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Kowalski v. Colvin

United States District Court, D. Connecticut

March 3, 2017



          VANESSA L. BRYANT, U.S.D.J.

         This is an administrative appeal following the denial of the Plaintiff, Greg Kowalski's, application for disability insurance benefits (“DIB”) and supplemental security income benefits (SSI).[1] It is brought pursuant to 42 U.S.C. §§ 405(g).

         Greg 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.]

         For the 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.

         I. Factual Background

         The following facts are taken from the parties' Joint Stipulation of Facts (“Joint Stipulation”) [Dkt. No. 17] unless otherwise indicated.

         a. Plaintiff's Background

         Kowalski 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.[2] Id. at 22.

         On 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.

         On May 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.

         b. Plaintiff's Medical History

         Kowalski's 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, [3] a biopsy and Prostate-Specific Antigen (“PSA”)[4] test indicated Kowalski had prostate adenocarcinoma.[5] 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).]

         On 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.[6] [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.

         On 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. Id.

         On 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, [7] insomnia, decreased libido, and lightheadedness. Id. Dr. Blick concluded Kowalski was “100% disabled” given his hepatitis C, hypogonadism, and prostate cancer. Id. at 351.

         On 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 347.

         On 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.

         c. Expert Examinations and Opinions

         On 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 expertise. Id.

         On July 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.

         Dr. 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[8] 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[9] 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.

         Dr. 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.

         State 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.

         Dr. 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.

         State 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.

         Dr. 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.

         d. The Claimant's Self-Assessment

         On 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.

         e. The Hearing Before the ALJ

         On May 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.

         Kowalski 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.

         The 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.

         He 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, ...

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