limits without surgical intervention. Id. Dr.
Abeles noted Kowalski could walk, stand, sit for limited
periods, use his hands, reach, bend, and lift. Id.
He evaluated Kowalski and found good range of motion in his
joints, normal standing, gait, hand motion, and grip
strength. Id. at 322.
Abeles completed a second consultative examination on June
27, 2014. Id. at 374. He again reviewed
Kowalski's medical history and complaints of symptoms
including depression, anxiety, and fatigue. Id. In
addition, he documented a past arthroscopy of Kowalski's
knees and Kowalski's complaints of “balance
issues” and joint and back pain. Id. Dr.
Abeles' examination showed normal range of motion in
Kowalski's joints aside from reduced range of motion in
his metatarsophalangeal joints compatible with osteoarthritis.
Id. at 375. He also found reasonable motion of
Kowalski's back and normal standing, sitting, walking,
hand motion, and grip strength. Id.
Blick completed a Medical Source Statement of Physical
Ability to do Work-Related Activities on May 14, 2014.
Id. at 326. He opined Kowalski could never lift or
carry any weight, climb stairs, ramps, ladders, or scaffolds,
balance, stoop, kneel, crouch, or crawl. Id. at 327,
329. He added Kowalski could sit for two hours in an
eight-hour workday and stand or walk for one hour in an
eight-hour workday with the remainder of the day spent
sleeping or lying down. Id. at 327. He noted
Kowalski does not require a cane to walk. Id. He
also opined that Kowalski could never reach, handle, finger,
feel, push, or pull with either hand, and could occasionally
operate foot controls with either foot. Id. at 328.
However, Dr. Blick opined that Kowalski could shop, travel
alone, climb a few steps at a reasonable pace, prepare a
simple meal, feed himself, and maintain personal hygiene.
Id. at 331. Dr. Blick based his assessment on
Kowalski's hepatitis C, prostate cancer, and
hypogonadism, as well as fatigue, chronic diarrhea, impaired
ability to focus or concentrate, short-term memory deficit,
back pain, and depression. Id.
agency medical consultant Dr. Lewis Cylus reviewed
Kowalski's medical history and notes from an interview
with Kowalski to complete a physical Residual Functional
Capacity assessment on August 23, 2012. [Dkt. No. 12-4 at
82.] Dr. Cylus noted Kowalski has been diagnosed with chronic
liver disease and cirrhosis, prostate cancer, a thyroid
disorder, and affective disorder. Id. at 80. He
opined Kowalski retains the ability to occasionally lift or
carry up to 50 pounds, frequently lift or carry up to 25
pounds, sit, stand or walk 6 hours in an 8-hour workday, and
push or pull an unlimited amount. Id. at 82. Dr.
Cylus found no postural, manipulative, visual, communicative,
or environmental limitations. Id.
Susan Uber supplemented Dr. Cylus' report with a
psychiatric Residual Functional Capacity assessment on
September 10, 2012. [Dkt. No. 12-4 at 79.] She opined that
Kowalski's affective disorder is non-severe and mildly
restricts his activities of daily living, social functioning,
and ability to maintain concentration, persistence, or pace.
Id. Dr. Richard also noted Kowalski has experienced
“one or two” episodes of decompensation of
extended duration. Id.
agency medical consultant Dr. Angelina Jacobs reviewed
Kowalski's medical history and completed a physical
Residual Functional Capacity assessment on January 10, 2013.
Id. at 104. She noted Kowalski has been diagnosed
with chronic liver disease and cirrhosis, prostate cancer, a
thyroid disorder, and affective disorder. Id. She
concluded Kowalski did not experience “significant
limitations in [his] ability to perform basic work
activities.” Id. at 107.
Robert Decarli supplemented Dr. Jacobs' report with a
psychiatric Residual Functional Capacity assessment on
January 4, 2013. Id. at 105. Like Dr. Uber, Dr.
Decarli concluded that Kowalski's affective disorder
caused no more than mild limitations and one or two episodes
of decompensation and was overall non-severe. Id. at
105. To explain his findings, he noted Dr. Kahn's
psychological consultative examination revealed Kowalski
“related adequately” and retained “a wide
range of functional abilities.” Id.
The Claimant's Self-Assessment
March 30, 2012, Kowalski completed an Activities of Daily
Living questionnaire as part of his disability and
supplemental security application. [Dkt. No. 12-7 at 239.] In
it, he stated he suffers from pain, stiffness, fatigue, loss
of strength, inhibited memory and ability to focus.
Id. at 244. He estimated he can walk two blocks at a
time without stopping to rest on a good day. Id. at
245. He stated he can focus up to twenty minutes at a time,
does not follow written instructions well, and follows spoken
instructions moderately well (“so-so”).
Id. at 245. He stated he cooperates well with
authority figures and has never been terminated from a job
for failure to interact well with others. Id. He
stated he handles stress and changes in routine moderately
well (“so-so”). Id. Kowalski also
described his daily activities consistently with his hearing
testimony, which is discussed below.
The Hearing Before the ALJ
15, 2014, Kowalski appeared (with counsel) for a hearing
before an ALJ. [Dkt. No. 12-3 at 40.] Kowalski testified that
he last worked part-time teaching jujitsu roughly six hours a
week, and ceased all work after the onset of his alleged
disability. Id. at 48. Before that time, he was the
“owner, founder, and head instructor” of a
martial arts studio. Id. at 49.
is divorced with no children and lives alone in a rented room
in a larger house. Id. at 45. He wakes up between
8:00am and 11:00am each morning, depending on how well he
slept. Id. at 59. Getting out of bed is
“physically [a] very hard struggle” which can
take up to an hour. Id. at 59-60. He showers most
days, checks his email, reads, watches movies, and bird
watches. Id. at 46, 59. He cleans his living area by
himself and cooks simple meals including instant noodles,
oatmeal, and cereal. Id. at 46, 57-58. For exercise,
Kowalski walks around the block. Id. at 57.
Approximately once a week, Kowalski drives to the grocery
store and the library. Id. at 57-58. On good days,
while he's running errands Kowalski will visit his former
martial arts students. Id. at 58-59. Kowalski
estimates he visits his old students once or twice a months.
Id. at 58.
Plaintiff also discussed his medical history, indicating he
has had roughly six doctor's appointments in the last
year. Id. at 50. He has not had chemotherapy to
treat his prostate cancer but has instead
“self-treated, ” including taking melatonin and
other vitamin supplements. Id. at 50-51. Kowalski
likewise has only taken vitamins and supplements to treat his
hepatitis C. Id. at 51. He stated hepatitis C causes
him “chronic fatigue” and headaches, and he also
experiences digestive problems and incontinence which he
ascribes to “cirrhosis and hep C liver function.”
Id. at 52. The ALJ asked Kowalski whether there was
a diagnosed cause of his joint pain, and he stated it was
probably caused by “work . . . a lot of manual labor,
[and] some accidents.” Id. at 55. Kowalski
stated doctors have stated his joint pain was caused by
“wear and tear” and possible arthritis.
Id. Kowalski takes over-the-counter medication to
treat his digestive issues, and has one prescription for
digestive medication. Id. at 56.
stated he has anxiety and depression. Id. at 53. He
is not seeing a therapist but takes Xanax and Lexapro
sparingly. Id. Kowalski understands his depression
to be “a side effect of the physical stuff”
rather than a “primary issue.” Id. at
54. He described his symptoms as exhaustion, headaches and
other body aches, sinus problems, ...