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Trice v. Astrue

March 24, 2008


The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge



Plaintiff Elizabeth M. Trice brings the above-captioned action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) of the Social Security Act, seeking review of the Commissioner of Social Security's decision based on the Administrative Law Judge's decision dated March 15, 2001, which denied her November 3, 1999, application for Supplemental Security Income ("SSI") benefits.


A. Plaintiff's Testimony

Plaintiff was born in February 1973. (Administrative Transcript ("T") at 109.) She attended school for nine years and then earned her GED. (T. at 39.) She worked sporadically in the late 1980s and early 1990s as a cashier at K-Mart and various fast-food restaurants. (T. at 153.) Plaintiff testified that she tried to work at a sit-down job "doing the cable parts" for two days in 2000, but stopped because her "body wouldn't allow it. It was just hurting too bad." (T. at 44.)

Regarding her mental condition, plaintiff testified that she suffers from depression and kleptomania. (T. at 50.) She began stealing from her family when she was eight or nine years old. (T. at 50.) She estimated that, in total, she had been fired from three jobs for stealing. (T. at 54.) At other jobs, she stole but was not caught. (T. at 54.) She has been incarcerated several times. (T. at 50.) Plaintiff testified that she takes Zoloft for her depression and to "slow down" her compulsion to steal. (T. at 41, 51.) It was effective at first, but over time she became "immune to it." (T. at 41-42.)

Regarding her physical condition, plaintiff testified that, as a result of childhood scoliosis and two car accidents in 1997, her "neck tingles all the way down the back, the lower back." (T. at 45-46.) She estimated that she could stand for ten minutes and sit for twenty minutes without having severe pain. (T. at 47-48.) At the time of the hearing, plaintiff was taking only Tylenol and Advil for her pain because she was pregnant. (T. at 45.) She testified that they did not help.

(T. at 45.)

Plaintiff testified that she spent a typical day "sitting around the house or going to the mall." (T. at 43.) Plaintiff testified that she sometimes does housework (T. at 43.) She testified that she shops by dividing her shopping into smaller trips. (T. at 43.) However, later in her testimony she stated that "I don't do my shopping" because "[a] gallon of milk is real heavy to me." (T. at 49.) Plaintiff stated that she is not able to do laundry because she cannot climb up and down the stairs. (T. at 48.) Plaintiff testified that she is able to drive three to four times per week. (T. at 43-44.)

B. Records Regarding Plaintiff's Mental Condition

According to plaintiff's medical records, she treated her mental condition with Thomas Falci, M.D., from October 1996 through March 1999. (T. at 280-296.) Dr. Falci diagnosed plaintiff with kleptomania and obsessive compulsive disorder and prescribed Paxil. (T. at 280.) On November 1, 1999, plaintiff returned to Dr. Falci "after a long absence." (T. at 466-467.)

Plaintiff reported that she had been in jail for eight months. She told Dr. Falci that she "thinks about stealing ... all the time." (T. at 466.) While in jail, she was prescribed Seroquel, Prozac and Desyrel. Plaintiff told Dr. Falci that the medications "helped her sleep and she felt calmer, but she was still (stealing) and obsessing." She stated that Paxil "helped her best in terms of decreasing the (stealing) although she did still do some of it on it. It greatly reduced the (stealing) but it was less helpful in terms of sleep and mood." (T. at 466.) Dr. Falci prescribed Paxil and Seroquel. (T. at 467.) Noting that plaintiff did not currently have Medicaid (T. at 466), Dr. Falci gave her a sample 28 day supply of Paxil. (T. at 467.) He stated that he would see her again in four weeks "and hopefully we will either have more samples or she will have Medicaid." (T. at 467.)

On December 1, 1999, Dr. Falci and Ron Lopez, CSWR, reported to the agency that plaintiff "always presented neatly groomed and dressed" and that her "mood (was) slightly depressed, with anxiety, calm when in compliance with medication ... Attention span and concentration fair. Remote memory good, recent fair to poor. No psychotic or delusional material. Insight and judgment (sic) are poor. She is capable of doing limited work." Dr. Falci and Mr. Lopez did not define what they meant by "limited work." (T. at 280.)

On February 8, 2000, Dennis Noia, Ph.D, performed a consultative psychiatric evaluation.

(T. at 440-443.) Dr. Noia noted that plaintiff: states she was seeing Dr. Falci at Syracuse Community Health Center and she was prescribed various medications, including Prozac and Paxil. She left this examiner with the impression that she is in treatment presently, but upon further questioning, it became clear that she is currently not on any medications, and it has been at least a few months since she has been on any medications. Additionally, this examiner learned that she was incarcerated over time for, she states, at least 5 years and was released from prison in September 1999. When asked about her stating that she was seeing Dr. Falci every 2 weeks to every month from 1996, she became silent. It should be noted that Ms. Trice was essentially uncooperative throughout the examination, and appeared to be extremely depressed. However, her overall appearance and lack of forthcoming regarding her past raises suspicion about malingering.

(T. at 440.) Regarding plaintiff's appearance, Dr. Noia noted that "her mode of dress, clothing, hair style, and overall personal maintenance was of a very high degree and very rarely found on an individual who is as depressed as she was reporting to be." (T. at 441.) Dr. Noia's medical source statement was that: it is difficult to assess what Ms. Trice is able to do and what she is not able to do given this examiner's present suspicions that she may be malingering. Therefore, rather than making a definitive statement about her abilities and rather than stating whether results of this examination are consistent with any allegations, at the present time this examiner believes that malingering needs to be ruled out ... It is recommended that if Ms. Trice is indeed as depressed as she is presenting to be, (she) should be involved in intensive psychiatric and psychological treatment and on medications to help with the depression. It is also recommended that additional information be gathered from whatever source is available to help complete a picture of Ms. Trice's overall functioning at the present time. It may be helpful to administer an intelligence evaluation to ascertain whether or not malingering may be present in that if she performs extremely poorly relative to her adaptive skills and overall presentation, the likelihood of malingering increases.

(T. at 442-443.)

In a Psychiatric Review Technique form dated February 17, 2000, agency medical consultant Carlos Gieseken, M.D., opined that a mental residual functional capacity ("RFC") assessment was necessary because "a severe impairment is present which does not meet or equal a listed impairment." (T. at 457.) Dr. Gieseken found that plaintiff has no limitations on activities of daily living, slight difficulties in maintaining social functioning, seldom suffers from deficiencies of concentration, persistence or pace, and has never had an episode of deterioration or decompensation in a work or work-like setting. (T. at 464.)

Dr. Gieseken then signed a Mental RFC Assessment form. He opined that plaintiff suffers from moderate limitations in her ability to understand and remember detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods, sustain an ordinary routine without special supervision, respond appropriately to changes in the work setting, and set realistic goals or make plans independently of others. (T. at 452-453.)

On July 24, 2000, plaintiff saw S. Fernando, M.D., for a follow-up evaluation*fn2 regarding her mental status. (T. at 471.) Plaintiff reported "that she has been experiencing anesthesia urge for stealing and she continued to steal but was not caught. .. She reports of compulsive stealing, losing control, becoming impulsive and not able to resist. She had been treated with many medications and currently is receiving Seroquel and Paxil ... She had been taking Seroquel up to 500 mg when she was in jail and nothing helps her problem. She, also, feels depression, anxiety, losing interest and strongly preoccupied with her stealing habit. She was not treated with lithium in the past and she is medically stable." (T. at 471.) Dr. Fernando prescribed lithium and directed plaintiff to also continue taking her Paxil. (T. at 471.)

On October 13, 2000, plaintiff returned to Dr. Fernando. (T. at 472.) She reported that she had stopped taking Prozac due to her pregnancy. (T. at 472.) Plaintiff "wished to resume her antidepressant although she is aware that her pregnancy may be effected ... so she declined the antidepressant. When she believes that she requires it she will start medication for her depression in order to avoid further relapse ... She will start Zoloft 50 mg once a day." (T. at 472.) Dr. Fernando advised plaintiff to return in one week. (T. at 472.)

On October 19, 2000, plaintiff followed up with Dr. Fernando. (T. at 473.) She reported that she continued to feel anxious and depressed. (T. at 473.) She asked to continue her medication in order to avoid a relapse. (T. at 473.) Dr. Fernando stated that "[i]f she could avoid the medication at this time it may be beneficial. The patient will decide on this issue." (T. at ...

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