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Lathrop v. Berryhill

United States District Court, W.D. New York

March 29, 2002

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          DECISION & ORDER

          JONATHAN W. FELDMAN, United States Magistrate Judge

         Preliminary Statement

         Plaintiff Mandy Nicole Lathrop ("plaintiff" or "Lathrop") brings this action pursuant to Title II and Title XVI of the Social Security Act seeking review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her application for disability insurance benefits. See Complaint (Docket # 1). Presently before the Court are competing motions for judgment on the pleadings. See Docket ##9, 13. For the reasons that follow, the plaintiff's motion (Docket # 9) is granted, and the defendant's motion (Docket # 13) is denied.

         Background and Procedural History

         Plaintiff applied for disability benefits on July 16, 2012, alleging a disability beginning November 15, 2012 of depression, anxiety, Crohn's disease, scoliosis, PTSD, and back pain. AR at 174. These claims were initially denied on November 23, 2012. AR at 90-103. Plaintiff timely filed a request for a hearing. AR at 12. Plaintiff, represented by counsel, ' testified at the hearing before Administrative Law Judge Brian Kane (thenALJ") on July 11, 2014. Vocational Expert Peter Manzi (the "VE") also testified. AR at 48-84.

         The ALJ issued an unfavorable decision on August 25, 20.14. AR at 16-38. Plaintiff exhausted her administrative remedies by requesting review by the Appeals Council, which review was denied on October 22, 2015. AR at 1. She then filed this civil action on December 21, 2015. Docket # 1. The parties made competing motions for judgment oh the pleadings (see Docket ## 9, 13), and I heard oral argument on January 18, 2017 (see Docket # 18).

         Medical History

         Plaintiff's health has been mired by substance abuse, mental impairments, back pain, and abdominal pain. Most of the medical evidence pertains to her mental impairments and substance abuse. Because reports of her back and abdominal pain are often found together with mental health reports, I address all medical evidence chronologically below.

         In a questionnaire, plaintiff reported that she cooks, cleans, and takes her children to school. AR at 216, 221. She stated that she has trouble sleeping and can no longer stand for long periods of time. AR at 216. Plaintiff reported not being able to go out because of anxiety attacks and fear of people. AR at 218. She has a driver's license but does not go out alone or often. AR at 218. Plaintiff does not spend time with others. She reported not having any problems following instructions or paying attention. AR at 222.

         Plaintiff indicated that she first experienced pain stomach and back pain five years ago. AR at 223. Her anxiety began about ten years ago, and is brought on by stress, crowds, memories, or specific events. AR at 225. During these attacks, which occurred daily, plaintiff's heart beats fast, and she sweats and shakes. AR at 225.

         On August 16, 2010, plaintiff reported to English Road Psychotherapy Practice, complaining of stress, anxiety, and depression. AR at 290. She reported that her biological father was in jail for murder, that her step father raised her, and that she has a history of being sexually and physically abused. AR at 290-91. She also reported using marijuana, nicotine, and occasionally using alcohol, but never using cocaine. AR at 2 91. Plaintiff reported only sleeping a few hours per night. AR at 291. Therapist Gail Peterson, LCSW, [2] diagnosed plaintiff with depressive disorder. AR at 293.

         Plaintiff returned to Therapist Peterson with reports that her "anxiety is bad." AR at 294. She was oriented times three, but was depressed, and reported sleep problems. AR at 294. She also noted that Xanax was making her sleepy, and that she had a diminished appetite and weight loss. AR at 294.

         On October 4, 2010, plaintiff again presented to Therapist Peterson as oriented times three, but depressed and in pain. AR at 295. Later that month, on October 26, 2010, plaintiff was oriented times three and felt "up/down." AR at 295. She had a flattened affect. AR at 296. The following month, on November 9, 2010, plaintiff told Therapist Peterson that she had "kind of Walked out of [her] job" due to statements made by her boss. AR at 296. Plaintiff was oriented times three but anxious and focused on her problems. AR at 296. Therapist Peterson filled out a Psychological Assessment for Determination of Employability that same day. Therapist Peterson noted that plaintiff was anxious and depressed. AR at 373. She opined that plaintiff was moderately impaired (unable to function 10-25% of the time) in his capacity to follow instructions, perform simple tasks, maintain attention, attend to a routine, and perform low stress, simple tasks. AR at 373. Therapist Peterson concluded that plaintiff could work for 2 0 hours per week with accommodations such as a pre-planned schedule and ability to avoid crowds. AR at 374. Therapist Peterson expected these limitations to be necessary for three months. AR at 374. Plaintiff reported to the emergency department at Unity Health System on December 27, 2010 with sharp, intermittent abdominal pain, which was not consistent with her typical Crohn's pain. AR at 283.

         Plaintiff returned to Therapist Peterson on February 9, 2011, where she was oriented times three, but depressed and focused on her problems. She explained she had a lot going on, including being six months pregnant and having increased anxiety due to lack of sleep and appetite. AR at 297.

         On July 15, 2011, plaintiff presented to Sandra Boehlert, M.D., at the Monroe County Department of Social. Services for a Physical Assessment for Determination. of Employ ability. Plaintiff reported anxiety, depression, PTSD, Crohn's disease, and blackouts, although she was then pregnant and had not had a blackout in a year. AR at 376. Dr. Boehlert found that plaintiff had moderate to marked scoliosis, as well as Crohn's disease, and a * [p] sychology disorder." AR at 377. She opined that plaintiff had moderate limitations (2-4 hours} in walking, standing, pushing, and climbing the stairs. AR at 378-79. Dr. Boehlert concluded that plaintiff could work for up to 4 0 hours, with limitations such as avoiding heavy lifting (due to pregnancy or scoliosis), and frequent breaks for diarrheal episodes. AR at 379. She expected these limitations to last four months. AR at 3 78.

         Again, while pregnant, plaintiff underwent an Assessment for Determination of Employability, this time by Jennifer Mariani, RPA-C. Physician Assitant Miriani similarly estimated plaintiff's limitations, but opined that she could work for up to 4 0 hours per week. AR at 38 5.

         On May 16, 2012, plaintiff self-reported to Genesee Mental Health Center for a pre-admission screen. AR at 311. She reported PTSD, recurrent major depression, and anxiety disorder, with flashbacks and nightmares of past abuse (including being beaten up and raped). AR at 311. Plaintiff reported feeling isolated and tearful, and having difficulty leaving the house due to decreased energy. AR at 311. She reported excessive worry and panic, especially in social situations. AR at 311. Plaintiff also indicated that she consumes two two-liter bottles of Mountain Dew daily. The examiner noted that this consumption probably contributed to her anxiety. She presented with slowed speech and decreased motor activity. AR at 312. Although her thought process was organized, plaintiff reported occasional racing thoughts. AR at 312. Her affect was flat and she exhibited depression and anxiety, although her memory was intact. Plaintiff reported a suicide attempt when she was 15. AR at 311. Charlene Reeves, LMHC diagnosed plaintiff with PTSD, major depression, anxiety, and a GAF of 48. AR at 311-13. Her Crohn's disease was also referenced in this report. AR at 312.

         Several days later, on May 23, 2012, plaintiff saw Lynn McDonald at Genesee Mental Health Center. Plaintiff appeared to be restless, agitated, depressed, and anxious, with a flat affect, but oriented times three, with fair eye contact and intact memory. AR at 314. Plaintiff again presented on June 13, 2012, with slowed speech, a flat, affect, and an otherwise depressed and anxious mood. AR at 316.

         At that evaluation, Therapist Reeves completed a Psychological Assessment for Determination of Employability. Therapist Reeves opined that plaintiff would be very limited (unable to perform 25% of time) in capacity to perform simple and complex tasks independently, maintain attention, stick to a routine, and perform low stress simple tasks. AR at 390. Therapist Reeves determined that plaintiff would not be able to participate in any activities except for treatment or rehabilitation for one to three months. AR at 390.

         Plaintiff presented many of the same conditions to Ms. McDonald on June 20, 2012. This time, however, Ms. McDonald noted that plaintiff seemed extremely anxious due to finding out that her stepfather was terminally ill and that her friend's daughter was reported missing. AR at 317. A week later, on June 27, 2012, plaintiff presented to Ms. McDonald trembling, shaking, crying, and hyperventilating. AR at 318. It took plaintiff ten minutes to calm down. AR at 318. She reported feeling more stressed now that her children were home for the summer. AR at 318. Her speech and thought-process continued to be slow, and she presented as restless, depressed, and anxious, though her memory was intact. AR at 318.

         On July 13, 2012, plaintiff was seen by Dorota Gardy, M.D., for a psychiatric evaluation. At this visit, she appeared distressed, anxious, restless, and became easily tearful. AR at 323. Dr. Gardy found plaintiff's affect to be congruent, her attention adequate, and that she was oriented times three. AR at 3 23.. However, she struggled with chronological sequencing. AR at 323. She assigned plaintiff a GAF score of 55. AR at 323. Dr. Gardy recommended that plaintiff talk to her primary care physician, especially for her Crohn's disease. Dr. Gardy reinstated plaintiff's Klonopin prescription. AR at 3 23. Plaintiff denied using illicit substances, but Dr. Gardy ordered a urine screen. AR at 323.

         On July 30, 2012, plaintiff returned to Ms. McDonald with panic attacks, anxiety, and depressed mood. During that session, plaintiff reported a decreased intensity and frequency of panic attacks in the last two weeks, during which plaintiff leaves the room and goes outside for a few minutes. AR at 327. Ms. McDonald noted that plaintiff appeared calmer than usual, but that she was depressed and had a flat affect.

         Plaintiff saw Mohika Quistorf, R.N., on August 9, 2012, where she appeared to be anxious and depressed, and reported having a hard time leaving her house. AR at 328. Plaintiff returned to Ms. McDonald on August 22, 2012, where plaintiff reported continued anxiety and depression, and increased panic attacks due to a Child Protective Services investigation. AR at 329.

         On September 10, 2012, plaintiff's physician Jose E.' Lopez, M.D., indicated that plaintiff suffered from chronic back pain and scoliosis, and that she was seeing a specialist about possible Crohn's disease. AR at 412. He noted that plaintiff was not to work until she had seen the specialist. AR at 412. Therapist Annette Lee wrote similar letters in October and November asking that plaintiff be excused from tenant accountability class due to her depression, anxiety, and inability to leave the house. AR at 417.

         On September 12, 2012, plaintiff again saw Ms. McDonald with panic disorder and anxiety. On September 20, 2012, plaintiff returned to Ms. McDonald with continued anxiety and difficulty managing stress. AR at 438. Ms. McDonald noted that plaintiff was able to secure an appointment for her Crohn's disease. AR at 43 8. The following week, on September 27, 2012, plaintiff came to Ms. McDonald with decreasing levels of anxiety and desensitivity to stressful situations. AR at 440. Plaintiff noted that she had gone to a store but left after 15 minutes due to the stress; the therapist challenged plaintiff to view this as a positive step. AR at 440. The mental status exam revealed anxiety, agitation, and restlessness. AR at 440. On October 4, 2012, plaintiff appeared to her session with Ms. McDonald with anxiety, panic, sweating, and shaking. Her mental. status exam was largely the same. AR at 441.

         Plaintiff began to see a new therapist, Annette Lee, on October 12, 2012. During that session, plaintiff reported that her anxiety had been higher over the previous week because her children were demanding her attention. The mental status exam revealed the typical agitation, restlessness, anxiety, and depression. AR at 443.

         Christine Ransom, Ph.D. performed a psychiatric evaluation on plaintiff on October 17, 2012. Plaintiff told Dr. Ransom that she had been raped as a child, and her mother was repeatedly hospitalized for psychiatric issues, leaving plaintiff to feel emotionally abandoned. AR at 333. Plaintiff reported irritability, fatigue, wandering thoughts, and difficulty concentrating, as well as a lack of energy and willpower. AR at 333. She reported being afraid of leaving the house, blacking out, and being around people. During the examination, plaintiff also reported a history of alcohol and marijuana dependence, but asserted that she stopped using alcohol two years ago and marijuana in 1999. AR at 333. Dr. Ransom noted that plaintiff appeared lethargic, but her thought process was coherent and she was oriented times three. AR at 334. However, Dr. Ransom indicated that plaintiff's attention and concentration were mildly impaired by emotional disturbance and anxiety. Her immediate memory was mildly impaired. AR at 334. Dr. Ransom opined that plaintiff could understand and follow simple directions and instructions and perform simple tasks independently. AR at 335. She could maintain attention and concertation for these tasks, maintain a regular schedule, and learn simple, new tasks. However, she would have moderate difficulty performing complex tasks,, relating to others, and appropriately dealing with stress. Dr. Ransom diagnosed her with PTS'D, major depressive disorder, panic disorder, and alcohol and marijuana dependence. AR at 335. She also referenced plaintiff's scoliosis and Crohn's disease. AR. at 335. Dr. Ransom listed plaintiff's prognosis as fair.

         That same day, plaintiff saw Karl Eurenius, M.D., for an internal medical examination. Plaintiff complained of Crohn's disease, mental health issues, mild scoliosis, and blackouts. AR at 337. Dr. Eurenius noted that plaintiff had been diagnosed with Crohn's disease five years ago after having intermittent abdominal pain and multiple tests. AR at 337. However, plaintiff admitted that she had not had a colonoscopy or biopsy since her diagnosis. AR at 33 7. Without her Prednisone, plaintiff reported having chronic diarrhea. AR at 337. Plaintiff also reported having scoliosis, which she said is a stabbing, low back pain, and blackouts almost weekly. AR at 337. Plaintiff had hot had an MRI for the scoliosis and she had no neuropathic symptoms. AR at 3 37. Dr. Eurenius indicated that he could "not appreciate scoliosis." AR at 339. She denied use of alcohol or drugs, but acknowledged smoking a pack of cigarettes a day. AR at 338.

         Dr. Eurenius diagnosed plaintiff with probable Crohn's disease, but noted that she lacked a biopsy diagnosis. He also stated that plaintiff had. chronic back pain and blackout spells, both with uncertain etiology. AR at 34 0. Dr. Eurenius found that it was difficult to recommend limitations without a firm diagnosis, but opined that plaintiff would be markedly limited in activities where a blackout spell would injure herself or others. AR at 340. He also opined that plaintiff would be moderately limited in bending, lifting, carrying, and kneeling due to chronic low back pain. AR at 34 0.

         Plaintiff reported to Alyce Marks, R.N. for medication management on October 17, 2012, where plaintiff appeared depressed and anxious, and had negative ruminations. AR at 444. On November 8, 2012, plaintiff saw Therapist Lee with continued reports of anxiety, depression, and blackouts. Her affect was appropriate. AR at 448. She felt largely the same on November 27, 2012. There, plaintiff reported to Therapist Lee that she felt she could not leave the house to do the Christmas shopping. AR at 44 9. No mental status exam was performed.

         Plaintiff came to Dr. Gardy on December 6, 2012, with reports that she was not eating or drinking. Dr. Gardy advised plaintiff to slowly increase intake. AR at 447. On December 11, 2012, plaintiff reported to therapy feeling sad that she was not able to take her son to see Santa due to her anxiety. AR at 450. On January 10, 2013, plaintiff reported to Therapist ...

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