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Gorkovchenko v. Colvin

United States District Court, E.D. Washington

January 30, 2017

VLADIMIR N. GORKOVCHENKO, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT

          Fred Van Sickle Senior United States District Judge

         THIS 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.

         BACKGROUND

         Vladimir 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] good.” Id.

         On 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.

         On May 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. Id.

         On 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 public.” Id.

         Dr. 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.)

         At that 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.

         On June 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.

         At step 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[1]; hypertension; cardiomyopathy[2]; 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.

         At step 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.

         Mr. 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. § 405(g).

         STANDARD ...


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