United States District Court, E.D. Washington
VLADIMIR N. GORKOVCHENKO, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT
Van Sickle Senior United States District Judge
MATTER comes before the Court without oral argument based
upon cross motions for summary judgment. The plaintiff is
represented by Cory J. Brandt. The defendant is represented
by Jennifer A. Kenney.
N. Gorkovchenko was born on March 5, 1970. On April 1, 2012,
he went to a hospital complaining of numbness in his tongue
and jaw. (TR 244-45.) An emergency room physician diagnosed
stroke and admitted him to the hospital. The next day, he was
examined by a neurologist, who concluded the stroke had
resulted in “a very mild right facial droop and
dysarthria [speech disorder].” (TR 242.) The
neurologist went on to observe Mr. Gorkovchenko did not
appear to be suffering any “focal sensory or motor
deficits in the extremities and [his] gait and balance [were]
April 18, 2012, Mr. Gorkovchenko went to the Rockwood
Epilepsy and Stroke Center for a consultation with ARNP
Janette Worley. (TR 280.) Among other things, she performed a
“Physical Exam, ” a “Detailed Neurologic
Exam, ” and a “Mental Status Exam
(“MSE”).” (TR 283.) Mr. Gorkovchenko did
reasonably well on the latter, correctly answering 27 of the
30 questions. Id. Indeed, nowhere in her report does
ARNP Worley suggest, much less state, he suffered lasting
cognitive damage as a result of the stroke that prompted his
consultation with her.
14, 2012, Mr. Gorkovchenko applied for Title II disability
insurance benefits and Title XVI supplemental security
income. 42 U.S.C. §§ 401-434, 1381-1383f. The day
after, he went to Pavel Conovalciuc, M.D., complaining of
“memory loss.” (TR 333.) As part of the
examination, Dr. Conovalciuc performed a “cognitive
assessment.” (TR 334.) The assessment consisted of 33
questions that tested Mr. Gorkovchenko's
“orientation, ” “immediate recall,
“attention and calculation, ” “delayed
recall, ” and “language.” (TR 334-35.) Mr.
Gorkovchenko answered 28 of the 33 questions correctly.
August 17, 2012, the Social Security Administration denied
Mr. Gorkovchenko's DIB and SSI claims, whereupon he
requested reconsideration. In response to his request, the
Disability Determination Services arranged for Jeanette
Higgins, Psy.D., to complete a psychological assessment. Dr.
Higgins determined he suffers from cognitive disorder and
memory impairment. (TR 361.) Based upon her findings, Dr.
Higgins concluded Mr. Gorkovchenko does not “have the
ability to understand, remember, and carry out complex
instructions or to make complex work-related
decisions[.]” Id. Nor, in her opinion, does he
have “the ability to interact appropriately with the
Higgins' report was submitted to Diana Fligstein, Ph.D.,
a consulting psychologist. Dr. Fligstein disagreed with Dr.
Higgins' determination that Mr. Gorkovchenko's memory
is significantly impaired. For one thing, Dr. Fligstein noted
he has shown minimal indication of memory impairment when
examined by physicians. For another thing, she noted he is
successfully performing activities -- like driving a car --
that one would not expect him to be able to perform were he
as impaired as Dr. Higgins thinks. (TR 92.) In Dr.
Fligstein's opinion, Mr. Gorkovchenko is not disabled.
The SSA agreed with her assessment and denied his request for
reconsideration. (TR 93.)
point, Mr. Gorkovchenko exercised his right to a hearing
before an administrative law judge. Prior to the hearing, the
ALJ asked James Haynes, M.D., a neurologist, to review Mr.
Gorkovchenko's medical records. Dr. Haynes testified the
stroke Mr. Gorkovchenko suffered was “very
small.” (TR 36.) Dr. Haynes did not think it would
cause “a neurological deficit, ” id.,
nor did he think it would result in any “functional
limitations.” (TR 37.) As far as Dr. Haynes was
concerned, the stroke was not one which would cause
“any impairment.” Id.
20, 2014, the ALJ issued a written decision analyzing Mr.
Gorkovchenko's DIB and SSI claims pursuant to the
SSA's five-step sequential evaluation. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4). Mr. Gorkovchenko
challenges findings the ALJ made at steps two and four. Thus,
the focus will be on those two steps.
two, the ALJ had to decide whether Mr. Gorkovchenko is
severely impaired. 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). She found he suffers from a number of
severe impairments; namely, “status-post small
cardiovascular accident in April 2012; hypertension;
cardiomyopathy; knee pain with minimal objective findigs;
and pain disorder.” (TR 14.) However, contrary to Dr.
Higgins, the ALJ decided Mr. Gorkovchenko either does not
suffer from a cognitive disorder or, if he does, the disorder
antedated the 2012 stroke and does not impose any limitation
upon his ability to perform past relevant work. (TR 18.) Mr.
Gorkovchenko takes exception to the ALJ's finding with
respect to cognitive disorder.
four, the ALJ had to formulate Mr. Gorkovchenko's
residual functional capacity. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). Mr. Gorkovchenko's
RFC represents the “the most [he] can still do despite
[his] limitations.” 20 C.F.R. §§ 404.1545,
416.945. In order to complete that task, the ALJ had to
evaluate contradictory evidence. As it turned out, she
assigned “limited weight” to Mr.
Gorkovchenko's testimony (TR 23) and “little
weight” to Dr. Higgins' psychological assessment.
(TR 24.) By contrast, the ALJ gave “some weight”
to Dr. Haynes' testimony (TR 23) and she gave
“significant weight” to Dr. Fligstein's
opinion. (TR 24.) Based, in large part, upon those
determinations, the ALJ found that Mr. Gorkovchenko “is
capable of performing past relevant work, ” and, thus,
he is not disabled. (TR 25-6.) He disagrees with both the
ALJ's ultimate ruling and the adverse credibility
determinations upon which it rests.
Gorkovchenko asked the Appeals Council to review the
ALJ's unfavorable ruling, but on July 15, 2015, the
Council declined to do. Consequently, on that date, the
ALJ's ruling became the final decision of the
Commissioner of the Social Security Administration. 20 C.F.R.
§§ 404.984(b)(2), 416.1484(b)(2). Mr. Gorkovchenko
commenced this action on September 2, 2015. The Court has
jurisdiction over the subject matter of his claim. 42 U.S.C.